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G.R. No.

127325 March 19, 1997 newspapers of general and local Upon the filing of the Delfin Petition, which was forthwith
circulation; given the number UND 96-037 (INITIATIVE), the COMELEC,
through its Chairman, issued an Order 11 (a) directing Delfin
MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA,
"to cause the publication of the petition, together with the
and MARIA ISABEL ONGPIN, petitioners, 3. Instructing Municipal Election
attached Petition for Initiative on the 1987 Constitution
vs. Registrars in all Regions of the
(including the proposal, proposed constitutional amendment,
COMMISSION ON ELECTIONS, JESUS DELFIN, Philippines, to assist Petitioners and
and the signature form), and the notice of hearing in three (3)
ALBERTO PEDROSA & CARMEN PEDROSA, in their volunteers, in establishing signing
daily newspapers of general circulation at his own expense"
capacities as founding members of the People's stations at the time and on the dates
not later than 9 December 1996; and (b) setting the case for
Initiative for Reforms, Modernization and Action designated for the purpose.
hearing on 12 December 1996 at 10:00 a.m.
(PIRMA), respondents.
Delfin alleged in his petition that he is a founding member of
At the hearing of the Delfin Petition on 12 December 1996,
SENATOR RAUL S. ROCO, DEMOKRASYA- the Movement for People's Initiative,6 a group of citizens
the following appeared: Delfin and Atty. Pete Q. Quadra;
IPAGTANGGOL ANG KONSTITUSYON (DIK), desirous to avail of the system intended to institutionalize
representatives of the People's Initiative for Reforms,
MOVEMENT OF ATTORNEYS FOR BROTHERHOOD people power; that he and the members of the Movement
Modernization and Action (PIRMA); intervenor-oppositor
INTEGRITY AND NATIONALISM, INC. (MABINI), and other volunteers intend to exercise the power to directly
Senator Raul S. Roco, together with his two other lawyers,
INTEGRATED BAR OF THE PHILIPPINES (IBP), and propose amendments to the Constitution granted under
and representatives of, or counsel for, the Integrated Bar of
LABAN NG DEMOKRATIKONG PILIPINO Section 2, Article XVII of the Constitution; that the exercise of
the Philippines (IBP), Demokrasya-Ipagtanggol ang
(LABAN), petitioners-intervenors. that power shall be conducted in proceedings under the
Konstitusyon (DIK), Public Interest Law Center, and Laban
control and supervision of the COMELEC; that, as required
ng Demokratikong Pilipino (LABAN). 12 Senator Roco, on
in COMELEC Resolution No. 2300, signature stations shall
that same day, filed a Motion to Dismiss the Delfin Petition
be established all over the country, with the assistance of
DAVIDE, JR., J.: on the ground that it is not the initiatory petition properly
municipal election registrars, who shall verify the signatures
cognizable by the COMELEC.
affixed by individual signatories; that before the Movement
The heart of this controversy brought to us by way of a and other volunteers can gather signatures, it is necessary
petition for prohibition under Rule 65 of the Rules of Court is that the time and dates to be designated for the purpose be After hearing their arguments, the COMELEC directed Delfin
the right of the people to directly propose amendments to the first fixed in an order to be issued by the COMELEC; and and the oppositors to file their "memoranda and/or
Constitution through the system of initiative under Section 2 that to adequately inform the people of the electoral process oppositions/memoranda" within five days. 13
of Article XVII of the 1987 Constitution. Undoubtedly, this involved, it is likewise necessary that the said order, as well
demands special attention, as this system of initiative was as the Petition on which the signatures shall be affixed, be
On 18 December 1996, the petitioners herein — Senator
unknown to the people of this country, except perhaps to a published in newspapers of general and local circulation,
Miriam Defensor Santiago, Alexander Padilla, and Maria
few scholars, before the drafting of the 1987 Constitution. under the control and supervision of the COMELEC.
Isabel Ongpin — filed this special civil action for prohibition
The 1986 Constitutional Commission itself, through the
raising the following arguments:
original proponent1 and the main sponsor2 of the proposed
The Delfin Petition further alleged that the provisions sought
Article on Amendments or Revision of the Constitution,
to be amended are Sections 4 and 7 of Article VI,7Section 4
characterized this system as "innovative".3 Indeed it is, for (1) The constitutional provision on
of Article VII,8 and Section 8 of Article X9 of the Constitution.
both under the 1935 and 1973 Constitutions, only two people's initiative to amend the
Attached to the petition is a copy of a "Petition for Initiative
methods of proposing amendments to, or revision of, the Constitution can only be implemented by
on the 1987 Constitution" 10 embodying the proposed
Constitution were recognized, viz., (1) by Congress upon a law to be passed by Congress. No such
amendments which consist in the deletion from the
vote of three-fourths of all its members and (2) by a law has been passed; in fact, Senate Bill
aforecited sections of the provisions concerning term limits,
constitutional convention.4 For this and the other reasons No. 1290 entitled An Act Prescribing and
and with the following proposition:
hereafter discussed, we resolved to give due course to this Regulating Constitution Amendments by
petition. People's Initiative, which petitioner
DO YOU APPROVE OF LIFTING THE Senator Santiago filed on 24 November
TERM LIMITS OF ALL ELECTIVE 1995, is still pending before the Senate
On 6 December 1996, private respondent Atty. Jesus S.
GOVERNMENT OFFICIALS, Committee on Constitutional
Delfin filed with public respondent Commission on Elections
AMENDING FOR THE PURPOSE Amendments.
(hereafter, COMELEC) a "Petition to Amend the Constitution,
SECTIONS 4 AND 7 OF ARTICLE VI,
to Lift Term Limits of Elective Officials, by People's Initiative"
SECTION 4 OF ARTICLE VII, AND
(hereafter, Delfin Petition)5 wherein Delfin asked the (2) It is true that R.A. No. 6735 provides
SECTION 8 OF ARTICLE X OF THE
COMELEC for an order for three systems of initiative, namely,
1987 PHILIPPINE CONSTITUTION?
initiative on the Constitution, on statutes,
and on local legislation. However, it
1. Fixing the time and dates for
According to Delfin, the said Petition for Initiative will first be failed to provide any subtitle on initiative
signature gathering all over the country;
submitted to the people, and after it is signed by at least on the Constitution, unlike in the other
twelve per cent of the total number of registered voters in the modes of initiative, which are specifically
2. Causing the necessary publications of country it will be formally filed with the COMELEC. provided for in Subtitle II and Subtitle III.
said Order and the attached "Petition for This deliberate omission indicates that
Initiative on the 1987 Constitution, in the matter of people's initiative to amend
the Constitution was left to some future issues raised demands that this petition for prohibition be UPHELD BY THE HONORABLE
law. Former Senator Arturo Tolentino settled promptly and definitely, brushing aside technicalities COURT IN ITS RECENT SEPTEMBER
stressed this deficiency in the law in his of procedure and calling for the admission of a taxpayer's 26, 1996 DECISION IN THE CASE
privilege speech delivered before the and legislator's suit. 14 Besides, there is no other plain, OF SUBIC BAY METROPOLITAN
Senate in 1994: "There is not a single speedy, and adequate remedy in the ordinary course of law. AUTHORITY VS. COMELEC, ET AL.
word in that law which can be G.R. NO. 125416;
considered as implementing [the
On 19 December 1996, this Court (a) required the
provision on constitutional initiative].
respondents to comment on the petition within a non- 4. REP. ACT NO. 6735 APPROVED ON
Such implementing provisions have
extendible period of ten days from notice; and (b) issued a AUGUST 4, 1989 IS THE ENABLING
been obviously left to a separate law.
temporary restraining order, effective immediately and LAW IMPLEMENTING THE POWER
continuing until further orders, enjoining public respondent OF PEOPLE INITIATIVE TO PROPOSE
(3) Republic Act No. 6735 provides for COMELEC from proceeding with the Delfin Petition, and AMENDMENTS TO THE
the effectivity of the law after publication private respondents Alberto and Carmen Pedrosa from CONSTITUTION. SENATOR
in print media. This indicates that the Act conducting a signature drive for people's initiative to amend DEFENSOR-SANTIAGO'S SENATE
covers only laws and not constitutional the Constitution. BILL NO. 1290 IS A DUPLICATION OF
amendments because the latter take WHAT ARE ALREADY PROVIDED
effect only upon ratification and not after FOR IN REP. ACT NO. 6735;
On 2 January 1997, private respondents, through Atty
publication.
Quadra, filed their Comment 15 on the petition. They argue
therein that: 5. COMELEC RESOLUTION NO. 2300
(4) COMELEC Resolution No. 2300, PROMULGATED ON JANUARY 16,
adopted on 16 January 1991 to govern 1991 PURSUANT TO REP. ACT 6735
1. IT IS NOT TRUE THAT "IT WOULD
"the conduct of initiative on the WAS UPHELD BY THE HONORABLE
ENTAIL EXPENSES TO THE
Constitution and initiative and COURT IN THE RECENT SEPTEMBER
NATIONAL TREASURY FOR
referendum on national and local laws, 26, 1996 DECISION IN THE CASE
GENERAL REGISTRATION OF
is ultra vires insofar as initiative on OF SUBIC BAY METROPOLITAN
VOTERS AMOUNTING TO AT LEAST
amendments to the Constitution is AUTHORITY VS. COMELEC, ET AL.
PESOS: ONE HUNDRED EIGHTY
concerned, since the COMELEC has no G.R. NO. 125416 WHERE THE
MILLION (P180,000,000.00)" IF THE
power to provide rules and regulations HONORABLE COURT SAID: "THE
"COMELEC GRANTS THE PETITION
for the exercise of the right of initiative to COMMISSION ON ELECTIONS CAN
FILED BY RESPONDENT DELFIN
amend the Constitution. Only Congress DO NO LESS BY SEASONABLY AND
BEFORE THE COMELEC.
is authorized by the Constitution to pass JUDICIOUSLY PROMULGATING
the implementing law. GUIDELINES AND RULES FOR BOTH
2. NOT A SINGLE CENTAVO WOULD NATIONAL AND LOCAL USE, IN
BE SPENT BY THE NATIONAL IMPLEMENTING OF THESE LAWS."
(5) The people's initiative is limited
GOVERNMENT IF THE COMELEC
to amendments to the Constitution, not
GRANTS THE PETITION OF
to revision thereof. Extending or lifting of 6. EVEN SENATOR DEFENSOR-
RESPONDENT DELFIN. ALL
term limits constitutes a revision and is, SANTIAGO'S SENATE BILL NO. 1290
EXPENSES IN THE SIGNATURE
therefore, outside the power of the CONTAINS A PROVISION
GATHERING ARE ALL FOR THE
people's initiative. DELEGATING TO THE COMELEC THE
ACCOUNT OF RESPONDENT DELFIN
POWER TO "PROMULGATE SUCH
AND HIS VOLUNTEERS PER THEIR
RULES AND REGULATIONS AS MAY
(6) Finally, Congress has not yet PROGRAM OF ACTIVITIES AND
BE NECESSARY TO CARRY OUT THE
appropriated funds for people's initiative; EXPENDITURES SUBMITTED TO THE
PURPOSES OF THIS ACT." (SEC. 12,
neither the COMELEC nor any other COMELEC. THE ESTIMATED COST
S.B. NO. 1290, ENCLOSED AS ANNEX
government department, agency, or OF THE DAILY PER DIEM OF THE
E, PETITION);
office has realigned funds for the SUPERVISING SCHOOL TEACHERS
purpose. IN THE SIGNATURE GATHERING TO
BE DEPOSITED and TO BE PAID BY 7. THE LIFTING OF THE LIMITATION
DELFIN AND HIS VOLUNTEERS IS ON THE TERM OF OFFICE OF
To justify their recourse to us via the special civil action for
P2,571,200.00; ELECTIVE OFFICIALS PROVIDED
prohibition, the petitioners allege that in the event the
UNDER THE 1987 CONSTITUTION IS
COMELEC grants the Delfin Petition, the people's initiative
NOT A "REVISION" OF THE
spearheaded by PIRMA would entail expenses to the 3. THE PENDING PETITION BEFORE
CONSTITUTION. IT IS ONLY AN
national treasury for general re-registration of voters THE COMELEC IS ONLY ON THE
AMENDMENT. "AMENDMENT
amounting to at least P180 million, not to mention the SIGNATURE GATHERING WHICH BY
ENVISAGES AN ALTERATION OF
millions of additional pesos in expenses which would be LAW COMELEC IS DUTY BOUND "TO
ONE OR A FEW SPECIFIC
incurred in the conduct of the initiative itself. Hence, the SUPERVISE CLOSELY" PURSUANT
PROVISIONS OF THE
transcendental importance to the public and the nation of the TO ITS "INITIATORY JURISDICTION"
CONSTITUTION. REVISION term limits. It does not seek to of the COMELEC to implement the
CONTEMPLATES A RE-EXAMINATION reexamine or overhaul the entire provisions of R.A. No. 6735 was in fact
OF THE ENTIRE DOCUMENT TO document. upheld by this Court in Subic Bay
DETERMINE HOW AND TO WHAT Metropolitan Authority vs. COMELEC.
EXTENT IT SHOULD BE ALTERED."
As to the public expenditures for registration of voters, Delfin
(PP. 412-413, 2ND. ED. 1992, 1097
considers petitioners' estimate of P180 million as unreliable, On 14 January 1997, this Court (a) confirmed nunc pro
PHIL. CONSTITUTION, BY JOAQUIN
for only the COMELEC can give the exact figure. Besides, if tunc the temporary restraining order; (b) noted the
G. BERNAS, S.J.).
there will be a plebiscite it will be simultaneous with the 1997 aforementioned Comments and the Motion to Lift Temporary
Barangay Elections. In any event, fund requirements Restraining Order filed by private respondents through Atty.
Also on 2 January 1997, private respondent Delfin filed in his for initiative will be a priority government expense because it Quadra, as well as the latter's Manifestation stating that he is
own behalf a Comment 16 which starts off with an assertion will be for the exercise of the sovereign power of the people. the counsel for private respondents Alberto and Carmen
that the instant petition is a "knee-jerk reaction to a draft Pedrosa only and the Comment he filed was for the
'Petition for Initiative on the 1987 Constitution'. . . which is Pedrosas; and (c) granted the Motion for Intervention filed on
In the Comment 17 for the public respondent COMELEC, filed
not formally filed yet." What he filed on 6 December 1996 6 January 1997 by Senator Raul Roco and allowed him to
also on 2 January 1997, the Office of the Solicitor General
was an "Initiatory Pleading" or "Initiatory Petition," which was file his Petition in Intervention not later than 20 January
contends that:
legally necessary to start the signature campaign to amend 1997; and (d) set the case for hearing on 23 January 1997 at
the Constitution or to put the movement to gather signatures 9:30 a.m.
under COMELEC power and function. On the substantive (1) R.A. No. 6735 deals with, inter alia,
allegations of the petitioners, Delfin maintains as follows: people's initiative to amend the
On 17 January 1997, the Demokrasya-Ipagtanggol ang
Constitution. Its Section 2 on Statement
Konstitusyon (DIK) and the Movement of Attorneys for
of Policy explicitly affirms, recognizes,
(1) Contrary to the claim of the Brotherhood Integrity and Nationalism, Inc. (MABINI), filed a
and guarantees that power; and its
petitioners, there is a law, R.A. No. Motion for Intervention. Attached to the motion was their
Section 3, which enumerates the three
6735, which governs the conduct Petition in Intervention, which was later replaced by an
systems of initiative, includes initiative
of initiative to amend the Constitution. Amended Petition in Intervention wherein they contend that:
on the Constitution and defines the
The absence therein of a subtitle for
same as the power to propose
such initiative is not fatal, since subtitles
amendments to the Constitution. (1) The Delfin proposal does not involve
are not requirements for the validity or
Likewise, its Section 5 repeatedly a mere amendment to, but a revision of,
sufficiency of laws.
mentions initiative on the Constitution. the Constitution because, in the words
of Fr. Joaquin Bernas, S.J., 18 it would
(2) Section 9(b) of R.A. No. 6735 involve a change from a political
(2) A separate subtitle on initiative on
specifically provides that the proposition philosophy that rejects unlimited tenure
the Constitution is not necessary in R.A.
in an initiative to amend the Constitution to one that accepts unlimited tenure;
No. 6735 because, being national in
approved by the majority of the votes and although the change might appear
scope, that system of initiative is
cast in the plebiscite shall become to be an isolated one, it can affect other
deemed included in the subtitle on
effective as of the day of the plebiscite. provisions, such as, on synchronization
National Initiative and Referendum; and
of elections and on the State policy of
Senator Tolentino simply overlooked
guaranteeing equal access to
(3) The claim that COMELEC Resolution pertinent provisions of the law when he
opportunities for public service and
No. 2300 is ultra vires is contradicted by claimed that nothing therein was
prohibiting political
(a) Section 2, Article IX-C of the provided for initiative on the
dynasties. 19 A revision cannot be done
Constitution, which grants the Constitution.
by initiative which, by express provision
COMELEC the power to enforce and
of Section 2 of Article XVII of the
administer all laws and regulations
(3) Senate Bill No. 1290 is neither a Constitution, is limited to amendments.
relative to the conduct of an election,
competent nor a material proof that R.A.
plebiscite, initiative, referendum, and
No. 6735 does not deal with initiative on
recall; and (b) Section 20 of R.A. 6735, (2) The prohibition against reelection of
the Constitution.
which empowers the COMELEC to the President and the limits provided for
promulgate such rules and regulations all other national and local elective
as may be necessary to carry out the (4) Extension of term limits of elected officials are based on the philosophy of
purposes of the Act. officials constitutes a mere amendment governance, "to open up the political
to the Constitution, not a revision arena to as many as there are Filipinos
thereof. qualified to handle the demands of
(4) The proposed initiative does not
leadership, to break the concentration of
involve a revision of, but
political and economic powers in the
mere amendment to, the Constitution (5) COMELEC Resolution No. 2300 was hands of a few, and to promote effective
because it seeks to alter only a few validly issued under Section 20 of R.A.
proper empowerment for participation in
specific provisions of the Constitution, or No. 6735 and under the Omnibus policy and decision-making for the
more specifically, only those which lay Election Code. The rule-making power
common good"; hence, to remove the Senate Bill No. 17 and House Bill No. 21505; he co-authored Petition in Intervention within a nonextendible period of three
term limits is to negate and nullify the the House Bill and even delivered a sponsorship speech days from notice, and the respondents to comment thereon
noble vision of the 1987 Constitution. thereon. He likewise submits that the COMELEC was within a nonextendible period of five days from receipt of the
empowered under Section 20 of that law to promulgate said Petition in Intervention.
COMELEC Resolution No. 2300. Nevertheless, he contends
(3) The Delfin proposal runs counter to
that the respondent Commission is without jurisdiction to
the purpose of initiative, particularly in a At the hearing of the case on 23 January 1997, the parties
take cognizance of the Delfin Petition and to order its
conflict-of-interest situation. Initiative is argued on the following pivotal issues, which the Court
publication because the said petition is not the initiatory
intended as a fallback position that may formulated in light of the allegations and arguments raised in
pleading contemplated under the Constitution, Republic Act
be availed of by the people only if they the pleadings so far filed:
No. 6735, and COMELEC Resolution No. 2300. What vests
are dissatisfied with the performance of
jurisdiction upon the COMELEC in an initiative on the
their elective officials, but not as a
Constitution is the filing of a petition for initiative which 1. Whether R.A. No. 6735, entitled An
premium for good performance. 20
is signed by the required number of registered voters. He Act Providing for a System of Initiative
also submits that the proponents of a constitutional and Referendum and Appropriating
(4) R.A. No. 6735 is deficient and amendment cannot avail of the authority and resources of Funds Therefor, was intended to include
inadequate in itself to be called the the COMELEC to assist them is securing the required or cover initiative on amendments to the
enabling law that implements the number of signatures, as the COMELEC's role in an initiative Constitution; and if so, whether the Act,
people's initiative on amendments to the on the Constitution is limited to the determination of the as worded, adequately covers
Constitution. It fails to state (a) the sufficiency of the initiative petition and the call and such initiative.
proper parties who may file the petition, supervision of a plebiscite, if warranted.
(b) the appropriate agency before whom
2. Whether that portion of COMELEC
the petition is to be filed, (c) the contents
On 20 January 1997, LABAN filed a Motion for Leave to Resolution No. 2300 (In re: Rules and
of the petition, (d) the publication of the
Intervene. Regulations Governing the Conduct of
same, (e) the ways and means of
Initiative on the Constitution, and
gathering the signatures of the voters
Initiative and Referendum on National
nationwide and 3% per legislative The following day, the IBP filed a Motion for Intervention to
and Local Laws) regarding the conduct
district, (f) the proper parties who may which it attached a Petition in Intervention raising the
of initiative on amendments to the
oppose or question the veracity of the following arguments:
Constitution is valid, considering the
signatures, (g) the role of the COMELEC
absence in the law of specific provisions
in the verification of the signatures and
(1) Congress has failed to enact an on the conduct of such initiative.
the sufficiency of the petition, (h) the
enabling law mandated under Section 2,
appeal from any decision of the
Article XVII of the 1987 Constitution.
COMELEC, (I) the holding of a 3. Whether the lifting of term limits of
plebiscite, and (g) the appropriation of elective national and local officials, as
funds for such people's initiative. (2) COMELEC Resolution No. 2300 proposed in the draft "Petition for
Accordingly, there being no enabling cannot substitute for the required Initiative on the 1987 Constitution,"
law, the COMELEC has no jurisdiction implementing law on the initiative to would constitute a revision of, or an
to hear Delfin's petition. amend the Constitution. amendment to, the Constitution.

(5) The deficiency of R.A. No. 6735 (3) The Petition for Initiative suffers from 4. Whether the COMELEC can take
cannot be rectified or remedied by a fatal defect in that it does not have the cognizance of, or has jurisdiction over, a
COMELEC Resolution No. 2300, since required number of signatures. petition solely intended to obtain an
the COMELEC is without authority to order (a) fixing the time and dates for
legislate the procedure for a signature gathering; (b) instructing
people's initiative under Section 2 of (4) The petition seeks, in effect a
municipal election officers to assist
Article XVII of the Constitution. That revision of the Constitution, which can
Delfin's movement and volunteers in
be proposed only by Congress or a
function exclusively pertains to establishing signature stations; and (c)
Congress. Section 20 of R.A. No. 6735 constitutional convention. 22
directing or causing the publication
does not constitute a legal basis for the of, inter alia, the unsigned proposed
Resolution, as the former does not set a On 21 January 1997, we promulgated a Resolution (a) Petition for Initiative on the 1987
sufficient standard for a valid delegation granting the Motions for Intervention filed by the DIK and Constitution.
of power. MABINI and by the IBP, as well as the Motion for Leave to
Intervene filed by LABAN; (b) admitting the Amended
5. Whether it is proper for the Supreme
On 20 January 1997, Senator Raul Roco filed his Petition in Petition in Intervention of DIK and MABINI, and the Petitions
Court to take cognizance of the petition
Intervention. 21 He avers that R.A. No. 6735 is the enabling in Intervention of Senator Roco and of the IBP; (c) requiring
when there is a pending case before the
the respondents to file within a nonextendible period of five
law that implements the people's right to initiate COMELEC.
constitutional amendments. This law is a consolidation of days their Consolidated Comments on the aforesaid
Petitions in Intervention; and (d) requiring LABAN to file its
After hearing them on the issues, we required the parties to 29. The writ of prohibition is an from further proceedings in the action or
submit simultaneously their respective memoranda within extraordinary judicial writ issuing out of a matter specified therein.
twenty days and requested intervenor Senator Roco to court of superior jurisdiction and directed
submit copies of the deliberations on House Bill No. 21505. to an inferior court, for the purpose of
It must also be noted that intervenor Roco claims that the
preventing the inferior tribunal from
COMELEC has no jurisdiction over the Delfin Petition
usurping a jurisdiction with which it is not
On 27 January 1997, LABAN filed its Petition in Intervention because the said petition is not supported by the required
legally vested. (People v. Vera, supra.,
wherein it adopts the allegations and arguments in the main minimum number of signatures of registered voters. LABAN
p. 84). In this case the writ is an urgent
Petition. It further submits that the COMELEC should have also asserts that the COMELEC gravely abused its
necessity, in view of the highly divisive
dismissed the Delfin Petition for failure to state a sufficient discretion in refusing to dismiss the Delfin Petition, which
and adverse environmental
cause of action and that the Commission's failure or refusal does not contain the required number of signatures. In light
consequences on the body politic of the
to do so constituted grave abuse of discretion amounting to of these claims, the instant case may likewise be treated as
questioned Comelec order. The
lack of jurisdiction. a special civil action for certiorari under Section I of Rule 65
consequent climate of legal confusion
of the Rules of Court.
and political instability begs for judicial
On 28 January 1997, Senator Roco submitted copies of statesmanship.
portions of both the Journal and the Record of the House of In any event, as correctly pointed out by intervenor Roco in
Representatives relating to the deliberations of House Bill his Memorandum, this Court may brush aside technicalities
30. In the final analysis, when the
No. 21505, as well as the transcripts of stenographic notes of procedure in
system of constitutional law is
on the proceedings of the Bicameral Conference Committee, cases of transcendental importance. As we stated
threatened by the political ambitions of 28
Committee on Suffrage and Electoral Reforms, of 6 June in Kilosbayan, Inc. v. Guingona, Jr.
man, only the Supreme Court
1989 on House Bill No. 21505 and Senate Bill No. 17.
can save a nation in peril and uphold the
paramount majesty of the A party's standing before this Court is a
Private respondents Alberto and Carmen Pedrosa filed their Constitution. 25 procedural technicality which it may, in
Consolidated Comments on the Petitions in Intervention of the exercise of its discretion, set aside in
Senator Roco, DIK and MABINI, and IBP. 23 The parties view of the importance of issues raised.
It must be recalled that intervenor Roco filed with the
thereafter filed, in due time, their separate memoranda. 24 In the landmark Emergency Powers
COMELEC a motion to dismiss the Delfin Petition on the
Cases, this Court brushed aside this
ground that the COMELEC has no jurisdiction or authority to
technicality because the transcendental
As we stated in the beginning, we resolved to give due entertain the petition. 26 The COMELEC made no ruling
importance to the public of these cases
course to this special civil action. thereon evidently because after having heard the arguments
demands that they be settled promptly
of Delfin and the oppositors at the hearing on 12 December
and definitely, brushing aside, if we
1996, it required them to submit within five days their
For a more logical discussion of the formulated issues, we must, technicalities of procedure.
memoranda or oppositions/memoranda. 27 Earlier, or
shall first take up the fifth issue which appears to pose a specifically on 6 December 1996, it practically gave due
prejudicial procedural question.
course to the Delfin Petition by ordering Delfin to cause the II
publication of the petition, together with the attached Petition
I for Initiative, the signature form, and the notice of hearing;
R.A. NO. 6735 INTENDED TO INCLUDE THE
and by setting the case for hearing. The COMELEC's failure
to act on Roco's motion to dismiss and its insistence to hold SYSTEM OF INITIATIVE ON AMENDMENTS TO
THE INSTANT PETITION IS VIABLE DESPITE on to the petition rendered ripe and viable the instant petition THE CONSTITUTION, BUT IS,
THE PENDENCY IN THE COMELEC OF THE UNFORTUNATELY, INADEQUATE TO COVER
under Section 2 of Rule 65 of the Rules of Court, which
DELFIN PETITION. provides: THAT SYSTEM.

Except for the petitioners and intervenor Roco, the parties Section 2 of Article XVII of the Constitution provides:
Sec. 2. Petition for prohibition. — Where
paid no serious attention to the fifth issue, i.e., whether it is the proceedings of any tribunal,
proper for this Court to take cognizance of this special civil corporation, board, or person, whether Sec. 2. Amendments to this Constitution
action when there is a pending case before the COMELEC. exercising functions judicial or may likewise be directly proposed by the
The petitioners provide an affirmative answer. Thus: ministerial, are without or in excess of its people through initiative upon a petition
or his jurisdiction, or with grave abuse of of at least twelve per centum of the total
28. The Comelec has no jurisdiction to discretion, and there is no appeal or any number of registered voters, of which
take cognizance of the petition filed by other plain, speedy and adequate every legislative district must be
private respondent Delfin. This being so, remedy in the ordinary course of law, a represented by at least three per
it becomes imperative to stop the person aggrieved thereby may file a centum of the registered voters therein.
Comelec from proceeding any further, verified petition in the proper court No amendment under this section shall
and under the Rules of Court, Rule 65, alleging the facts with certainty and be authorized within five years following
Section 2, a petition for prohibition is the praying that judgment be rendered the ratification of this Constitution nor
proper remedy. commanding the defendant to desist oftener than once every five years
thereafter.
The Congress shall provide for the implementation of the President. May we matter to the
exercise of this right. respectfully call legislature?
attention of the
Members of the
This provision is not self-executory. In his book, 29 Joaquin MR. SUAREZ. That
Commission that
Bernas, a member of the 1986 Constitutional Commission, is right, Madam
pursuant to the
stated: President.
mandate given to us
last night, we
Without implementing legislation Section submitted this FR. BERNAS. And
2 cannot operate. Thus, although this afternoon a do we also
mode of amending the Constitution is a complete understand,
mode of amendment which bypasses Committee Report therefore, that for as
congressional action, in the last analysis No. 7 which long as the
it still is dependent on congressional embodies the legislature does not
action. proposed provision pass the necessary
governing the implementing law
matter of initiative. on this, this will not
Bluntly stated, the right of the people to directly This is now covered operate?
propose amendments to the Constitution through by Section 2 of the
the system of initiative would remain entombed in
complete committee
the cold niche of the Constitution until Congress report. With the MR. SUAREZ. That
provides for its implementation. Stated otherwise, permission of the matter was also
while the Constitution has recognized or granted taken up during the
Members, may I
that right, the people cannot exercise it if quote Section 2: committee hearing,
Congress, for whatever reason, does not provide especially with
for its implementation. respect to the
The people may, after five years from budget
the date of the last plebiscite held, appropriations
This system of initiative was originally included in Section 1 directly propose amendments to this which would have to
of the draft Article on Amendment or Revision proposed by Constitution thru initiative upon petition be legislated so that
the Committee on Amendments and Transitory Provisions of of at least ten percent of the registered the plebiscite could
the 1986 Constitutional Commission in its Committee Report voters. be called. We
No. 7 (Proposed Resolution No. 332). 30 That section reads
deemed it best that
as follows:
this matter be left to
This completes the blanks appearing in
the legislature. The
the original Committee Report No. 7. 32
Sec. 1. Any amendment to, or revision of, this Constitution Gentleman is right.
may be proposed: In any event, as
The interpellations on Section 2 showed that the details for envisioned, no
carrying out Section 2 are left to the legislature. Thus: amendment through
(a) by the National Assembly upon a the power of
vote of three-fourths of all its members; initiative can be
or FR. BERNAS.
called until after five
Madam President,
years from the date
just two simple,
(b) by a constitutional convention; or of the ratification of
clarificatory
this Constitution.
questions.
Therefore, the first
(c) directly by the people themselves amendment that
thru initiative as provided for in First, on Section 1 could be proposed
Article___ Section ___of the through the
on the matter of
Constitution. 31 initiative upon exercise of this
petition of at least initiative power
After several interpellations, but before the period 10 percent, there would be after five
of amendments, the Committee submitted a new are no details in the years. It is
formulation of the concept of initiative which it provision on how to reasonably
denominated as Section 2; thus: carry this out. Do expected that within
we understand, that five-year
therefore, that we period, the National
MR. SUAREZ. are leaving this Assembly can come
Thank you, Madam up with the
appropriate rules MR. SUAREZ. That underscore the
governing the is absolutely primacy of
exercise of this correct, Madam constituent power
power. President. we have a separate
article in the
constitution that
FR. BERNAS. MS. AQUINO. I fully
would specifically
Since the matter concur with the
cover the process
is left to the underlying precept
and the modes of
legislature — the of the proposal in
amending the
details on how this terms of
Constitution?
is to be carried institutionalizing
out — is it possible popular participation
that, in effect, what in the drafting of the MR. SUAREZ. That
will be presented to Constitution or in is right, Madam
the people for the amendment President.
ratification is the thereof, but I would
work of the have a lot of
MS. AQUINO.
legislature rather difficulties in terms
Therefore, is the
than of the people? of accepting the
sponsor inclined, as
Does this provision draft of Section 2,
the provisions are
exclude that as written. Would
drafted now, to
possibility? the sponsor agree
again concede to
with me that in the
the legislature the
hierarchy of legal
MR. SUAREZ. No, process or the
mandate,
it does not exclude requirement of
constituent power
that possibility determining the
has primacy over all
because even the mechanics of
other legal
legislature itself as amending the
mandates?
a body could Constitution by
propose that people's initiative?
amendment, maybe MR. SUAREZ. The
individually or Commissioner is
MR. SUAREZ. The
collectively, if it fails right, Madam
matter of
to muster the three- President.
implementing this
fourths vote in order
could very well be
to constitute itself
MS. AQUINO. And placed in the hands
as a constituent
would the sponsor of the National
assembly and
agree with me that Assembly, not
submit that proposal
in the hierarchy of unless we can
to the people for
legal values, the incorporate into this
ratification through
Constitution is provision the
the process of an
source of all legal mechanics that
initiative.
mandates and that would adequately
therefore we require cover all the
xxx xxx xxx a great deal of conceivable
circumspection in situations. 33
the drafting and in
MS. AQUINO. Do I
the amendments of
understand from the It was made clear during the interpellations that the
the Constitution?
sponsor that the aforementioned Section 2 is limited to proposals to AMEND
intention in the — not to REVISE — the Constitution; thus:
proposal is to vest MR. SUAREZ. That
constituent power in proposition is
MR. SUAREZ. . . .
the people to nondebatable.
This proposal was
amend the
suggested on the
Constitution?
MS. AQUINO. Such theory that this
that in order to matter of initiative,
which came about amendment and Rama, Ople, de los
because of the should not expand Reyes and Romulo.
extraordinary into a revision which The modified
developments this contemplates a total amendment in
year, has to be overhaul of the substitution of the
separated from the Constitution. That proposed Section 2
traditional modes of was the sense that will now read as
amending the was conveyed by follows: "SECTION
Constitution as the Committee. 2. —
embodied in AMENDMENTS TO
Section 1. The THIS
MS. AQUINO. In
committee CONSTITUTION
other words, the
members felt MAY LIKEWISE BE
Committee was
that this system of DIRECTLY
attempting to
initiative should not PROPOSED BY
distinguish the
extend to the THE PEOPLE
coverage of modes
revision of the entire THROUGH
(a) and (b) in
Constitution, so we INITIATIVE UPON
Section 1 to include
removed it from the A PETITION OF AT
the process of
operation of Section LEAST TWELVE
revision; whereas
1 of the proposed PERCENT OF THE
the process of
Article on TOTAL NUMBER
initiation to amend,
Amendment or Of REGISTERED
34 which is given to the
Revision. VOTERS, OF
public, would only
WHICH EVERY
apply to
LEGISLATIVE
xxx xxx xxx amendments?
DISTRICT MUST
BE
MS. AQUINO. In MR. SUAREZ. That REPRESENTED
which case, I am is right. Those were BY AT LEAST
seriously bothered the terms THREE PERCENT
by providing this envisioned in the OF THE
process of initiative Committee. 35 REGISTERED
as a separate VOTERS
section in the Article THEREOF. NO
Amendments to the proposed Section 2 were thereafter AMENDMENT
on Amendment.
introduced by then Commissioner Hilario G. Davide, Jr.,
Would the sponsor UNDER THIS
which the Committee accepted. Thus: SECTION SHALL
be amenable to
accepting an BE AUTHORIZED
amendment in MR. DAVIDE. WITHIN FIVE
terms of realigning Thank you Madam YEARS
Section 2 as President. I propose FOLLOWING THE
another to substitute the RATIFICATION OF
subparagraph (c) of entire Section 2 with THIS
Section 1, instead the following: CONSTITUTION
of setting it up as NOR OFTENER
another separate THAN ONCE
section as if it were MR. DAVIDE. EVERY FIVE
a self-executing Madam President, I YEARS
have modified the THEREAFTER.
provision?
proposed
amendment after
MR. SUAREZ. We taking into account THE NATIONAL
would be amenable the modifications ASSEMBLY SHALL
except that, as we submitted by the BY LAW PROVIDE
clarified a while sponsor himself and FOR THE
ago, this process of the honorable IMPLEMENTATION
initiative is limited to Commissioners OF THE EXERCISE
the matter of Guingona, Monsod, OF THIS RIGHT.
MR. SUAREZ. anymore the Padilla when he
Madam President, percentage of the made the distinction
considering that the requirement. between the words
proposed "amendments" and
amendment is "revision"?
MR. ROMULO. But
reflective of the
the procedures,
sense contained in
including the MR. DAVIDE. No, it
Section 2 of our
determination of the does not, because
completed
proper form for "amendments" and
Committee Report
submission to the "revision" should be
No. 7, we accept
people, may be covered by Section
the proposed
subject to 1. So insofar as
amendment. 36
legislation. initiative is
concerned, it can
The interpellations which ensued on the proposed modified only relate to
MR. DAVIDE. As
amendment to Section 2 clearly showed that it was a "amendments" not
long as it will not
legislative act which must implement the exercise of the "revision." 38
destroy the
right. Thus:
substantive right to
initiate. In other Commissioner Davide further emphasized that the process
MR. ROMULO. words, none of the of proposing amendments through initiative must be more
Under procedures to be rigorous and difficult than the initiative on legislation. Thus:
Commissioner proposed by the
Davide's legislative body
MR. DAVIDE. A
amendment, is it must diminish or
distinction has to be
possible for the impair the right
made that under
legislature to set conceded here.
this proposal, what
forth certain
is involved is an
procedures to carry
MR. ROMULO. In amendment to the
out the initiative. . .?
that provision of the Constitution. To
Constitution can the amend a
MR. DAVIDE. It procedures which I Constitution would
can. have discussed be ordinarily require a
legislated? proposal by the
National Assembly
xxx xxx xxx
by a vote of three-
MR. DAVIDE.
fourths; and to call a
Yes. 37
MR. ROMULO. But constitutional
the Commissioner's convention would
amendment does Commissioner Davide also reaffirmed that his modified require a higher
not prevent the amendment strictly confines initiative to AMENDMENTS to number. Moreover,
legislature from — NOT REVISION of — the Constitution. Thus: just to submit the
asking another body issue of calling a
to set the constitutional
MR. DAVIDE. With convention, a
proposition in
pleasure, Madam majority of the
proper form.
President.
National Assembly
is required, the
MR. DAVIDE. The import being that
MR. MAAMBONG.
Commissioner is
My first question: the process of
correct. In other amendment must
Commissioner
words, the be made more
Davide's proposed
implementation of
amendment on line rigorous and difficult
this particular right than probably
1 refers to
would be subject to initiating an ordinary
"amendment." Does
legislation, provided
it not cover the word legislation or putting
the legislature an end to a law
"revision" as defined
cannot determine proposed by the
by Commissioner
National Assembly BY AT LEAST There is, of course, no other better way for Congress to
by way of a THREE PERCENT implement the exercise of the right than through the passage
referendum. I OF THE of a statute or legislative act. This is the essence or rationale
cannot agree to REGISTERED of the last minute amendment by the Constitutional
reducing the VOTERS Commission to substitute the last paragraph of Section 2 of
requirement THEREOF. NO Article XVII then reading:
approved by the AMENDMENT
Committee on the UNDER THIS
The Congress 45 shall by law provide for
Legislative because SECTION SHALL
the implementation of the exercise of
it would require BE AUTHORIZED
this right.
another voting by WITHIN FIVE
the Committee, and YEARS
the voting as FOLLOWING THE with
precisely based on RATIFICATION OF
a requirement of 10 THIS
percent. Perhaps, I CONSTITUTION The Congress shall provide for the
implementation of the exercise of this
might present such NOR OFTENER
a proposal, by way THAN ONCE right.
of an amendment, EVERY FIVE
when the YEARS This substitute amendment was an investiture on
Commission shall THEREAFTER. Congress of a power to provide for the rules
take up the Article implementing the exercise of the right. The "rules"
on the Legislative or means "the details on how [the right] is to be
THE NATIONAL
on the National carried out." 46
ASSEMBLY SHALL
Assembly on
BY LAW PROVIDE
plenary sessions. 39
FOR THE We agree that R.A. No. 6735 was, as its history reveals,
IMPLEMENTATION intended to cover initiative to propose amendments to the
The Davide modified amendments to Section 2 were OF THE EXERCISE Constitution. The Act is a consolidation of House Bill No.
subjected to amendments, and the final version, which the OF THIS RIGHT. 40 21505 and Senate Bill No. 17. The former was prepared by
Commission approved by a vote of 31 in favor and 3 against, the Committee on Suffrage and Electoral Reforms of the
reads as follows: House of Representatives on the basis of two House Bills
The entire proposed Article on Amendments or
Revisions was approved on second reading on 9 referred to it, viz., (a) House Bill No. 497, 47 which dealt with
MR. DAVIDE. July 1986. 41Thereafter, upon his motion for the initiative and referendum mentioned
in Sections 1 and 32 of Article VI of the Constitution; and (b)
Thank you Madam reconsideration, Commissioner Gascon was
President. Section allowed to introduce an amendment to Section 2 House Bill No. 988, 48 which dealt with the subject matter of
2, as amended, which, nevertheless, was withdrawn. In view House Bill No. 497, as well as with initiative and referendum
under Section 3 of Article X (Local Government) and
reads as follows: thereof, the Article was again approved on Second
"AMENDMENT TO and Third Readings on 1 August 1986. 42 initiative provided for in Section 2 of Article XVII of the
THIS Constitution. Senate Bill No. 17 49 solely dealt with initiative
and referendum concerning ordinances or resolutions of
CONSTITUTION
However, the Committee on Style recommended that the local government units. The Bicameral Conference
MAY LIKEWISE BE
approved Section 2 be amended by changing "percent" Committee consolidated Senate Bill No. 17 and House Bill
DIRECTLY
to "per centum" and "thereof" to "therein" and deleting the No. 21505 into a draft bill, which was subsequently approved
PROPOSED BY
THE PEOPLE
phrase "by law" in the second paragraph so that said on 8 June 1989 by the Senate 50 and by the House of
paragraph reads: The Congress 43 shall provide for the Representatives. 51 This approved bill is now R.A. No. 6735.
THROUGH
implementation of the exercise of this right. 44 This
INITIATIVE UPON
amendment was approved and is the text of the present
A PETITION OF AT But is R.A. No. 6735 a full compliance with the power and
second paragraph of Section 2.
LEAST TWELVE duty of Congress to "provide for the implementation of the
PERCENT OF THE exercise of the right?"
TOTAL NUMBER The conclusion then is inevitable that, indeed, the system of
OF REGISTERED initiative on the Constitution under Section 2 of Article XVII of
VOTERS, OF the Constitution is not self-executory. A careful scrutiny of the Act yields a negative answer.
WHICH EVERY
LEGISLATIVE First. Contrary to the assertion of public respondent
Has Congress "provided" for the implementation of the
DISTRICT MUST COMELEC, Section 2 of the Act does not suggest an
BE exercise of this right? Those who answer the question in the
initiative on amendments to the Constitution. The said
REPRESENTED affirmative, like the private respondents and intervenor
Senator Roco, point to us R.A. No. 6735. section reads:
Sec. 2. Statement and Policy. — The c.2 the proposition; Sec. 3. Definition of terms —
power of the people under a system of
initiative and referendum to directly
c.3 the reason or reasons therefor; xxx xxx xxx
propose, enact, approve or reject, in
whole or in part, the Constitution, laws,
ordinances, or resolutions passed by c.4 that it is not one of the exceptions There are three (3) systems of initiative, namely:
any legislative body upon compliance provided therein;
with the requirements of this Act is
hereby affirmed, recognized and a.1 Initiative on the Constitution which
guaranteed. (Emphasis supplied). c.5 signatures of the petitioners or refers to a petition proposing
registered voters; and amendments to the Constitution;

The inclusion of the word "Constitution" therein


was a delayed afterthought. That word is neither c.6 an abstract or summary proposition a.2 Initiative on Statutes which refers to
is not more than one hundred (100) a petition proposing to enact a national
germane nor relevant to said section, which
exclusively relates to initiative and referendum on words which shall be legibly written or legislation; and
national laws and local laws, ordinances, and printed at the top of every page of the
petition. (Emphasis supplied).
resolutions. That section is silent as a.3 Initiative on local legislation which
to amendments on the Constitution. As pointed out refers to a petition proposing to enact a
earlier, initiative on the Constitution is confined The use of the clause "proposed laws sought to be regional, provincial, city, municipal, or
only to proposals to AMEND. The people are not enacted, approved or rejected, amended or barangay law, resolution or ordinance.
accorded the power to "directly propose, enact, repealed" only strengthens the conclusion that (Emphasis supplied).
approve, or reject, in whole or in part, the Section 2, quoted earlier, excludes initiative on
Constitution" through the system of initiative. They amendments to the Constitution.
can only do so with respect to "laws, ordinances, Hence, to complete the classification under subtitles there
or resolutions." should have been a subtitle on initiative on amendments to
Third. While the Act provides subtitles for National Initiative the Constitution. 53
and Referendum (Subtitle II) and for Local Initiative and
The foregoing conclusion is further buttressed by the fact Referendum (Subtitle III), no subtitle is provided
that this section was lifted from Section 1 of Senate Bill No. A further examination of the Act even reveals that the
for initiative on the Constitution. This conspicuous silence as
17, which solely referred to a statement of policy on local subtitling is not accurate. Provisions not germane to the
to the latter simply means that the main thrust of the Act is
initiative and referendum and appropriately used the phrases subtitle on National Initiative and Referendum are placed
initiative and referendum on national and local laws. If
"propose and enact," "approve or reject" and "in whole or in therein, like (1) paragraphs (b) and (c) of Section 9, which
Congress intended R.A. No. 6735 to fully provide for the
part." 52 reads:
implementation of the initiative on amendments to the
Constitution, it could have provided for a subtitle therefor,
Second. It is true that Section 3 (Definition of Terms) of the considering that in the order of things, the primacy of (b) The proposition in an initiative on the
Act defines initiative on amendments to the Constitution and interest, or hierarchy of values, the right of the people to Constitution approved by the majority of
mentions it as one of the three systems of initiative, and that directly propose amendments to the Constitution is far more the votes cast in the plebiscite shall
important than the initiative on national and local laws. become effective as to the day of the
Section 5 (Requirements) restates the constitutional
requirements as to the percentage of the registered voters plebiscite.
who must submit the proposal. But unlike in the case of the We cannot accept the argument that the initiative on
other systems of initiative, the Act does not provide for the amendments to the Constitution is subsumed under the (c) A national or local
contents of a petition for initiative on the Constitution. subtitle on National Initiative and Referendum because it is initiative proposition approved by
Section 5, paragraph (c) requires, among other things, national in scope. Our reading of Subtitle II (National majority of the votes cast in an election
statement of the proposed law sought to be enacted, Initiative and Referendum) and Subtitle III (Local Initiative called for the purpose shall become
approved or rejected, amended or repealed, as the case and Referendum) leaves no room for doubt that the effective fifteen (15) days after
may be. It does not include, as among the contents of the classification is not based on the scope of the initiative certification and proclamation of the
petition, the provisions of the Constitution sought to be involved, but on its nature and character. It is "national Commission. (Emphasis supplied).
amended, in the case of initiative on the Constitution. Said initiative," if what is proposed to be adopted or enacted is
paragraph (c) reads in full as follows: a national law, or a law which only Congress can pass. It is
"local initiative" if what is proposed to be adopted or enacted (2) that portion of Section 11 (Indirect Initiative) referring to
is a law, ordinance, or resolution which only the legislative indirect initiative with the legislative bodies of local
(c) The petition shall state the following: governments; thus:
bodies of the governments of the autonomous regions,
provinces, cities, municipalities, and barangays can pass.
c.1 contents or text of the proposed This classification of initiative into national and local is Sec. 11. Indirect Initiative. — Any duly
law sought to be enacted, approved or actually based on Section 3 of the Act, which we quote for accredited people's organization, as
rejected, amended or repealed, as the emphasis and clearer understanding: defined by law, may file a petition for
case may be; indirect initiative with the House of
Representatives, and other legislative (a) The preliminary requirement as to the number of The foregoing brings us to the conclusion that R.A. No. 6735
bodies. . . . signatures of registered voters for the petition; is incomplete, inadequate, or wanting in essential terms and
conditions insofar as initiative on amendments to the
Constitution is concerned. Its lacunae on this substantive
and (3) Section 12 on Appeal, since it applies to (b) The submission of the petition to the local legislative body
matter are fatal and cannot be cured by "empowering" the
decisions of the COMELEC on the findings of concerned;
COMELEC "to promulgate such rules and regulations as
sufficiency or insufficiency of the petition for
may be necessary to carry out the purposes of [the] Act. 58
initiative or referendum, which could be petitions
(c) The effect of the legislative body's failure to favorably act
for both national and local initiative and
thereon, and the invocation of the power of initiative as a
referendum. The rule is that what has been delegated, cannot be
consequence thereof;
delegated or as expressed in a Latin maxim: potestas
delegata non delegari potest. 59 The recognized exceptions
Upon the other hand, Section 18 on "Authority of Courts"
(d) The formulation of the proposition; to the rule are as follows:
under subtitle III on Local Initiative and Referendum is
misplaced, 54 since the provision therein applies to both
national and local initiative and referendum. It reads: (e) The period within which to gather the signatures; (1) Delegation of tariff powers to the President under Section
28(2) of Article VI of the Constitution;
Sec. 18. Authority of Courts. — Nothing (f) The persons before whom the petition shall be signed;
in this Act shall prevent or preclude the (2) Delegation of emergency powers to the President under
proper courts from declaring null and Section 23(2) of Article VI of the Constitution;
void any proposition approved pursuant (g) The issuance of a certification by the COMELEC through
its official in the local government unit concerned as to
to this Act for violation of the
whether the required number of signatures have been (3) Delegation to the people at large;
Constitution or want of capacity of the
local legislative body to enact the said obtained;
measure. (4) Delegation to local governments; and
(h) The setting of a date by the COMELEC for the
submission of the proposition to the registered voters for
Curiously, too, while R.A. No. 6735 exerted utmost diligence (5) Delegation to administrative bodies. 60
their approval, which must be within the period specified
and care in providing for the details in the implementation of
initiative and referendum on national and local legislation therein;
thereby giving them special attention, it failed, rather Empowering the COMELEC, an administrative body
exercising quasi-judicial functions, to promulgate rules and
intentionally, to do so on the system of initiative on (i) The issuance of a certification of the result;
amendments to the Constitution. Anent the initiative on regulations is a form of delegation of legislative authority
national legislation, the Act provides for the following: under no. 5 above. However, in every case of permissible
(j) The date of effectivity of the approved proposition; delegation, there must be a showing that the delegation itself
is valid. It is valid only if the law (a) is complete in itself,
(a) The required percentage of registered voters to sign the setting forth therein the policy to be executed, carried out, or
petition and the contents of the petition; (k) The limitations on local initiative; and implemented by the delegate; and (b) fixes a standard — the
limits of which are sufficiently determinate and determinable
(l) The limitations upon local legislative bodies. 56 — to which the delegate must conform in the performance of
(b) The conduct and date of the initiative;
his functions. 61 A sufficient standard is one which defines
legislative policy, marks its limits, maps out its boundaries
(c) The submission to the electorate of the proposition and Upon the other hand, as to initiative on amendments to the and specifies the public agency to apply it. It indicates the
the required number of votes for its approval; Constitution, R.A. No. 6735, in all of its twenty-three circumstances under which the legislative command is to be
sections, merely (a) mentions, the word "Constitution" in effected. 62
Section 2; (b) defines "initiative on the Constitution" and
(d) The certification by the COMELEC of the approval of the includes it in the enumeration of the three systems of
proposition; initiative in Section 3; (c) speaks of "plebiscite" as the Insofar as initiative to propose amendments to the
process by which the proposition in an initiative on the Constitution is concerned, R.A. No. 6735 miserably failed to
Constitution may be approved or rejected by the people; (d) satisfy both requirements in subordinate legislation. The
(e) The publication of the approved proposition in the Official
reiterates the constitutional requirements as to the number of delegation of the power to the COMELEC is then invalid.
Gazette or in a newspaper of general circulation in the
voters who should sign the petition; and (e) provides for the
Philippines; and
date of effectivity of the approved proposition. III
(f) The effects of the approval or rejection of the
There was, therefore, an obvious downgrading of the more
proposition. 55 COMELEC RESOLUTION NO. 2300, INSOFAR
important or the paramount system of initiative. RA. No. AS IT PRESCRIBES RULES AND
6735 thus delivered a humiliating blow to the system of REGULATIONS ON THE CONDUCT OF
As regards local initiative, the Act provides for the following: initiative on amendments to the Constitution by merely
INITIATIVE ON AMENDMENTS TO THE
paying it a reluctant lip service. 57 CONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly Since the Delfin Petition is not the initiatory petition under The Temporary Restraining Order issued on 18 December
promulgate rules and regulations to implement the exercise R.A. No. 6735 and COMELEC Resolution No. 2300, it 1996 is made permanent as against the Commission on
of the right of the people to directly propose amendments to cannot be entertained or given cognizance of by the Elections, but is LIFTED as against private respondents.
the Constitution through the system of initiative. It does not COMELEC. The respondent Commission must have known
have that power under R.A. No. 6735. Reliance on the that the petition does not fall under any of the actions or
Resolution on the matter of contempt is hereby reserved.
COMELEC's power under Section 2(1) of Article IX-C of the proceedings under the COMELEC Rules of Procedure or
Constitution is misplaced, for the laws and regulations under Resolution No. 2300, for which reason it did not assign
referred to therein are those promulgated by the COMELEC to the petition a docket number. Hence, the said petition was SO ORDERED.
under (a) Section 3 of Article IX-C of the Constitution, or (b) merely entered as UND, meaning, undocketed. That petition
a law where subordinate legislation is authorized and which was nothing more than a mere scrap of paper, which should
Narvasa, C.J., Regalado, Romero, Bellosillo, Kapunan,
satisfies the "completeness" and the "sufficient standard" not have been dignified by the Order of 6 December 1996,
tests. the hearing on 12 December 1996, and the order directing Hermosisima, Jr. and Torres, Jr., JJ., concur.
Delfin and the oppositors to file their memoranda or
oppositions. In so dignifying it, the COMELEC acted without Padilla, J., took no part.
IV
jurisdiction or with grave abuse of discretion and merely
wasted its time, energy, and resources.
COMELEC ACTED WITHOUT JURISDICTION
OR WITH GRAVE ABUSE OF DISCRETION IN
The foregoing considered, further discussion on the issue of
ENTERTAINING THE DELFIN PETITION.
whether the proposal to lift the term limits of elective national
and local officials is an amendment to, and not a revision of,
Even if it be conceded ex gratia that R.A. No. 6735 is a full the Constitution is rendered unnecessary, if not academic. Separate Opinions
compliance with the power of Congress to implement the
right to initiate constitutional amendments, or that it has
CONCLUSION
validly vested upon the COMELEC the power of subordinate PUNO, J., concurring and dissenting:
legislation and that COMELEC Resolution No. 2300 is valid,
the COMELEC acted without jurisdiction or with grave abuse This petition must then be granted, and the COMELEC
of discretion in entertaining the Delfin Petition. should be permanently enjoined from entertaining or taking I join the ground-breaking ponencia of our esteemed
cognizance of any petition for initiative on amendments to colleague, Mr. Justice Davide insofar as it orders the
the Constitution until a sufficient law shall have been validly COMELEC to dismiss the Delfin petition. I regret, however, I
Under Section 2 of Article XVII of the Constitution and cannot share the view that R.A. No. 5735 and COMELEC
enacted to provide for the implementation of the system.
Section 5(b) of R.A. No. 6735, a petition for initiative on the Resolution No. 2300 are legally defective and cannot
Constitution must be signed by at least 12% of the total implement the people's initiative to amend the Constitution. I
number of registered voters of which every legislative district We feel, however, that the system of initiative to propose likewise submit that the petition with respect to the Pedrosas
is represented by at least 3% of the registered voters therein. amendments to the Constitution should no longer be kept in has no leg to stand on and should be dismissed. With due
The Delfin Petition does not contain signatures of the the cold; it should be given flesh and blood, energy and respect:
required number of voters. Delfin himself admits that he has strength. Congress should not tarry any longer in complying
not yet gathered signatures and that the purpose of his with the constitutional mandate to provide for the
petition is primarily to obtain assistance in his drive to gather implementation of the right of the people under that system. I
signatures. Without the required signatures, the petition
cannot be deemed validly initiated.
WHEREFORE, judgment is hereby rendered First, I submit that R.A. No. 6735 sufficiently implements the
right of the people to initiate amendments to the Constitution
The COMELEC acquires jurisdiction over a petition for thru initiative. Our effort to discover the meaning of R.A. No.
a) GRANTING the instant petition; 6735 should start with the search of the intent of our
initiative only after its filing. The petition then is the initiatory
pleading. Nothing before its filing is cognizable by the lawmakers. A knowledge of this intent is critical for the intent
COMELEC, sitting en banc. The only participation of the b) DECLARING R.A. No. 6735 inadequate to cover the of the legislature is the law and the controlling factor in its
COMELEC or its personnel before the filing of such petition system of initiative on amendments to the Constitution, and interpretation.1 Stated otherwise, intent is the essence of the
are (1) to prescribe the form of the petition; 63 (2) to issue to have failed to provide sufficient standard for subordinate law, the spirit which gives life to its enactment.2
through its Election Records and Statistics Office a certificate legislation;
on the total number of registered voters in each legislative
Significantly, the majority decision concedes that ". . . R.A.
district; 64 (3) to assist, through its election registrars, in the No. 6735 was intended to cover initiative to propose
c) DECLARING void those parts of Resolution No. 2300 of
establishment of signature stations; 65 and (4) to verify, amendments to the Constitution." It ought to be so for this
through its election registrars, the signatures on the basis of the Commission on Elections prescribing rules and
regulations on the conduct of initiative or amendments to the intent is crystal clear from the history of the law which was a
the registry list of voters, voters' affidavits, and voters' consolidation of House Bill No. 215053 and Senate Bill No.
Constitution; and
identification cards used in the immediately preceding 17.4 Senate Bill No. 17 was entitled "An Act Providing for a
election. 66
System of Initiative and Referendum and the Exception
d) ORDERING the Commission on Elections to forthwith Therefrom, Whereby People in Local Government Units Can
DISMISS the DELFIN petition (UND-96-037). Directly Propose and Enact Resolutions and Ordinances or
Approve or Reject any Ordinance or Resolution Passed by powers are given to the people Mr. Roco explained that in certain
the Local Legislative Body." Beyond doubt, Senate Bill No. expressly. Section 32 of the same American states, the kind of laws to
17 did not include people's initiative to propose amendments Article mandates Congress to pass at which initiative and referendum apply is
to the Constitution. In checkered contrast, House Bill No. the soonest possible time, a bill on also without limitation, except for
21505 5expressly included people's initiative to amend the referendum and initiative, and to share emergency measures, which are
Constitution. Congressman (now Senator) Raul Roco its legislative powers with the people. likewise incorporated in House Bill No.
emphasized in his sponsorship remarks:6 21505. He added that the procedure
provided by the Bill from the filing of the
Section 2, Article XVII of the 1987
petition, the requirements of a certain
xxx xxx xxx Constitution, on the other hand, vests in
percentage of supporters to present a
the people the power to directly propose
proposition, to the submission to
amendments to the Constitution through
SPONSORSHIP REMARKS OF MR. electors are substantially similar to the
initiative, upon petition of at least 12
ROCO provisions in American laws. Although
percent of the total number of registered
an infant in Philippine political structure,
voters.
the system of initiative and referendum,
At the outset, Mr. Roco provided the he said, is a tried and tested system in
following backgrounder on the
Stating that House Bill No. 21505 is the other jurisdictions, and the Bill is
constitutional basis of the proposed patterned after American experience.
Committee's response to the duty
measure.
imposed on Congress to implement the
exercise by the people of the right to
He further explained that the bill has
1. As cited in Vera vs. Avelino (1946), initiative and referendum, Mr. Roco
only 12 sections, and recalled that the
the presidential system which was recalled the beginnings of the system of
Constitutional Commissioners saw the
introduced by the 1935 Constitution saw initiative and referendum under
system of the initiative and referendum
the application of the principle of Philippine Law. He cited Section 99 of
as an instrument which can be used
separation of powers. the Local Government Code which vests
should the legislature show itself to be
in the barangay assembly the power to
indifferent to the needs of the people.
initiate legislative processes, decide the
2. While under the parliamentary system This is the reason, he claimed, why now
holding of plebiscite and hear reports of
of the 1973 Constitution the principle is an opportune time to pass the Bill
the Sangguniang Barangay, all of which
remained applicable, the 1981 even as he noted the felt necessity of
are variations of the power of initiative
amendments to the Constitution of 1973 the times to pass laws which are
and referendum. He added that the
ensured presidential dominance over necessary to safeguard individual rights
holding of barangay plebiscites and
the Batasang Pambansa. and liberties.
referendum are likewise provided in
Sections 100 and 101 of the same
Constitutional history then saw the Code. At this juncture Mr. Roco explained the
shifting and sharing of legislative powers process of initiative and referendum as
between the Legislature and the advocated in House Bill No. 21505. He
Thereupon, for the sake of brevity, Mr.
Executive departments. Transcending stated that:
Roco moved that pertinent quotation on
changes in the exercise of legislative the subject which he will later submit to
power is the declaration in the Philippine the Secretary of the House be 1. Initiative means that the people, on
Constitution that the Philippines is a
incorporated as part of his sponsorship their own political judgment, submit a Bill
republican state where sovereignty speech. for the consideration of the general
resides in the people and all sovereignty electorate.
emanates from them.
He then cited examples of initiative and
referendum similar to those contained in 2. The instant Bill provides three kinds of
3. Under the 1987 Constitution, the the instant Bill among which are the initiative, namely; the initiative to amend
lawmaking power is still preserved in
constitutions of states in the United the Constitution once every five years;
Congress; however, to institutionalize States which recognize the right of the initiative to amend statutes approved
direct action of the people as registered voters to initiate the by Congress; and the initiative to amend
exemplified in the 1986 Revolution, the
enactment of any statute or to project local ordinances.
Constitution recognizes the power of the any existing law or parts thereof in a
people, through the system of initiative referendum. These states, he said, are
and referendum. 3. The instant Bill gives a definite
Alaska, Alabama, Montana,
procedure and allows the Commission
Massachusets, Dakota, Oklahoma,
on Elections (COMELEC) to define rules
As cited in Section 1, Article VI of the Oregon, and practically all other states.
and regulations on the power of
1987 Constitution, Congress does not
initiative.
have plenary powers since reserve
4. Referendum means that the the streets. A substantial segment of the CHAIRMAN
legislators seek the consent of the population feels, he said, that the form GONZALES. But at
people on measures that they have of democracy is there, but not the reality any rate, as I have
approved. or substance of it because of the said, because this is
increasingly elitist approach of their new in our political
representatives to the country's problem. system, the Senate
5. Under Section 4 of the Bill the people
decided on a more
can initiate a referendum which is a
cautious approach
mode of plebiscite by presenting a Whereupon, Mr. Escudero pointed out
and limiting it only
petition therefor, but under certain that the Constitution has provided a
to the local
limitations, such as the signing of said means whereby the people can exercise
government units
petition by at least 10 percent of the total the reserved power of initiative to
because even with
of registered voters at which every propose amendments to the
that stage where . .
legislative district is represented by at Constitution, and requested that
. at least this has
least three percent of the registered Sections 1 and 32, Article VI; Section 3,
been quite popular,
voters thereof. Within 30 days after Article X; and Section 2, Article XVII of
ano? It has been
receipt of the petition, the COMELEC the Constitution be made part of his
attempted on a
shall determine the sufficiency of the sponsorship remarks.
national basis.
petition, publish the same, and set the
Alright. There has
date of the referendum within 45 to 90-
Mr. Escudero also stressed that an not been a single
day period.
implementing law is needed for the attempt. Now, so,
aforecited Constitutional provisions. kami limitado doon.
6. When the matter under referendum or While the enactment of the Bill will give And, second, we
initiative is approved by the required way to strong competition among cause- consider also that it
number of votes, it shall become oriented and sectoral groups, he is only fair that the
effective 15 days following the continued, it will hasten the politization local legislative
completion of its publication in the of the citizenry, aid the government in body should be
Official Gazette. forming an enlightened public opinion, given a chance to
and produce more responsive adopt the legislation
legislation. The passage of the Bill will bill proposed, right?
In concluding his sponsorship remarks, Iyong sinasabing
also give street parliamentarians the
Mr. Roco stressed that the Members indirect system of
opportunity to articulate their ideas in a
cannot ignore the people's call for initiative. If after all,
democratic forum, he added.
initiative and referendum and urged the
the local legislative
Body to approve House Bill No. 21505. assembly or body is
Mr. Escudero stated that he and Mr. willing to adopt it in
Roco hoped for the early approval of the
At this juncture, Mr. Roco also full or in toto, there
Bill so that it can be initially used for the ought to be any
requested that the prepared text of his
Agrarian Reform Law. He said that the reason for initiative,
speech together with the footnotes be
passage of House Bill No. 21505 will
reproduced as part of the Congressional ano for initiative.
show that the Members can set aside And, number 3, we
Records.
their personal and political consideration feel that there
for the greater good of the people.
should be some
The same sentiment as to the bill's intent to limitation on the
implement people's initiative to amend the frequency with
The disagreeing provisions in Senate Bill No. 17
Constitution was stressed by then Congressman which it should be
and House Bill No. 21505 were threshed out in a
(now Secretary of Agriculture) Salvador Escudero
Bicameral Conference Committee.8 In the meeting applied. Number 4,
III in his sponsorship remarks, viz:7
of the Committee on June 6, 1989,9 the members na the people, thru
agreed that the two (2) bills should be initiative, cannot
xxx xxx xxx consolidated and that the consolidated version enact any ordinance
should include people's initiative to amend the that is beyond the
Constitution as contemplated by House Bill No. scope of authority of
SPONSORSHIP REMARKS OF MR. ESCUDERO 21505. The transcript of the meeting states: the local legislative
body, otherwise, my
Mr. Escudero first pointed out that the God, mag-aassume
xxx xxx xxx sila ng power that is
people have been clamoring for a truly
popular democracy ever since, broader and greater
especially in the so-called parliament of than the grant of
legislative power to Huwag na nating ironically provided
the Sanggunians. pagusapan. Now, if for local initiative
And Number 5, you insist, really and referendum and
because of that, iyong features ng the House
then a proposition national at saka Representatives
which has been the constitutional, okay. correctly provided
result of a ____ gagawin na for initiative and
successful initiative natin na referendum on the
can only carry the consolidation of Constitution and on
force and effect of both bills. national legislation.
an ordinance and
therefore that
HON. ROCO. Yes, I move that we
should not deprive
we shall approve the
the court of its
consolidate. consolidated bill.
jurisdiction to
declare it null and
void for want of CHAIRMAN MR. ALBANO. Mr.
authority. Ha, di ba? GONZALES. Speaker.
I mean it is beyond Consolidation of the
powers of local Senate and House
THE SPEAKER
government units to Bill No. so and so. 10
enact. Iyon ang PRO TEMPORE.
What is the
main essence
namin, so we When the consolidated bill was presented to the pleasure of the
concentrated on House for approval, then Congressman Roco Minority Floor
upon interpellation by Congressman Rodolfo Leader?
that. And that is why
. . . so ang sa inyo Albano, again confirmed that it covered people's
naman includes initiative to amend the Constitution. The record of
MR. ALBANO. Will
iyon sa Constitution, the House Representative states: 11
the distinguished
amendment to the sponsor answer just
Constitution eh . . . xxx xxx xxx a few questions?
national laws. Sa
amin, if you insist
on that, alright, THE SPEAKER THE SPEAKER
although we feel na PRO TEMPORE. PRO TEMPORE.
it will in effect The Gentleman The Gentlemen will
become a dead from Camarines Sur please proceed.
statute. Alright, and is recognized.
we can agree, we MR. ALBANO. I
can agree. So ang MR. ROCO. On the heard the sponsor
mangyayari dito, Conference say that the only
and magiging basic Committee Report difference in the two
nito, let us not on the disagreeing bills was that in the
discuss anymore provisions between Senate version
kung alin and Senate Bill No. there was a
magiging basic bill, 21505 which refers provision for local
ano, whether it is to the system initiative and
the Senate Bill or providing for the referendum,
whether it is the initiative and whereas the House
House bill. Logically referendum, version has none.
it should be ours fundamentally, Mr.
sapagkat una iyong Speaker, we
sa amin eh. It is one MR. ROCO. In fact,
consolidated the
of the first bills the Senate version
Senate and the
approved by the provide purely for
House versions, so
Senate kaya ang local initiative and
both versions are
number niyan, referendum,
totally intact in the
makikita mo, 17, eh. whereas in the
bill. The Senators
House version, we
provided purely for MR. ROCO. That is Is there any objection? (Silence. The
national and correct, Mr. Chair hears none; the motion is
constitutional Speaker. For approved.
legislation. constitutional
amendments in the
Since it is crystalline that the intent of R.A. No.
1987 Constitution, it
MR. ALBANO. Is it 6735 is to implement the people's initiative to
is every five years.
our understanding amend the Constitution, it is our bounden duty to
therefore, that the interpret the law as it was intended by the
two provisions were MR. ALBANO. For legislature. We have ruled that once intent is
incorporated? every five years, Mr. ascertained, it must be enforced even if it may not
Speaker? be consistent with the strict letter of the law and
this ruling is as old as the mountain. We have also
MR. ROCO. Yes,
held that where a law is susceptible of more than
Mr. Speaker. MR. ROCO. Within
one interpretation, that interpretation which will
five years, we
most tend to effectuate the manifest intent of the
cannot have
MR. ALBANO. So legislature will be adopted. 12
multiple initiatives
that we will now
and referenda.
have a complete
The text of R.A. No. 6735 should therefore be reasonably
initiative and
construed to effectuate its intent to implement the people's
referendum both in MR. ALBANO.
initiative to amend the Constitution. To be sure, we need not
the constitutional Therefore, basically,
torture the text of said law to reach the conclusion that it
amendment and there was no
implements people's initiative to amend the Constitution.
national legislation. substantial
R.A. No. 6735 is replete with references to this prerogative of
difference between
the people.
the two versions?
MR. ROCO. That is
correct.
First, the policy statement declares:
MR. ROCO. The
gaps in our bill were
MR. ALBANO. And
filled by the Senate Sec. 2. Statement of Policy. — The
provincial as well as
which, as I said power of the people under a system of
municipal
earlier, ironically initiative and referendum to directly
resolutions?
was about local, propose, enact, approve or reject, in
provincial and whole or in part, the Constitution, laws,
MR. ROCO. Down municipal ordinances, or resolutions passed by
to barangay, Mr. legislation. any legislative body upon compliance
Speaker. with the requirements of this Act is
hereby affirmed, recognized and
MR. ALBANO. And
guaranteed. (emphasis supplied)
MR. ALBANO. And the two bills were
this initiative and consolidated?
referendum is in Second, the law defines "initiative" as "the power of the
consonance with people to propose amendments to the constitution or to
MR. ROCO. Yes,
the provision of the propose and enact legislations through an election called for
Mr. Speaker.
Constitution the purpose," and "plebiscite" as "the electoral process by
whereby it which an initiative on the Constitution is approved or rejected
mandates this MR. ALBANO. by the people.
Congress to enact Thank you, Mr.
the enabling law, so Speaker.
Third, the law provides the requirements for a petition for
that we shall have a
initiative to amend the Constitution. Section 5(b) states that
system which can
APPROVAL OF C.C.R. "(a) petition for an initiative on the 1987 Constitution must
be done every five
ON S.B. NO. 17 AND H.B. NO. 21505 have at least twelve per centum (12%) of the total number of
years. Is it five
(The Initiative and Referendum Act) registered voters as signatories, of which every legislative
years in the
district must be represented by at least threeper
provision of the
centum (3%) of the registered voters therein." It also states
Constitution? THE SPEAKER PRO TEMPORE. There that "(i)nitiative on the Constitution may be exercised only
was a motion to approve this after five (5) years from the ratification of the 1987
consolidated bill on Senate Bill No. 17
Constitution and only once every five (5) years thereafter.
and House Bill No. 21505.
Finally, R.A. No. 6735 fixes the effectivity date of the and regulations as may be necessary to carry out the "The power of the people under a system of initiative and
amendment. Section 9(b) states that "(t)he proposition in an purposes of this Act." By no means can this delegation of referendum to directly propose, enact, approve or reject, in
initiative on the Constitution approved by a majority of the power be assailed as infirmed. In the benchmark case whole or in part, the Constitution, laws, ordinances, or
votes cast in the plebiscite shall become effective as to the of Pelaez v. Auditor General, 17 this Court, thru former Chief resolutions passed by any legislative body upon compliance
day of the plebiscite. Justice Roberto Concepcion laid down the test to determine with the requirements of this Act is hereby affirmed,
whether there is undue delegation of legislative power, viz: recognized and guaranteed." Spread out all over R.A. No.
6735 are the standards to canalize the delegated power to
It is unfortunate that the majority decision resorts to a
the COMELEC to promulgate rules and regulations from
strained interpretation of R.A. No. 6735 to defeat its intent xxx xxx xxx
overflowing. Thus, the law states the number of signatures
which it itself concedes is to implement people's initiative to
necessary to start a people's initiative, 18 directs how
propose amendments to the Constitution. Thus, it laments
Although Congress may delegate to initiative proceeding is commenced, 19 what the COMELEC
that the word "Constitution" is neither germane nor relevant
another branch of the Government the should do upon filing of the petition for initiative, 20 how a
to the policy thrust of section 2 and that the statute's
power to fill details in the execution, proposition is approved, 21 when a plebiscite may be
subtitling is not accurate. These lapses are to be expected
enforcement or administration of a law, it held, 22 when the amendment takes effect 23 and what
for laws are not always written in impeccable English.
is essential, to forestall a violation of the matters may not be the subject of any initiative. 24 By any
Rightly, the Constitution does not require our legislators to
principle of separation of powers, that measure, these standards are adequate.
be word-smiths with the ability to write bills with poetic
said law: (a) be complete in itself — it
commas like Jose Garcia Villa or in lyrical prose like Winston
must set forth therein the policy to be
Churchill. But it has always been our good policy not to Former Justice Isagani A. Cruz, similarly elucidated that "a
executed, carried out or implemented by
refuse to effectuate the intent of a law on the ground that it is sufficient standard is intended to map out the boundaries of
the delegate — and (b) to fix standard
badly written. As the distinguished Vicente the delegates' authority by defining the legislative policy and
— the limits of which are sufficiently
Francisco 13 reminds us: "Many laws contain words which indicating the circumstances under which it is to be pursued
determinate or determinable — to which
have not been used accurately. But the use of inapt or and effected. The purpose of the sufficient standard is to
the delegate must conform in the
inaccurate language or words, will not vitiate the statute if the prevent a total transference of legislative power from the
performance of his functions. Indeed,
legislative intention can be ascertained. The same is equally lawmaking body to the delegate." 25 In enacting R.A. No.
without a statutory declaration of policy,
true with reference to awkward, slovenly, or ungrammatical 6735, it cannot be said that Congress totally transferred its
which is the essence of every law, and,
expressions, that is, such expressions and words will be power to enact the law implementing people's initiative to
without the aforementioned standard,
construed as carrying the meaning the legislature intended COMELEC. A close look at COMELEC Resolution No. 2300
there would be no means to determine,
that they bear, although such a construction necessitates a will show that it merely provided the procedure to effectuate
with reasonable certainty, whether the
departure from the literal meaning of the words used. the policy of R.A. No. 6735 giving life to the people's initiative
delegate has acted within or beyond the
to amend the Constitution. The debates 26 in the
scope of his authority. Hence, he could
Constitutional Commission make it clear that the rules of
In the same vein, the argument that R.A. No. 7535 does not thereby arrogate upon himself the
procedure to enforce the people's initiative can be delegated,
include people's initiative to amend the Constitution simply power, not only to make the law, but,
thus:
because it lacks a sub-title on the subject should be given also — and this is worse — to unmake
the weight of helium. Again, the hoary rule in statutory it, by adopting measures inconsistent
construction is that headings prefixed to titles, chapters and with the end sought to be attained by the MR. ROMULO.
sections of a statute may be consulted in aid of Act of Congress, thus nullifying the Under
interpretation, but inferences drawn therefrom are entitled to principle of separation of powers and the Commissioner
very little weight, and they can never control the plain terms system of checks and balances, and, Davide's
of the enacting clauses. 14 consequently, undermining the very amendment, it is
foundation of our republican system. possible for the
legislature to set
All said, it is difficult to agree with the majority decision that
forth certain
refuses to enforce the manifest intent or spirit of R.A. No. Section 68 of the Revised Administrative
procedures to carry
6735 to implement the people's initiative to amend the Code does not meet these well-settled
out the initiative. . .
Constitution. It blatantly disregards the rule cast in concrete requirements for a valid delegation of
?
that the letter of the law must yield to its spirit for the letter of the power to fix the details in the
the law is its body but its spirit is its soul. 15 enforcement of a law. It does not
enunciate any policy to be carried out or MR. DAVIDE. It
implemented by the President. Neither can.
II
does it give a standard sufficiently
precise to avoid the evil effects above
xxx xxx xxx
COMELEC Resolution No. 2300, 16 promulgated under the referred to.
stewardship of Commissioner Haydee Yorac, then its Acting
Chairman, spelled out the procedure on how to exercise the MR. ROMULO. But
R.A. No. 6735 sufficiently states the policy and the standards
people's initiative to amend the Constitution. This is in accord the Commissioner's
to guide the COMELEC in promulgating the law's
with the delegated power granted by section 20 of R.A. No. amendment does
implementing rules and regulations of the law. As
6735 to the COMELEC which expressly states: "The not prevent the
aforestated, section 2 spells out the policy of the law; viz:
Commission is hereby empowered to promulgate such rules legislature from
asking another body against the legislature is to impair the substantive regard and respect to the legislature, a co-equal
to set the right of the people to initiate amendments to the and coordinate branch of government, should
proposition in Constitution. It is not, however, prohibited from counsel this Court to refrain from refusing to
proper form. legislating the procedure to enforce the people's effectuate laws unless they are clearly
right of initiative or to delegate it to another body unconstitutional.
like the COMELEC with proper standard.
MR. DAVIDE. The
Commissioner is III
correct. In other A survey of our case law will show that this Court has
words, the prudentially refrained from invalidating administrative rules
It is also respectfully submitted that the petition should he
implementation of on the ground of lack of adequate legislative standard to
dismissed with respect to the Pedrosas. The inclusion of the
this particular right guide their promulgation. As aptly perceived by former
Pedrosas in the petition is utterly baseless. The records
would be subject to Justice Cruz, "even if the law itself does not expressly
show that the case at bar started when respondent Delfin
legislation, provided pinpoint the standard, the courts will bend backward to
alone and by himself filed with the COMELEC a Petition to
the legislature locate the same elsewhere in order to spare the statute, if it
Amend the Constitution to Lift Term Limits of Elective
cannot determine can, from constitutional infirmity." 28 He cited the ruling
Officials by People's Initiative. The Pedrosas did not join the
anymore the in Hirabayashi v. United States, 29 viz:
petition. It was Senator Roco who moved to intervene and
percentage of the
was allowed to do so by the COMELEC. The petition was
requirement.
xxx xxx xxx heard and before the COMELEC could resolve the Delfin
petition, the case at bar was filed by the petitioners with this
MR. DAVIDE. As Court. Petitioners sued the COMELEC. Jesus Delfin, Alberto
It is true that the Act does not in terms
long as it will not Pedrosa and Carmen Pedrosa in their capacities as founding
establish a particular standard to which
destroy the members of the People's Initiative for Reform, Modernization
orders of the military commander are to
substantive right to and Action (PIRMA). The suit is an original action for
conform, or require findings to be made
initiate. In other prohibition with prayer for temporary restraining order and/or
as a prerequisite to any order. But the
words, none of the writ of preliminary injunction.
Executive Order, the Proclamations and
procedures to be
the statute are not to be read in isolation
proposed by the
from each other. They were parts of a The petition on its face states no cause of action against the
legislative body
single program and must be judged as Pedrosas. The only allegation against the Pedrosas is that
must diminish or
such. The Act of March 21, 1942, was they are founding members of the PIRMA which proposes to
impair the right
an adoption by Congress of the undertake the signature drive for people's initiative to amend
conceded here.
Executive Order and of the the Constitution. Strangely, the PIRMA itself as an
Proclamations. The Proclamations organization was not impleaded as a respondent. Petitioners
MR. ROMULO. In themselves followed a standard then prayed that we order the Pedrosas ". . . to desist from
that provision of the authorized by the Executive Order — conducting a signature drive for a people's initiative to
Constitution can the the necessity of protecting military amend the Constitution." On December 19, 1996, we
procedures which I resources in the designated areas temporarily enjoined the Pedrosas ". . . from conducting a
have discussed be against espionage and sabotage. signature drive for people's initiative to amend the
legislated? Constitution." It is not enough for the majority to lift the
temporary restraining order against the Pedrosas. It should
In the case at bar, the policy and the standards are
dismiss the petition and all motions for contempt against
MR. DAVIDE. Yes. bright-lined in R.A. No. 6735. A 20-20 look at the
them without equivocation.
law cannot miss them. They were not written by
our legislators in invisible ink. The policy and
In his book, The Intent of the 1986 Constitution
standards can also be found in no less than One need not draw a picture to impart the proposition that in
Writers, 27 Father Bernas likewise affirmed: "In
section 2, Article XVII of the Constitution on soliciting signatures to start a people's initiative to amend the
response to questions of Commissioner Romulo,
Amendments or Revisions. There is thus no Constitution the Pedrosas are not engaged in any criminal
Davide explained the extent of the power of the
reason to hold that the standards provided for in act. Their solicitation of signatures is a right guaranteed in
legislature over the process: it could for instance,
R.A. No. 6735 are insufficient for in other cases we black and white by section 2 of Article XVII of the
prescribe the 'proper form before (the amendment)
have upheld as adequate more general standards Constitution which provides that ". . . amendments to this
is submitted to the people,' it could authorize
such as "simplicity and dignity," 30 "public Constitution may likewise be directly proposed by the people
another body to check the proper form. It could
interest," 31 "public welfare," 32 "interest of law and through initiative. . ." This right springs from the principle
also authorize the COMELEC, for instance, to
order," 33 "justice and equity,"34 "adequate and proclaimed in section 1, Article II of the Constitution that in a
check the authenticity of the signatures of
efficient instruction," 35 "public safety," 36 "public democratic and republican state "sovereignty resides in the
petitioners. Davide concluded: 'As long as it will
policy", 37 "greater national interest", 38 "protect the people and all government authority emanates from them."
not destroy the substantive right to initiate. In other
local consumer by stabilizing and subsidizing The Pedrosas are part of the people and their voice is part of
words, none of the procedures to be proposed by
domestic pump rates", 39 and "promote simplicity, the voice of the people. They may constitute but a particle of
the legislative body must diminish or impair the
economy and efficiency in government." 40 A due
right conceded here.'" Quite clearly, the prohibition
our sovereignty but no power can trivialize them for tribunal of the people. Thus far, we have succeeded in The Delfin petition is thus utterly deficient. Instead of
sovereignty is indivisible. transforming people power from an opaque abstraction to a complying with the constitutional imperatives, the petition
robust reality. The Constitution calls us to encourage people would rather have much of its burden passed on, in effect, to
empowerment to blossom in full. The Court cannot halt any the COMELEC. The petition would require COMELEC to
But this is not all. Section 16 of Article XIII of the Constitution
and all signature campaigns to amend the Constitution schedule "signature gathering all over the country," to cause
provides: "The right of the people and their organizations to
without setting back the flowering of people empowerment. the necessary publication of the petition "in newspapers of
effective and reasonable participation at all levels of social,
More important, the Court cannot seal the lips of people who general and local circulation," and to instruct "Municipal
political and economic decision-making shall not be
are pro-change but not those who are anti-change without Election Registrars in all Regions of the Philippines to assist
abridged. The State shall by law, facilitate the establishment
concerting the debate on charter change into a sterile petitioners and volunteers in establishing signing stations at
of adequate consultation mechanisms." This is another novel
talkaton. Democracy is enlivened by a dialogue and not by a the time and on the dates designated for the purpose.
provision of the 1987 Constitution strengthening the sinews
monologue for in a democracy nobody can claim any
of the sovereignty of our people. In soliciting signatures to
infallibility.
amend the Constitution, the Pedrosas are participating in the I submit, even then, that the TRO earlier issued by the Court
political decision-making process of our people. The which, consequentially, is made permanent under
Constitution says their right cannot be abridged without any Melo and Mendoza, JJ., concur. theponencia should be held to cover only the Delfin petition
ifs and buts. We cannot put a question mark on their right. and must not be so understood as having intended or
contemplated to embrace the signature drive of the
Pedrosas. The grant of such a right is clearly implicit in the
Over and above these new provisions, the Pedrosas'
constitutional mandate on people initiative.
campaign to amend the Constitution is an exercise of their
VITUG, J., concurring and dissenting:
freedom of speech and expression and their right to petition
the government for redress of grievances. We have The distinct greatness of a democratic society is that those
memorialized this universal right in all our fundamental laws The COMELEC should have dismissed, outrightly, the Delfin who reign are the governed themselves. The postulate is no
from the Malolos Constitution to the 1987 Constitution. We Petition. longer lightly taken as just a perceived myth but a veritable
have iterated and reiterated in our rulings that freedom of reality. The past has taught us that the vitality of government
speech is a preferred right, the matrix of other important lies not so much in the strength of those who lead as in the
rights of our people. Undeniably, freedom of speech It does seem to me that there is no real exigency on the part consent of those who are led. The role of free speech is
of the Court to engross, let alone to commit, itself on all the
enervates the essence of the democratic creed of think and pivotal but it can only have its true meaning if it comes with
let think. For this reason, the Constitution encourages issues raised and debated upon by the parties. What is the correlative end of being heard.
speech even if it protects the speechless. essential at this time would only be to resolve whether or not
the petition filed with the COMELEC, signed by Atty. Jesus
S. Delfin in his capacity as a "founding member of the Pending a petition for a people's initiative that is sufficient in
It is thus evident that the right of the Pedrosas to solicit Movement for People's Initiative" and seeking through a form and substance, it behooves the Court, I most
signatures to start a people's initiative to amend the people initiative certain modifications on the 1987 respectfully submit, to yet refrain from resolving the question
Constitution does not depend on any law, much less on R.A. Constitution, can properly be regarded and given its due of whether or not Republic Act No. 6735 has effectively and
6735 or COMELEC Resolution No. 2300. No law, no course. The Constitution, relative to any proposed sufficiently implemented the Constitutional provision on right
Constitution can chain the people to an undesirable status amendment under this method, is explicit. Section 2, Article of the people to directly propose constitutional amendments.
quo. To be sure, there are no irrepealable laws just as there XVII, thereof provides: Any opinion or view formulated by the Court at this point
are no irrepealable Constitutions. Change is the predicate of would at best be only a non-binding, albeitpossibly
progress and we should not fear change. Mankind has long persuasive, obiter dictum.
recognized the truism that the only constant in life is change Sec. 2. Amendments to this Constitution
and so should the majority. may likewise be directly proposed by the
people through initiative upon a petition I vote for granting the instant petition before the Court and
of at least twelve per centum of the total for clarifying that the TRO earlier issued by the Court did not
IV number of registered voters, of which prescribe the exercise by the Pedrosas of their right to
every legislative district must be campaign for constitutional amendments.
represented by at least three per
In a stream of cases, this Court has rhapsodized people
centum of the registered voters therein.
power as expanded in the 1987 Constitution. On October 5,
No amendment under this section shall
1993, we observed that people's might is no longer a myth
be authorized within five years following
but an article of faith in our Constitution. 41 On September 30,
the ratification of this Constitution nor FRANCISCO, J., dissenting and concurring:
1994, we postulated that people power can be trusted to
oftener than once every five years
check excesses of government and that any effort to
thereafter.
trivialize the effectiveness of people's initiatives ought to be There is no question that my esteemed colleague Mr. Justice
rejected. 42 On September 26, 1996, we pledged that ". . . Davide has prepared a scholarly and well-written ponencia.
this Court as a matter of policy and doctrine will exert every The Congress shall provide for the Nonetheless, I cannot fully subscribe to his view that R. A.
effort to nurture, protect and promote their legitimate implementation of the exercise of this No. 6735 is inadequate to cover the system of initiative on
exercise." 43 Just a few days ago, or on March 11, 1997, by a right. amendments to the Constitution.
unanimous decision, 44 we allowed a recall election in
Caloocan City involving the mayor and ordered that he
submits his right to continue in office to the judgment of the
To begin with, sovereignty under the constitution, resides in A petition for an initiative on the 1987 correctly provided
the people and all government authority emanates from Constitution must have at least for initiative and
them.1 Unlike our previous constitutions, the present 1987 twelve per centum (12%) of the total referendum an the
Constitution has given more significance to this declaration number of the registered voters as Constitution and on
of principle for the people are now vested with power not signatories, of which every legislative national legislation.
only to propose, enact or reject any act or law passed by district must be represented by at least
Congress or by the local legislative body, but to propose three per centum (3%) of the registered
I move that we
amendments to the constitution as well.2 To implement these voters therein. Initiative on the
approve the
constitutional edicts, Congress in 1989 enacted Republic Act constitution may be exercised only after
consolidated bill.
No. 6735, otherwise known as "The initiative and five (5) years from the ratification of the
Referendum Act". This law, to my mind, amply covers an 1987 Constitution and only once every
initiative on the constitution. The contrary view maintained by five years thereafter. MR. ALBANO, Mr.
petitioners is based principally on the alleged lack of sub-title Speaker.
in the law on initiative to amend the constitution and on their
These provisions were inserted, on purpose, by
allegation that:
Congress the intent being to provide for the THE SPEAKER
implementation of the right to propose an PRO TEMPORE.
Republic Act No. 6735 provides for the amendment to the Constitution by way of initiative. What is the
effectivity of the law after publication in "A legal provision", the Court has previously said, pleasure of the
print media. [And] [t]his indicates that "must not be construed as to be a useless Minority Floor
Republic Act No. 6735 covers only laws surplusage, and accordingly, meaningless, in the Leader?
and not constitutional amendments, sense of adding nothing to the law or having no
because constitutional amendments effect whatsoever thereon". 8 That this is the
MR. ALBANO. Will
take effect upon ratification not after legislative intent is further shown by the
publication.3 deliberations in Congress, thus: the distinguished
sponsor answer just
a few questions?
which allegation manifests petitioners' selective . . . More significantly, in the course of
interpretation of the law, for under Section 9 of the consideration of the Conference
Republic Act No. 6735 on the Effectivity of Committee Report on the disagreeing THE SPEAKER
Initiative or Referendum Proposition paragraph (b) provisions of Senate Bill No. 17 and PRO TEMPORE.
thereof is clear in providing that: House Bill No. 21505, it was noted: What does the
sponsor say?

The proposition in an initiative on the constitution approved MR. ROCO. On the


by a majority of the votes cast in the plebiscite shall become Conference MR. ROCO.
effective as to the day of the plebiscite. Committee Report Willingly, Mr.
on the disagreeing Speaker.
provisions between
It is a rule that every part of the statute must be interpreted
Senate Bill No. 17 THE SPEAKER
with reference the context, i.e., that every part of the statute
and the PRO TEMPORE.
must be construed together with the other parts and kept
consolidated House The Gentleman will
subservient to the general intent of the whole
Bill No. 21505 please proceed.
enactment. 4 Thus, the provisions of Republic Act No. 6735
which refers to the
may not be interpreted in isolation. The legislative intent
system providing for
behind every law is to be extracted from the statute as a MR. ALBANO. I
the initiative and
whole.5 heard the sponsor
referendum,
fundamentally, Mr. say that the only
In its definition of terms, Republic Act No. 6735 defines Speaker, we difference in the two
consolidated the bills was that in the
initiative as "the power of the people to propose
amendments to the constitution or to propose and enact Senate and the Senate version
legislations through an election called for the purpose".6The House versions, so there was a
both versions are provision for local
same section, in enumerating the three systems of initiative,
included an "initiative on the constitution which refers to a totally intact in the initiative and
petition proposing amendments to the bill. The Senators referendum,
whereas the House
constitution"7 Paragraph (e) again of Section 3 defines ironically provided
"plebiscite" as "the electoral process by which an initiative on for local initiative version has none.
the constitution is approved or rejected by the people" And and referendum and
as to the material requirements for an initiative on the the House of MR. ROCO. In fact,
Constitution, Section 5(b) distinctly enumerates the following: Representatives the Senate version
provided purely for MR. ROCO. That is 1987 Constitution and only once every
local initiative and correct, Mr. five (5) years thereafter.
referendum, Speaker. For
whereas in the constitutional
Here private respondents' petition is
House version, we amendments to the
unaccompanied by the required signatures. This
provided purely for 1987 Constitution, it
defect notwithstanding, it is without prejudice to
national and is every five years."
the refiling of their petition once compliance with
constitutional (Id. [Journal and
the required percentage is satisfactorily shown by
legislation. Record of the
private respondents. In the absence, therefore, of
House of
an appropriate petition before the Commission on
Representatives],
MR. ALBANO. Is it Elections, any determination of whether private
Vol. VIII, 8 June
our understanding, respondents' proposal constitutes an amendment
1989, p. 960;
therefore, that the or revision is premature.
quoted in Garcia v.
two provisions were
Comelec, 237
incorporated?
SCRA 279, 292-293 ACCORDINGLY, I take exception to the conclusion reached
[1994]; emphasis in the ponencia that R.A. No. 6735 is an "inadequate"
MR. ROCO. Yes, supplied) legislation to cover a people's initiative to propose
Mr. Speaker. amendments to the Constitution. I, however, register my
concurrence with the dismissal, in the meantime, of private
. . . The Senate version of the Bill may
respondents' petition for initiative before public respondent
MR. ALBANO. So not have comprehended initiatives on
Commission on Elections until the same be supported by
that we will now the Constitution. When consolidated,
proof of strict compliance with Section 5 (b) of R.A. No.
have a complete though, with the House version of the
6735.
initiative and Bill and as approved and enacted into
referendum both in law, the proposal included initiative on
the constitutional both the Constitution and ordinary laws.9 Melo and Mendoza, JJ., concur.
amendment and
national legislation.
Clearly then, Republic Act No. 6735 covers an
initiative on the constitution. Any other construction
MR. ROCO. That is as what petitioners foist upon the Court constitute
PANGANIBAN, J., concurring and dissenting:
correct. a betrayal of the intent and spirit behind the
enactment.
Our distinguished colleague, Mr. Justice Hilario G. Davide
MR. ALBANO. And
At any rate, I agree with the ponencia that the Commission Jr., writing for the majority, holds that:
provincial as well as
municipal on Elections, at present, cannot take any action (such as
resolutions? those contained in the Commission's orders dated December (1) The Comelec acted without jurisdiction or with grave
6, 9, and 12, 1996 [Annexes B, C and B-1]) indicative of its abuse of discretion in entertaining the "initiatory" Delfin
having already assumed jurisdiction over private Petition.
MR. ROCO. Down respondents' petition. This is so because from the tenor of
to barangay, Mr.
Section 5 (b) of R.A. No. 6735 it would appear that proof of
Speaker. procurement of the required percentage of registered voters (2) While the Constitution allows amendments to "be directly
at the time the petition for initiative is filed, is a jurisdictional proposed by the people through initiative," there is no
requirement. implementing law for the purpose. RA 6735 is "incomplete,
MR. ALBANO. And
inadequate, or wanting in essential terms and conditions
this initiative and
insofar as initiative on amendments to the Constitution is
referendum is in Thus: concerned."
consonance with
the provision of the
Constitution to A petition for an initiative on the 1987 (3) Comelec Resolution No. 2330, "insofar as it prescribes
enact the enabling Constitution must have at least rules and regulations on the conduct of initiative on
law, so that we shall twelve per centum (12%) of the total amendments to the Constitution, is void."
have a system number of registered voters as
which can be done signatories, of which every legislative
every five years. Is district must be represented by at least I concur with the first item above. Until and unless an
three per centum (3%) of the registered initiatory petition can show the required number of signatures
it five years in the
provision of the voters therein. Initiative on the — in this case, 12% of all the registered voters in the
Constitution? Constitution may be exercised only after Philippines with at least 3% in every legislative district — no
five (5) years from the ratification of the public funds may be spent and no government resources
may be used in an initiative to amend the Constitution. amendments to the Constitution. Such views, which I shall certainly, it would be tyrannical and despotic to stop anyone
Verily, the Comelec cannot even entertain any petition no longer repeat nor elaborate on, are thoroughly consistent from speaking freely and persuading others to conform to
absent such signatures. However, I dissent most respectfully with this Court's unanimous en banc rulings in Subic Bay his/her beliefs. As the eminent Voltaire once said, "I may
from the majority's two other rulings. Let me explain. Metropolitan Authority vs. Commission on Elections, 2 that disagree with what you say, but I will defend to the death
"provisions for initiative . . . are (to be) liberally construed to your right to say it." After all, freedom is not really for the
effectuate their purposes, to facilitate and not hamper the thought we agree with, but as Justice Holmes wrote,
Under the above restrictive holdings espoused by the Court's
exercise by the voters of the rights granted thereby"; and "freedom for the thought that we hate."5
majority, the Constitution cannot be amended at all through a
in Garcia vs. Comelec, 3 that any "effort to trivialize the
people's initiative. Not by Delfin, not by Pirma, not by
effectiveness of people's initiatives ought to be rejected."
anyone, not even by all the voters of the country acting Epilogue
together. This decision will effectively but unnecessarily
curtail, nullify, abrogate and render inutile the people's right No law can completely and absolutely cover all
By way of epilogue, let me stress the guiding tenet of my
to change the basic law. At the very least, the majority holds administrative details. In recognition of this, RA 6735 wisely
Separate Opinion. Initiative, like referendum and recall, is a
the right hostage to congressional discretion on whether to empowered 4 the Commission on Election "to promulgate
new and treasured feature of the Filipino constitutional
pass a new law to implement it, when there is already one such rules and regulations as may be necessary to carry out
system. All three are institutionalized legacies of the world-
existing at present. This right to amend through initiative, it the purposes of this Act." And pursuant thereto, the Comelec
admired EDSA people power. Like elections and plebiscites,
bears stressing, is guaranteed by Section 2, Article XVII of issued its Resolution 2300 on 16 January 1991. Such
they are hallowed expressions of popular sovereignty. They
the Constitution, as follows: Resolution, by its very words, was promulgated "to govern
are sacred democratic rights of our people to be used as
the conduct of initiative on the Constitution and initiative and
their final weapons against political excesses, opportunism,
referendum on national and local laws," not by the incumbent
Sec. 2. Amendments to this Constitution inaction, oppression and misgovernance; as well as their
Commission on Elections but by one then composed of
may likewise be directly proposed by the reserved instruments to exact transparency, accountability
Acting Chairperson Haydee B. Yorac, Comms. Alfredo E.
people through initiative upon a petition and faithfulness from their chosen leaders. While on the one
Abueg Jr., Leopoldo L. Africa, Andres R. Flores, Dario C.
of at least twelve per centum of the total hand, their misuse and abuse must be resolutely struck
Rama and Magdara B. Dimaampao. All of these
number of registered voters, of which down, on the other, their legitimate exercise should be
Commissioners who signed Resolution 2300 have retired
every legislative district must be carefully nurtured and zealously protected.
from the Commission, and thus we cannot ascribe any vile
represented by at least three per
motive unto them, other than an honest, sincere and
centum of the registered voters therein.
exemplary effort to give life to a cherished right of our WHEREFORE, I vote to GRANT the petition of Sen. Miriam
No amendment under this section shall
people. D. Santiago et al. and to DIRECT Respondent Commission
be authorized within five years following
on Elections to DISMISS the Delfin Petition on the ground of
the ratification of this Constitution nor
prematurity, but not on the other grounds relied upon by the
oftener than once every five years The majority argues that while Resolution 2300 is valid in
majority. I also vote to LIFT the temporary restraining order
thereafter. regard to national laws and local legislations, it is void in
issued on 18 December 1996 insofar as it prohibits Jesus
reference to constitutional amendments. There is no basis
Delfin, Alberto Pedrosa and Carmen Pedrosa from
for such differentiation. The source of and authority for the
With all due respect, I find the majority's position all too exercising their right to free speech in proposing
Resolution is the same law, RA 6735.
sweeping and all too extremist. It is equivalent to burning the amendments to the Constitution.
whole house to exterminate the rats, and to killing the patient
to relieve him of pain. What Citizen Delfin wants the I respectfully submit that taken together and interpreted
G.R. No. 174153 October 25, 2006
Comelec to do we should reject. But we should not thereby properly and liberally, the Constitution (particularly Art. XVII,
preempt any future effort to exercise the right of Sec. 2), R4 6735 and Comelec Resolution 2300 provide
initiative correctly and judiciously. The fact that the Delfin more than sufficient authority to implement, effectuate and RAUL L. LAMBINO and ERICO B. AUMENTADO,
Petition proposes a misuse of initiative does not justify a ban realize our people's power to amend the Constitution. TOGETHER WITH 6,327,952 REGISTERED
against its proper use. Indeed, there is a right way to do the VOTERS,Petitioners,
right thing at the right time and for the right reason. vs.
Petitioner Delfin and the Pedrosa
THE COMMISSION ON ELECTIONS, Respondent.
Spouses Should Not Be Muzzled
Taken Together and Interpreted Properly, the
Constitution, RA 6735 and Comelec Resolution x--------------------------------------------------------x
I am glad the majority decided to heed our plea to lift the
2300 Are Sufficient to Implement Constitutional
temporary restraining order issued by this Court on 18
Initiatives
December 1996 insofar as it prohibited Petitioner Delfin and ALTERNATIVE LAW GROUPS, INC., Intervenor.
the Spouses Pedrosa from exercising their right of initiative.
While RA 6735 may not be a perfect law, it was — as the In fact, I believe that such restraining order as against private
majority openly concedes — intended by the legislature to respondents should not have been issued, in the first place. x ------------------------------------------------------ x
cover and, I respectfully submit, it contains enough While I agree that the Comelec should be stopped from
provisions to effectuate an initiative on the Constitution.1 I using public funds and government resources to help them ONEVOICE INC., CHRISTIAN S.MONSOD, RENE B.
completely agree with the inspired and inspiring opinions of gather signatures, I firmly believe that this Court has no AZURIN, MANUEL L. QUEZON III, BENJAMIN T.
Mr. Justice Reynato S. Puno and Mr. Justice Ricardo J. power to restrain them from exercising their right of initiative. TOLOSA, JR., SUSAN V. OPLE, and CARLOS P.
Francisco that RA 6735, the Roco law on initiative, The right to propose amendments to the Constitution is really MEDINA, JR., Intervenors.
sufficiently implements the right of the people to initiate a species of the right of free speech and free assembly. And
x------------------------------------------------------ x x ------------------------------------------------------- x MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR.,
and RENE A.V. SAGUISAG, Petitioners,
vs.
ATTY. PETE QUIRINO QUADRA, Intervenor. RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and
COMMISSION ON ELECTIONS, represented by Chairman
RUELO BAYA, Intervenors.
BENJAMIN S. ABALOS, SR., and Commissioners
x--------------------------------------------------------x RESURRECCION Z. BORRA, FLORENTINO A. TUASON,
x -------------------------------------------------------- x JR., ROMEO A. BRAWNER, RENE V. SARMIENTO,
NICODEMO T. FERRER, and John Doe and Peter
BAYAN represented by its Chairperson Dr. Carolina Doe,, Respondent.
Pagaduan-Araullo, BAYAN MUNA represented by its PHILIPPINE TRANSPORT AND GENERAL WORKERS
Chairperson Dr. Reynaldo Lesaca, KILUSANG MAYO ORGANIZATION (PTGWO) and MR. VICTORINO F.
UNO represented by its Secretary General Joel BALAIS, Intervenors.
Maglunsod, HEAD represented by its Secretary General
Dr. Gene Alzona Nisperos, ECUMENICAL BISHOPS DECISION
x -------------------------------------------------------- x
FORUM represented by Fr. Dionito Cabillas, MIGRANTE
represented by its Chairperson Concepcion Bragas-
Regalado, GABRIELA represented by its Secretary SENATE OF THE PHILIPPINES, represented by its
General Emerenciana de Jesus, GABRIELA WOMEN'S President, MANUEL VILLAR, JR., Intervenor.
CARPIO, J.:
PARTY represented by Sec. Gen. Cristina Palabay,
ANAKBAYAN represented by Chairperson Eleanor de
Guzman, LEAGUE OF FILIPINO STUDENTS represented x ------------------------------------------------------- x The Case
by Chair Vencer Crisostomo Palabay, JOJO PINEDA of
the League of Concerned Professionals and SULONG BAYAN MOVEMENT FOUNDATION,
These are consolidated petitions on the Resolution dated 31
Businessmen, DR. DARBY SANTIAGO of the Solidarity INC., Intervenor.
August 2006 of the Commission on Elections ("COMELEC")
of Health Against Charter Change, DR. REGINALD
denying due course to an initiative petition to amend the
PAMUGAS of Health Action for Human
x ------------------------------------------------------- x 1987 Constitution.
Rights,Intervenors.

JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. Antecedent Facts


x--------------------------------------------------------x
TANYA KARINA A. LAT, ANTONIO L. SALVADOR, and
RANDALL TABAYOYONG, Intervenors.
On 15 February 2006, petitioners in G.R. No. 174153,
LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, and
namely Raul L. Lambino and Erico B. Aumentado ("Lambino
ANA THERESA HONTIVEROS-BARAQUEL,Intervenors.
x -------------------------------------------------------- x Group"), with other groups1 and individuals, commenced
gathering signatures for an initiative petition to change the
x--------------------------------------------------------x 1987 Constitution. On 25 August 2006, the Lambino Group
INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY filed a petition with the COMELEC to hold a plebiscite that
AND CEBU PROVINCE CHAPTERS, Intervenors. will ratify their initiative petition under Section 5(b) and
ARTURO M. DE CASTRO, Intervenor.
(c)2 and Section 73 of Republic Act No. 6735 or the Initiative
x --------------------------------------------------------x and Referendum Act ("RA 6735").
x ------------------------------------------------------- x
SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, The Lambino Group alleged that their petition had the
TRADE UNION CONGRESS OF THE JR. and SENATORS SERGIO R. OSMENA III, JAMBY support of 6,327,952 individuals constituting at least
PHILIPPINES, Intervenor. MADRIGAL, JINGGOY ESTRADA, ALFREDO S. LIM and twelve per centum (12%) of all registered voters, with each
PANFILO LACSON, Intervenors. legislative district represented by at least three per
centum (3%) of its registered voters. The Lambino Group
x---------------------------------------------------------x
also claimed that COMELEC election registrars had verified
x -----------------------------------------------------x the signatures of the 6.3 million individuals.
LUWALHATI RICASA ANTONINO, Intervenor.
JOSEPH EJERCITO ESTRADA and PWERSA NG The Lambino Group's initiative petition changes the 1987
MASANG PILIPINO, Intervenors. Constitution by modifying Sections 1-7 of Article VI
x ------------------------------------------------------- x
(Legislative Department)4 and Sections 1-4 of Article VII
x -----------------------------------------------------x (Executive Department)5 and by adding Article XVIII entitled
PHILIPPINE CONSTITUTION ASSOCIATION "Transitory Provisions."6 These proposed changes will shift
(PHILCONSA), CONRADO F. ESTRELLA, TOMAS C. the present Bicameral-Presidential system to a Unicameral-
TOLEDO, MARIANO M. TAJON, FROILAN M. G.R. No. 174299 October 25, 2006 Parliamentary form of government. The Lambino Group
BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. prayed that after due publication of their petition, the
AGUAS, and AMADO GAT INCIONG, Intervenors.
COMELEC should submit the following proposition in a Various groups and individuals sought intervention, filing 1. The Initiative Petition Does Not Comply with Section
plebiscite for the voters' ratification: pleadings supporting or opposing the Lambino Group's 2, Article XVII of the Constitution on Direct Proposal by
petition. The supporting intervenors10 uniformly hold the view the People
that the COMELEC committed grave abuse of discretion in
DO YOU APPROVE THE AMENDMENT OF
relying on Santiago. On the other hand, the opposing
ARTICLES VI AND VII OF THE 1987 Section 2, Article XVII of the Constitution is the governing
intervenors11 hold the contrary view and maintain
CONSTITUTION, CHANGING THE FORM OF constitutional provision that allows a people's initiative to
that Santiago is a binding precedent. The opposing
GOVERNMENT FROM THE PRESENT propose amendments to the Constitution. This section
intervenors also challenged (1) the Lambino Group's
BICAMERAL-PRESIDENTIAL TO A states:
standing to file the petition; (2) the validity of the signature
UNICAMERAL-PARLIAMENTARY SYSTEM, AND
gathering and verification process; (3) the Lambino Group's
PROVIDING ARTICLE XVIII AS TRANSITORY
compliance with the minimum requirement for the Sec. 2. Amendments to this Constitution may
PROVISIONS FOR THE ORDERLY SHIFT FROM
percentage of voters supporting an initiative petition under likewise be directly proposed by the people
ONE SYSTEM TO THE OTHER?
Section 2, Article XVII of the 1987 Constitution;12 (4) the through initiative upon a petition of at least
nature of the proposed changes as revisions and not mere twelve per centum of the total number of
On 30 August 2006, the Lambino Group filed an Amended amendments as provided under Section 2, Article XVII of the registered voters of which every legislative district
Petition with the COMELEC indicating modifications in the 1987 Constitution; and (5) the Lambino Group's compliance must be represented by at least three per
proposed Article XVIII (Transitory Provisions) of their with the requirement in Section 10(a) of RA 6735 limiting centum of the registered voters therein. x x x x
initiative.7 initiative petitions to only one subject. (Emphasis supplied)

The Ruling of the COMELEC The Court heard the parties and intervenors in oral The deliberations of the Constitutional Commission vividly
arguments on 26 September 2006. After receiving the explain the meaning of an amendment "directly proposed
parties' memoranda, the Court considered the case by the people through initiative upon a petition," thus:
On 31 August 2006, the COMELEC issued its Resolution
submitted for resolution.
denying due course to the Lambino Group's petition for lack
of an enabling law governing initiative petitions to amend the MR. RODRIGO: Let us look at the mechanics. Let
Constitution. The COMELEC invoked this Court's ruling The Issues us say some voters want to propose a
in Santiago v. Commission on Elections8 declaring RA 6735 constitutional amendment. Is the draft of the
inadequate to implement the initiative clause on proposals to proposed constitutional amendment ready to
The petitions raise the following issues:
amend the Constitution.9 be shown to the people when they are asked to
sign?
1. Whether the Lambino Group's initiative petition complies
In G.R. No. 174153, the Lambino Group prays for the
with Section 2, Article XVII of the Constitution on
issuance of the writs of certiorari and mandamus to set aside MR. SUAREZ: That can be reasonably
amendments to the Constitution through a people's initiative;
the COMELEC Resolution of 31 August 2006 and to compel assumed, Madam President.
the COMELEC to give due course to their initiative petition.
The Lambino Group contends that the COMELEC committed 2. Whether this Court should revisit its ruling
MR. RODRIGO: What does the sponsor
grave abuse of discretion in denying due course to their in Santiago declaring RA 6735 "incomplete, inadequate or
mean? The draft is ready and shown to them
petition since Santiago is not a binding precedent. wanting in essential terms and conditions" to implement the
before they sign. Now, who prepares the draft?
Alternatively, the Lambino Group claims that Santiago binds initiative clause on proposals to amend the Constitution; and
only the parties to that case, and their petition deserves
cognizance as an expression of the "will of the sovereign MR. SUAREZ: The people themselves, Madam
3. Whether the COMELEC committed grave abuse of
people." President.
discretion in denying due course to the Lambino Group's
petition.
In G.R. No. 174299, petitioners ("Binay Group") pray that the MR. RODRIGO: No, because before they sign
Court require respondent COMELEC Commissioners to there is already a draft shown to them and they
The Ruling of the Court
show cause why they should not be cited in contempt for the are asked whether or not they want to propose this
COMELEC's verification of signatures and for "entertaining" constitutional amendment.
the Lambino Group's petition despite the permanent There is no merit to the petition.
injunction in Santiago. The Court treated the Binay Group's
petition as an opposition-in-intervention. MR. SUAREZ: As it is envisioned, any Filipino
The Lambino Group miserably failed to comply with the basic can prepare that proposal and pass it around
requirements of the Constitution for conducting a people's for signature.13 (Emphasis supplied)
In his Comment to the Lambino Group's petition, the Solicitor initiative. Thus, there is even no need to revisit Santiago, as
General joined causes with the petitioners, urging the Court the present petition warrants dismissal based alone on the
to grant the petition despite the Santiago ruling. The Clearly, the framers of the Constitution intended that the
Lambino Group's glaring failure to comply with the basic
"draft of the proposed constitutional amendment" should
Solicitor General proposed that the Court treat RA 6735 and requirements of the Constitution. For following the Court's
be "ready and shown" to the people "before" they sign such
its implementing rules "as temporary devises to implement ruling in Santiago, no grave abuse of discretion is
proposal. The framers plainly stated that "before they sign
the system of initiative." attributable to the Commision on Elections.
there is already a draft shown to them." The framers also
"envisioned" that the people should sign on the proposal signer having actually examined the petition, could arguments against their proposal. The proponents, or their
itself because the proponents must "prepare that proposal easily mislead the signer by, for example, omitting, supporters, often pay those who gather the signatures.
and pass it around for signature." downplaying, or even flatly misrepresenting,
portions of the petition that might not be to the
Thus, there is no presumption that the proponents observed
signer's liking. This danger seems particularly
The essence of amendments "directly proposed by the the constitutional requirements in gathering the signatures.
acute when, in this case, the person giving the
people through initiative upon a petition" is that the The proponents bear the burden of proving that they
description is the drafter of the petition, who
entire proposal on its face is a petition by the people. complied with the constitutional requirements in gathering
obviously has a vested interest in seeing that it
This means two essential elements must be present. First, the signatures - that the petition contained, or
gets the requisite signatures to qualify for the
the people must author and thus sign the entire proposal. No incorporated by attachment, the full text of the proposed
ballot.17 (Boldfacing and underscoring supplied)
agent or representative can sign on their behalf. Second, as amendments.
an initiative upon a petition, the proposal must be embodied
in a petition. Likewise, in Kerr v. Bradbury,18 the Court of Appeals of
The Lambino Group did not attach to their present petition
Oregon explained:
with this Court a copy of the paper that the people signed as
These essential elements are present only if the full text of their initiative petition. The Lambino Group submitted to this
the proposed amendments is first shown to the people who The purposes of "full text" provisions that apply to Court a copy of a signature sheet20 after the oral arguments
express their assent by signing such complete proposal in a amendments by initiative commonly are described of 26 September 2006 when they filed their Memorandum on
petition. Thus, an amendment is "directly proposed by in similar terms. x x x (The purpose of the full 11 October 2006. The signature sheet with this Court during
the people through initiative upon a petition" only if the text requirement is to provide sufficient the oral arguments was the signature sheet attached21 to the
people sign on a petition that contains the full text of the information so that registered voters can opposition in intervention filed on 7 September 2006 by
proposed amendments. intelligently evaluate whether to sign the intervenor Atty. Pete Quirino-Quadra.
initiative petition."); x x x (publication of full text
of amended constitutional provision required
The full text of the proposed amendments may be either The signature sheet attached to Atty. Quadra's opposition
because it is "essential for the elector to have x x x
written on the face of the petition, or attached to it. If so and the signature sheet attached to the Lambino Group's
the section which is proposed to be added to or
attached, the petition must state the fact of such attachment. Memorandum are the same. We reproduce below the
subtracted from. If he is to vote intelligently, he
This is an assurance that every one of the several millions of signature sheet in full:
must have this knowledge. Otherwise in many
signatories to the petition had seen the full text of the
instances he would be required to vote in the
proposed amendments before signing. Otherwise, it is
dark.") (Emphasis supplied) Province: City/Municipality:
physically impossible, given the time constraint, to prove that
every one of the millions of signatories had seen the full text Legislative District: Barangay:
of the proposed amendments before signing. Moreover, "an initiative signer must be informed at the time
of signing of the nature and effect of that which is
proposed" and failure to do so is "deceptive and
The framers of the Constitution directly borrowed 14 the
misleading" which renders the initiative void.19
concept of people's initiative from the United States where PROPOSITION: "DO YOU APPROVE OF THE
various State constitutions incorporate an initiative clause. In AMENDMENT OF ARTICLES VI AND VII OF THE 1987
almost all States15 which allow initiative petitions, the Section 2, Article XVII of the Constitution does not expressly CONSTITUTION, CHANGING THE FORM OF
unbending requirement is that the people must first see state that the petition must set forth the full text of the GOVERNMENT FROM THE PRESENT BICAMERAL-
the full text of the proposed amendments before they proposed amendments. However, the deliberations of the PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY
sign to signify their assent, and that the people must framers of our Constitution clearly show that the framers SYSTEM OF GOVERNMENT, IN ORDER TO ACHIEVE
sign on an initiative petition that contains the full text of intended to adopt the relevant American jurisprudence on GREATER EFFICIENCY, SIMPLICITY AND ECONOMY IN
the proposed amendments.16 people's initiative. In particular, the deliberations of the GOVERNMENT; AND PROVIDING AN ARTICLE XVIII AS
Constitutional Commission explicitly reveal that the framers TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT
intended that the people must first see the full text of the FROM ONE SYSTEM TO ANOTHER?"
The rationale for this requirement has been repeatedly
proposed amendments before they sign, and that the
explained in several decisions of various courts. Thus,
people must sign on a petition containing such full text.
in Capezzuto v. State Ballot Commission, the Supreme I hereby APPROVE the proposed amendment to the 1987
Indeed, Section 5(b) of Republic Act No. 6735, the Initiative
Court of Massachusetts, affirmed by the First Circuit Court Constitution. My signature herein which shall form part of the
and Referendum Act that the Lambino Group invokes as
of Appeals, declared: petition for initiative to amend the Constitution signifies my
valid, requires that the people must sign the "petition x x x
as signatories." support for the filing thereof.
[A] signature requirement would be
meaningless if the person supplying the
The proponents of the initiative secure the signatures from Precinct Name Address
signature has not first seen what it is that he or
the people. The proponents secure the signatures in their Number
she is signing. Further, and more importantly,
private capacity and not as public officials. The proponents
loose interpretation of the subscription requirement Last Name, First Name,
are not disinterested parties who can impartially explain the
can pose a significant potential for fraud. A person M.I.
advantages and disadvantages of the proposed
permitted to describe orally the contents of an 1
amendments to the people. The proponents present
initiative petition to a potential signer, without the
favorably their proposal to the people and do not present the
2 registered voter, for and on behalf of the Union prejudice to other pragmatic means to pursue the
3 of Local Authorities of the Philippines, as same;
shown by ULAP Resolution No. 2006-02 hereto
4 attached, and as representative of the mass of
5 WHEREFORE, BE IT RESOLVED AS IT IS
signatories hereto. (Emphasis supplied)
HEREBY RESOLVED, THAT ALL THE
6 MEMBER-LEAGUES OF THE UNION OF LOCAL
7 The Lambino Group failed to attach a copy of ULAP AUTHORITIES OF THE PHILIPPINES (ULAP)
8 Resolution No. 2006-02 to the present petition. However, the SUPPORT THE PORPOSALS (SIC) OF THE
9 "Official Website of the Union of Local Authorities of the PEOPLE'S CONSULATATIVE (SIC)
Philippines"22 has posted the full text of Resolution No. 2006- COMMISSION ON CHARTER CHANGE
10
02, which provides: THROUGH PEOPLE'S INITIATIVE AND
_________________ _________________ __________________ REFERENDUM AS A MODE OF AMENDING
Barangay Official Witness Witness THE 1987 CONSTITUTION;
RESOLUTION NO. 2006-02
(Print Name and Sign) (Print Name and Sign) (Print Name and Sign)
There is not a single word, phrase, or sentence of text of DONE, during the ULAP National Executive Board
RESOLUTION SUPPORTING THE PROPOSALS
the Lambino Group's proposed changes in the signature special meeting held on 14 January 2006 at the
OF THE PEOPLE'S CONSULTATIVE
sheet. Neither does the signature sheet state that the Century Park Hotel, Manila.23 (Underscoring
COMMISSION ON CHARTER CHANGE
text of the proposed changes is attached to it. Petitioner supplied)
THROUGH PEOPLE'S INITIATIVE AND
Atty. Raul Lambino admitted this during the oral arguments REFERENDUM AS A MODE OF AMENDING
before this Court on 26 September 2006. THE 1987 CONSTITUTION ULAP Resolution No. 2006-02 does not authorize petitioner
Aumentado to prepare the 25 August 2006 petition, or the 30
The signature sheet merely asks a question whether the August 2006 amended petition, filed with the COMELEC.
WHEREAS, there is a need for the Union of Local
people approve a shift from the Bicameral-Presidential to the ULAP Resolution No. 2006-02 "support(s) the porposals
Authorities of the Philippines (ULAP) to adopt a
Unicameral-Parliamentary system of government. The (sic) of the Consulatative (sic) Commission on Charter
common stand on the approach to support the
signature sheet does not show to the people the draft of Change through people's initiative and referendum as a
proposals of the People's Consultative
the proposed changes before they are asked to sign the mode of amending the 1987 Constitution." The proposals of
Commission on Charter Change;
signature sheet. Clearly, the signature sheet is not the the Consultative Commission24 are vastly different from the
"petition" that the framers of the Constitution envisioned proposed changes of the Lambino Group in the 25 August
when they formulated the initiative clause in Section 2, WHEREAS, ULAP maintains its unqualified 2006 petition or 30 August 2006 amended petition filed with
Article XVII of the Constitution. support to the agenda of Her Excellency President the COMELEC.
Gloria Macapagal-Arroyo for constitutional reforms
as embodied in the ULAP Joint Declaration for
Petitioner Atty. Lambino, however, explained that during the For example, the proposed revisions of the Consultative
Constitutional Reforms signed by the members of
signature-gathering from February to August 2006, the Commission affect all provisions of the existing
the ULAP and the majority coalition of the House
Lambino Group circulated, together with the signature Constitution, from the Preamble to the Transitory
of Representatives in Manila Hotel sometime in
sheets, printed copies of the Lambino Group's draft petition Provisions. The proposed revisions have profound impact
October 2005;
which they later filed on 25 August 2006 with the COMELEC. on the Judiciary and the National Patrimony provisions of the
When asked if his group also circulated the draft of their existing Constitution, provisions that the Lambino Group's
amended petition filed on 30 August 2006 with the WHEREAS, the People's Consultative proposed changes do not touch. The Lambino Group's
COMELEC, Atty. Lambino initially replied that they circulated Commission on Charter Change created by Her proposed changes purport to affect only Articles VI and VII of
both. However, Atty. Lambino changed his answer and Excellency to recommend amendments to the the existing Constitution, including the introduction of new
stated that what his group circulated was the draft of the 30 1987 Constitution has submitted its final report Transitory Provisions.
August 2006 amended petition, not the draft of the 25 August sometime in December 2005;
2006 petition. The ULAP adopted Resolution No. 2006-02 on 14 January
WHEREAS, the ULAP is mindful of the current 2006 or more than six months before the filing of the 25
The Lambino Group would have this Court believe that they political developments in Congress which militates August 2006 petition or the 30 August 2006 amended
prepared the draft of the 30 August 2006 amended against the use of the expeditious form of petition with the COMELEC. However, ULAP Resolution No.
petition almost seven months earlier in February amending the 1987 Constitution; 2006-02 does not establish that ULAP or the Lambino Group
2006 when they started gathering signatures. Petitioner caused the circulation of the draft petition, together with the
Erico B. Aumentado's "Verification/Certification" of the 25 signature sheets, six months before the filing with the
WHEREAS, subject to the ratification of its COMELEC. On the contrary, ULAP Resolution No. 2006-02
August 2006 petition, as well as of the 30 August 2006 institutional members and the failure of Congress
amended petition, filed with the COMELEC, states as casts grave doubt on the Lambino Group's claim that
to amend the Constitution as a constituent they circulated the draft petition together with the
follows: assembly, ULAP has unanimously agreed to signature sheets. ULAP Resolution No. 2006-02 does not
pursue the constitutional reform agenda through refer at all to the draft petition or to the Lambino Group's
I have caused the preparation of the foregoing People's Initiative and Referendum without proposed changes.
[Amended] Petition in my personal capacity as a
In their Manifestation explaining their amended petition Group alleged that they circulated "the petition for proposed changes to the great majority of the people
before the COMELEC, the Lambino Group declared: initiative" but failed to mention the amended petition. This who signed the signature sheets.
contradicts what Atty. Lambino finally stated during the oral
arguments that what they circulated was the draft of
After the Petition was filed, Petitioners belatedly Thus, of the 6.3 million signatories, only 100,000 signatories
the amended petition of 30 August 2006.
realized that the proposed amendments alleged in could have received with certainty one copy each of the
the Petition, more specifically, paragraph 3 of petition, assuming a 100 percent distribution with no
Section 4 and paragraph 2 of Section 5 of the The Lambino Group cites as authority Corpus Juris wastage. If Atty. Lambino and company attached one copy
Transitory Provisions were inaccurately stated and Secundum, stating that "a signer who did not read the of the petition to each signature sheet, only 100,000
failed to correctly reflect their proposed measure attached to a referendum petition cannot signature sheets could have circulated with the petition.
amendments. question his signature on the ground that he did not Each signature sheet contains space for ten signatures.
understand the nature of the act." The Lambino Group Assuming ten people signed each of these 100,000
quotes an authority that cites a proposed signature sheets with the attached petition, the maximum
The Lambino Group did not allege that they were amending
change attached to the petition signed by the people. number of people who saw the petition before they signed
the petition because the amended petition was what they
Even the authority the Lambino Group quotes requires that the signature sheets would not exceed 1,000,000.
had shown to the people during the February to August 2006
the proposed change must be attached to the petition. The
signature-gathering. Instead, the Lambino Group alleged that
same authority the Lambino Group quotes requires the
the petition of 25 August 2006 "inaccurately stated and failed With only 100,000 printed copies of the petition, it would be
people to sign on the petition itself.
to correctly reflect their proposed amendments." physically impossible for all or a great majority of the 6.3
million signatories to have seen the petition before they
Indeed, it is basic in American jurisprudence that the signed the signature sheets. The inescapable conclusion
The Lambino Group never alleged in the 25 August 2006
proposed amendment must be incorporated with, or attached is that the Lambino Group failed to show to the 6.3
petition or the 30 August 2006 amended petition with the
to, the initiative petition signed by the people. In the present million signatories the full text of the proposed changes.
COMELEC that they circulated printed copies of the draft
initiative, the Lambino Group's proposed changes were not If ever, not more than one million signatories saw the petition
petition together with the signature sheets. Likewise, the
incorporated with, or attached to, the signature sheets. The before they signed the signature sheets.
Lambino Group did not allege in their present petition before
Lambino Group's citation of Corpus Juris Secundumpulls the
this Court that they circulated printed copies of the draft
rug from under their feet.
petition together with the signature sheets. The signature In any event, the Lambino Group's signature sheets do not
sheets do not also contain any indication that the draft contain the full text of the proposed changes, either on the
petition is attached to, or circulated with, the signature It is extremely doubtful that the Lambino Group prepared, face of the signature sheets, or as attachment with an
sheets. printed, circulated, from February to August 2006 during the indication in the signature sheet of such
signature-gathering period, the draft of the petition or attachment. Petitioner Atty. Lambino admitted this during
amended petition they filed later with the COMELEC. The the oral arguments, and this admission binds the
It is only in their Consolidated Reply to the Opposition-in-
Lambino Group are less than candid with this Court in their Lambino Group. This fact is also obvious from a mere
Interventions that the Lambino Group first claimed that they
belated claim that they printed and circulated, together with reading of the signature sheet. This omission is fatal.
circulated the "petition for initiative filed with the COMELEC,"
the signature sheets, the petition or amended The failure to so include the text of the proposed changes in
thus:
petition. Nevertheless, even assuming the Lambino the signature sheets renders the initiative void for non-
Group circulated the amended petition during the compliance with the constitutional requirement that the
[T]here is persuasive authority to the effect signature-gathering period, the Lambino Group admitted amendment must be "directly proposed by the people
that "(w)here there is not (sic) fraud, a signer circulating only very limited copies of the petition. through initiative upon a petition." The signature sheet is
who did not read the measure attached to a not the "petition" envisioned in the initiative clause of the
referendum petition cannot question his Constitution.
During the oral arguments, Atty. Lambino expressly
signature on the ground that he did not
admitted that they printed only 100,000 copies of the
understand the nature of the act." [82 C.J.S.
draft petition they filed more than six months later with For sure, the great majority of the 6.3 million people who
S128h. Mo. State v. Sullivan, 224, S.W. 327, 283
the COMELEC. Atty. Lambino added that he also asked signed the signature sheets did not see the full text of the
Mo. 546.] Thus, the registered voters who
other supporters to print additional copies of the draft petition proposed changes before signing. They could not have
signed the signature sheets circulated together
but he could not state with certainty how many additional known the nature and effect of the proposed changes,
with the petition for initiative filed with the
copies the other supporters printed. Atty. Lambino could among which are:
COMELEC below, are presumed to have
only assure this Court of the printing of 100,000 copies
understood the proposition contained in the
because he himself caused the printing of these 100,000
petition. (Emphasis supplied) 1. The term limits on members of the
copies.
legislature will be lifted and thus members of
Parliament can be re-elected indefinitely;26
The Lambino Group's statement that they circulated to the
Likewise, in the Lambino Group's Memorandum filed on 11
people "the petition for initiative filed with the COMELEC"
October 2006, the Lambino Group expressly admits that
appears an afterthought, made after the intervenors 2. The interim Parliament can continue to function
"petitioner Lambino initiated the printing and
Integrated Bar of the Philippines (Cebu City Chapter and indefinitely until its members, who are almost all
reproduction of 100,000 copies of the petition for
Cebu Province Chapters) and Atty. Quadra had pointed out the present members of Congress, decide to call
initiative x x x."25 This admission binds the Lambino
that the signature sheets did not contain the text of the for new parliamentary elections. Thus,
Group and establishes beyond any doubt that the
proposed changes. In their Consolidated Reply, the Lambino the members of the interim Parliament will
Lambino Group failed to show the full text of the
determine the expiration of their own term of members of the House of Representatives to hold office Combining multiple propositions into one
office; 27 beyond their current three-year term of office, and possibly proposal constitutes "logrolling," which, if our
even beyond the five-year term of office of regular members judicial responsibility is to mean anything, we
of the Parliament. Certainly, this is contrary to the cannot permit. The very broadness of the
3. Within 45 days from the ratification of the
representations of Atty. Lambino and his group to the proposed amendment amounts to logrolling
proposed changes, the interim Parliament shall
6.3 million people who signed the signature sheets. Atty. because the electorate cannot know what it is
convene to propose further amendments or
Lambino and his group deceived the 6.3 million voting on - the amendment's proponents' simplistic
revisions to the Constitution.28
signatories, and even the entire nation. explanation reveals only the tip of the iceberg. x x
x x The ballot must give the electorate fair notice
These three specific amendments are not stated or even of the proposed amendment being voted on. x x x
This lucidly shows the absolute need for the people to sign
indicated in the Lambino Group's signature sheets. The x The ballot language in the instant case fails to do
an initiative petition that contains the full text of the proposed
people who signed the signature sheets had no idea that that. The very broadness of the proposal makes it
amendments to avoid fraud or misrepresentation. In the
they were proposing these amendments. These three impossible to state what it will affect and effect and
present initiative, the 6.3 million signatories had to rely on
proposed changes are highly controversial. The people could violates the requirement that proposed
the verbal representations of Atty. Lambino and his group
not have inferred or divined these proposed changes merely amendments embrace only one subject.
because the signature sheets did not contain the full text of
from a reading or rereading of the contents of the signature (Emphasis supplied)
the proposed changes. The result is a grand deception on
sheets.
the 6.3 million signatories who were led to believe that the
proposed changes would require the holding in 2007 of Logrolling confuses and even deceives the people. In Yute
During the oral arguments, petitioner Atty. Lambino stated elections for the regular Parliament simultaneously with the Air Alaska v. McAlpine,30 the Supreme Court of Alaska
that he and his group assured the people during the local elections. warned against "inadvertence, stealth and fraud" in
signature-gathering that the elections for the regular logrolling:
Parliament would be held during the 2007 local
The Lambino Group's initiative springs another surprise on
elections if the proposed changes were ratified before the
the people who signed the signature sheets. The proposed Whenever a bill becomes law through the initiative process,
2007 local elections. However, the text of the proposed
changes mandate the interim Parliament to make further all of the problems that the single-subject rule was enacted
changes belies this.
amendments or revisions to the Constitution. The proposed to prevent are exacerbated. There is a greater danger of
Section 4(4), Article XVIII on Transitory Provisions, provides: logrolling, or the deliberate intermingling of issues to
The proposed Section 5(2), Article XVIII on Transitory increase the likelihood of an initiative's passage, and there
Provisions, as found in the amended petition, states: is a greater opportunity for "inadvertence, stealth and
Section 4(4). Within forty-five days from ratification
fraud" in the enactment-by-initiative process. The
of these amendments, the interim Parliament shall
drafters of an initiative operate independently of any
Section 5(2). The interim Parliament shall provide convene to propose amendments to, or
structured or supervised process. They often emphasize
for the election of the members of revisions of, this Constitution consistent with
particular provisions of their proposition, while remaining
Parliament, which shall be synchronized and the principles of local autonomy, decentralization
silent on other (more complex or less appealing) provisions,
held simultaneously with the election of all and a strong bureaucracy. (Emphasis supplied)
when communicating to the public. x x x Indeed, initiative
local government officials. x x x x (Emphasis promoters typically use simplistic advertising to present
supplied) their initiative to potential petition-signers and eventual
During the oral arguments, Atty. Lambino stated that this
provision is a "surplusage" and the Court and the people voters. Many voters will never read the full text of the
Section 5(2) does not state that the elections for the regular should simply ignore it. Far from being a surplusage, this initiative before the election. More importantly, there is no
Parliament will be held simultaneously with the 2007 local provision invalidates the Lambino Group's initiative. process for amending or splitting the several provisions in an
elections. This section merely requires that the elections for initiative proposal. These difficulties clearly distinguish the
the regular Parliament shall be held simultaneously with the initiative from the legislative process. (Emphasis supplied)
Section 4(4) is a subject matter totally unrelated to the shift
local elections without specifying the year.
from the Bicameral-Presidential to the Unicameral-
Parliamentary system. American jurisprudence on initiatives Thus, the present initiative appears merely a preliminary step
Petitioner Atty. Lambino, who claims to be the principal outlaws this as logrolling - when the initiative petition for further amendments or revisions to be undertaken by the
drafter of the proposed changes, could have easily written incorporates an unrelated subject matter in the same interim Parliament as a constituent assembly. The people
the word "next" before the phrase "election of all local petition. This puts the people in a dilemma since they can who signed the signature sheets could not have known that
government officials." This would have insured that the answer only either yes or no to the entire proposition, forcing their signatures would be used to propose an
elections for the regular Parliament would be held in the next them to sign a petition that effectively contains two amendment mandating the interim Parliament to
local elections following the ratification of the proposed propositions, one of which they may find unacceptable. propose further amendments or revisions to the
changes. However, the absence of the word "next" allows Constitution.
the interim Parliament to schedule the elections for the
Under American jurisprudence, the effect of logrolling is
regular Parliament simultaneously with any future local
to nullify the entire proposition and not only the unrelated Apparently, the Lambino Group inserted the proposed
elections.
subject matter. Thus, in Fine v. Firestone,29 the Supreme Section 4(4) to compel the interim Parliament to amend or
Court of Florida declared: revise again the Constitution within 45 days from ratification
Thus, the members of the interim Parliament will decide the of the proposed changes, or before the May 2007
expiration of their own term of office. This allows incumbent elections. In the absence of the proposed Section 4(4), the
interim Parliament has the discretion whether to amend or operate as a gigantic fraud on the people. That is why the second mode is through a constitutional convention. The
revise again the Constitution. With the proposed Section Constitution requires that an initiative must be "directly third mode is through a people's initiative.
4(4), the initiative proponents want the interim proposed by the people x x x in a petition" - meaning that
Parliament mandated to immediately amend or revise again the people must sign on a petition that contains the full text
Section 1 of Article XVII, referring to the first and second
the Constitution. of the proposed amendments. On so vital an issue as
modes, applies to "[A]ny amendment to, or revision of, this
amending the nation's fundamental law, the writing of the
Constitution." In contrast, Section 2 of Article XVII, referring
text of the proposed amendments cannot be hidden from
However, the signature sheets do not explain the reason for to the third mode, applies only to "[A]mendments to this
the people under a general or special power of attorney to
this rush in amending or revising again so soon the Constitution." This distinction was intentional as shown by
unnamed, faceless, and unelected individuals.
Constitution. The signature sheets do not also explain what the following deliberations of the Constitutional Commission:
specific amendments or revisions the initiative proponents
want the interim Parliament to make, and why there is a The Constitution entrusts to the people the power to directly
MR. SUAREZ: Thank you, Madam President.
need for such further amendments or revisions. The people propose amendments to the Constitution. This Court trusts
are again left in the dark to fathom the nature and effect the wisdom of the people even if the members of this Court
of the proposed changes. Certainly, such an initiative is not do not personally know the people who sign the May we respectfully call the attention of the
"directly proposed by the people" because the people do not petition. However, this trust emanates from a Members of the Commission that pursuant to the
even know the nature and effect of the proposed changes. fundamental assumption: the full text of the proposed mandate given to us last night, we submitted this
amendment is first shown to the people before they sign afternoon a complete Committee Report No. 7
the petition, not after they have signed the petition. which embodies the proposed provision governing
There is another intriguing provision inserted in the Lambino
the matter of initiative. This is now covered by
Group's amended petition of 30 August 2006. The proposed
Section 2 of the complete committee report. With
Section 4(3) of the Transitory Provisions states: In short, the Lambino Group's initiative is void and
the permission of the Members, may I quote
unconstitutional because it dismally fails to comply with the
Section 2:
requirement of Section 2, Article XVII of the Constitution that
Section 4(3). Senators whose term of office ends
the initiative must be "directly proposed by the people
in 2010 shall be members of Parliament until noon
through initiative upon a petition." The people may, after five years from the date of
of the thirtieth day of June 2010.
the last plebiscite held, directly propose
amendments to this Constitution thru initiative
2. The Initiative Violates Section 2, Article XVII of the
After 30 June 2010, not one of the present Senators will upon petition of at least ten percent of the
Constitution Disallowing Revision through Initiatives
remain as member of Parliament if the interim Parliament registered voters.
does not schedule elections for the regular Parliament by 30
June 2010. However, there is no counterpart provision for A people's initiative to change the Constitution applies only
This completes the blanks appearing in the original
the present members of the House of Representatives even to an amendment of the Constitution and not to its revision.
Committee Report No. 7. This proposal was
if their term of office will all end on 30 June 2007, three years In contrast, Congress or a constitutional convention can
suggested on the theory that this matter of
earlier than that of half of the present Senators. Thus, all the propose both amendments and revisions to the Constitution.
initiative, which came about because of the
present members of the House will remain members of the Article XVII of the Constitution provides:
extraordinary developments this year, has to be
interim Parliament after 30 June 2010.
separated from the traditional modes of amending
ARTICLE XVII the Constitution as embodied in Section 1. The
The term of the incumbent President ends on 30 June 2010. AMENDMENTS OR REVISIONS committee members felt that this system of
Thereafter, the Prime Minister exercises all the powers of the initiative should be limited to amendments to
President. If the interim Parliament does not schedule the Constitution and should not extend to the
Sec. 1. Any amendment to, or revision of, this
elections for the regular Parliament by 30 June 2010, the revision of the entire Constitution, so we
Constitution may be proposed by:
Prime Minister will come only from the present members of removed it from the operation of Section 1 of
the House of Representatives to the exclusion of the the proposed Article on Amendment or
present Senators. (1) The Congress, upon a vote of three-fourths of Revision. x x x x
all its Members, or
The signature sheets do not explain this discrimination xxxx
against the Senators. The 6.3 million people who signed (2) A constitutional convention.
the signature sheets could not have known that their
MS. AQUINO: [I] am seriously bothered by
signatures would be used to discriminate against the
Sec. 2. Amendments to this Constitution may providing this process of initiative as a separate
Senators. They could not have known that their
likewise be directly proposed by the people section in the Article on Amendment. Would the
signatures would be used to limit, after 30 June 2010,
through initiative x x x. (Emphasis supplied) sponsor be amenable to accepting an amendment
the interim Parliament's choice of Prime Minister only to
in terms of realigning Section 2 as another
members of the existing House of Representatives.
subparagraph (c) of Section 1, instead of setting it
Article XVII of the Constitution speaks of three modes of
up as another separate section as if it were a self-
An initiative that gathers signatures from the people amending the Constitution. The first mode is through executing provision?
without first showing to the people the full text of the Congress upon three-fourths vote of all its Members. The
proposed amendments is most likely a deception, and can
MR. SUAREZ: We would be amenable except This has been the consistent ruling of state supreme courts Whether it be a revision or a new constitution, it is
that, as we clarified a while ago, this process of in the United States. Thus, in McFadden v. Jordan,32the not such a measure as can be submitted to the
initiative is limited to the matter of amendment Supreme Court of California ruled: people through the initiative. If a revision, it is
and should not expand into a revision which subject to the requirements of Article XVII, Section
contemplates a total overhaul of the 2(1); if a new constitution, it can only be proposed
The initiative power reserved by the people by
Constitution. That was the sense that was at a convention called in the manner provided in
amendment to the Constitution x x x applies
conveyed by the Committee. Article XVII, Section 1. x x x x
only to the proposing and the adopting or
rejecting of 'laws and amendments to the
MS. AQUINO: In other words, the Committee Constitution' and does not purport to extend to Similarly, in this jurisdiction there can be no dispute that a
was attempting to distinguish the coverage of a constitutional revision. x x x x It is thus clear people's initiative can only propose amendments to the
modes (a) and (b) in Section 1 to include the that a revision of the Constitution may be Constitution since the Constitution itself limits initiatives to
process of revision; whereas, the process of accomplished only through ratification by the amendments. There can be no deviation from the
initiation to amend, which is given to the people of a revised constitution proposed by a constitutionally prescribed modes of revising the
public, would only apply to amendments? convention called for that purpose as outlined Constitution. A popular clamor, even one backed by 6.3
hereinabove. Consequently if the scope of the million signatures, cannot justify a deviation from the specific
proposed initiative measure (hereinafter termed modes prescribed in the Constitution itself.
MR. SUAREZ: That is right. Those were the
'the measure') now before us is so broad that if
terms envisioned in the Committee.
such measure became law a substantial revision
As the Supreme Court of Oklahoma ruled in In re Initiative
of our present state Constitution would be
Petition No. 364:34
MS. AQUINO: I thank the sponsor; and thank you, effected, then the measure may not properly be
Madam President. submitted to the electorate until and unless it is
first agreed upon by a constitutional convention, It is a fundamental principle that a constitution
and the writ sought by petitioner should issue. x x can only be revised or amended in the manner
xxxx x x (Emphasis supplied) prescribed by the instrument itself, and that
any attempt to revise a constitution in a
MR. MAAMBONG: My first question: manner other than the one provided in the
Likewise, the Supreme Court of Oregon ruled in Holmes v.
Commissioner Davide's proposed amendment instrument is almost invariably treated as
Appling:33
on line 1 refers to "amendments." Does it not extra-constitutional and revolutionary. x x x x
cover the word "revision" as defined by "While it is universally conceded that the people
Commissioner Padilla when he made the It is well established that when a constitution are sovereign and that they have power to adopt a
distinction between the words "amendments" specifies the manner in which it may be amended constitution and to change their own work at will,
and "revision"? or revised, it can be altered by those who favor they must, in doing so, act in an orderly manner
amendments, revision, or other change only and according to the settled principles of
through the use of one of the specified means. constitutional law. And where the people, in
MR. DAVIDE: No, it does not, because
The constitution itself recognizes that there is a adopting a constitution, have prescribed the
"amendments" and "revision" should be
difference between an amendment and a revision; method by which the people may alter or amend it,
covered by Section 1. So insofar as initiative is
and it is obvious from an examination of the an attempt to change the fundamental law in
concerned, it can only relate to "amendments"
measure here in question that it is not an violation of the self-imposed restrictions, is
not "revision."
amendment as that term is generally understood unconstitutional." x x x x (Emphasis supplied)
and as it is used in Article IV, Section 1. The
MR. MAAMBONG: Thank you.31 (Emphasis document appears to be based in large part on the
This Court, whose members are sworn to defend and protect
supplied) revision of the constitution drafted by the
the Constitution, cannot shirk from its solemn oath and duty
'Commission for Constitutional Revision'
to insure compliance with the clear command of the
authorized by the 1961 Legislative Assembly, x x x
There can be no mistake about it. The framers of the Constitution ― that a people's initiative may only amend,
and submitted to the 1963 Legislative Assembly. It
Constitution intended, and wrote, a clear distinction never revise, the Constitution.
failed to receive in the Assembly the two-third's
between "amendment" and "revision" of the Constitution. The majority vote of both houses required by Article
framers intended, and wrote, that only Congress or a XVII, Section 2, and hence failed of adoption, x x The question is, does the Lambino Group's initiative
constitutional convention may propose revisions to the x. constitute an amendment or revision of the Constitution? If
Constitution. The framers intended, and wrote, that a
the Lambino Group's initiative constitutes a revision, then the
people's initiative may propose only amendments to the
present petition should be dismissed for being outside the
Constitution. Where the intent and language of the While differing from that document in material
scope of Section 2, Article XVII of the Constitution.
Constitution clearly withhold from the people the power to respects, the measure sponsored by the plaintiffs
propose revisions to the Constitution, the people cannot is, nevertheless, a thorough overhauling of the
propose revisions even as they are empowered to propose present constitution x x x. Courts have long recognized the distinction between an
amendments. amendment and a revision of a constitution. One of the
earliest cases that recognized the distinction described the
To call it an amendment is a misnomer.
fundamental difference in this manner:
[T]he very term "constitution" implies an instrument proposed changes alter substantially the basic plan of Florida, striking down the initiative as outside the scope of
of a permanent and abiding nature, and government, from presidential to parliamentary, and from a the initiative clause, ruled as follows:
the provisions contained therein for its revision bicameral to a unicameral legislature.
indicate the will of the people that the
The proposal here to amend Section 1 of Article III
underlying principles upon which it rests, as
A change in the structure of government is a revision of the of the 1968 Constitution to provide for a
well as the substantial entirety of the
Constitution, as when the three great co-equal branches of Unicameral Legislature affects not only many
instrument, shall be of a like permanent and
government in the present Constitution are reduced into other provisions of the Constitution but
abiding nature. On the other hand, the significance
two. This alters the separation of powers in the provides for a change in the form of the
of the term "amendment" implies such an addition
Constitution. A shift from the present Bicameral- legislative branch of government, which has
or change within the lines of the original instrument
Presidential system to a Unicameral-Parliamentary system is been in existence in the United States Congress
as will effect an improvement, or better carry out
a revision of the Constitution. Merging the legislative and and in all of the states of the nation, except one,
the purpose for which it was framed.35 (Emphasis
executive branches is a radical change in the structure of since the earliest days. It would be difficult to
supplied)
government. visualize a more revolutionary change. The
concept of a House and a Senate is basic in the
Revision broadly implies a change that alters a basic American form of government. It would not only
The abolition alone of the Office of the President as the locus
principle in the constitution, like altering the principle of radically change the whole pattern of
of Executive Power alters the separation of powers and thus
separation of powers or the system of checks-and-balances. government in this state and tear apart the
constitutes a revision of the Constitution. Likewise, the
There is also revision if the change alters the substantial whole fabric of the Constitution, but would
abolition alone of one chamber of Congress alters the
entirety of the constitution, as when the change affects even affect the physical facilities necessary to
system of checks-and-balances within the legislature and
substantial provisions of the constitution. On the other carry on government.
constitutes a revision of the Constitution.
hand, amendment broadly refers to a change that adds,
reduces, or deletes without altering the basic principle
xxxx
involved. Revision generally affects several provisions of By any legal test and under any jurisdiction, a shift from a
the constitution, while amendment generally affects only the Bicameral-Presidential to a Unicameral-Parliamentary
specific provision being amended. system, involving the abolition of the Office of the President We conclude with the observation that if such
and the abolition of one chamber of Congress, is beyond proposed amendment were adopted by the people
doubt a revision, not a mere amendment. On the face alone at the General Election and if the Legislature at its
In California where the initiative clause allows amendments
of the Lambino Group's proposed changes, it is readily next session should fail to submit further
but not revisions to the constitution just like in our
apparent that the changes will radically alter the amendments to revise and clarify the numerous
Constitution, courts have developed a two-part test: the
framework of government as set forth in the inconsistencies and conflicts which would result, or
quantitative test and the qualitative test. The quantitative test
Constitution. Father Joaquin Bernas, S.J., a leading if after submission of appropriate amendments the
asks whether the proposed change is "so extensive in its
member of the Constitutional Commission, writes: people should refuse to adopt them, simple chaos
provisions as to change directly the 'substantial entirety' of
would prevail in the government of this State. The
the constitution by the deletion or alteration of numerous
same result would obtain from an amendment, for
existing provisions."36 The court examines only the number An amendment envisages an alteration of one or a few
instance, of Section 1 of Article V, to provide for
of provisions affected and does not consider the degree of specific and separable provisions. The guiding original
only a Supreme Court and Circuit Courts-and
the change. intention of an amendment is to improve specific parts or to
there could be other examples too numerous to
add new provisions deemed necessary to meet new
detail. These examples point unerringly to the
conditions or to suppress specific portions that may have
The qualitative test inquires into the qualitative effects of the answer.
become obsolete or that are judged to be dangerous. In
proposed change in the constitution. The main inquiry is
revision, however, the guiding original intention and plan
whether the change will "accomplish such far reaching
contemplates a re-examination of the entire document, or of The purpose of the long and arduous work of the
changes in the nature of our basic governmental plan as to
provisions of the document which have over-all implications hundreds of men and women and many sessions
amount to a revision."37 Whether there is an alteration in the
for the entire document, to determine how and to what extent of the Legislature in bringing about the
structure of government is a proper subject of inquiry. Thus,
they should be altered. Thus, for instance a switch from Constitution of 1968 was to eliminate
"a change in the nature of [the] basic governmental plan"
the presidential system to a parliamentary system would inconsistencies and conflicts and to give the State
includes "change in its fundamental framework or the
be a revision because of its over-all impact on the entire a workable, accordant, homogenous and up-to-
fundamental powers of its Branches."38 A change in the
constitutional structure. So would a switch from a date document. All of this could disappear very
nature of the basic governmental plan also includes changes
bicameral system to a unicameral system be because of quickly if we were to hold that it could be amended
that "jeopardize the traditional form of government and the
its effect on other important provisions of the in the manner proposed in the initiative petition
system of check and balances."39
Constitution.41 (Emphasis supplied) here.43(Emphasis supplied)

Under both the quantitative and qualitative tests, the


In Adams v. Gunter,42 an initiative petition proposed the The rationale of the Adams decision applies with greater
Lambino Group's initiative is a revision and not merely an
amendment of the Florida State constitution to shift from a force to the present petition. The Lambino Group's initiative
amendment. Quantitatively, the Lambino Group's proposed
bicameral to a unicameral legislature. The issue turned on not only seeks a shift from a bicameral to a unicameral
changes overhaul two articles - Article VI on the Legislature
whether the initiative "was defective and unauthorized where legislature, it also seeks to merge the executive and
and Article VII on the Executive - affecting a total of 105
[the] proposed amendment would x x x affect several other legislative departments. The initiative in Adams did not even
provisions in the entire Constitution.40Qualitatively, the
provisions of [the] Constitution." The Supreme Court of touch the executive department.
In Adams, the Supreme Court of Florida enumerated 18 initiative, the changes would constitute a revision of the section 2, and cannot appear on the ballot without
sections of the Florida Constitution that would be affected by Constitution. Thus, the Lambino Group concedes that the the prior approval of the legislature.
the shift from a bicameral to a unicameral legislature. In the proposed changes in the present initiative constitute a
Lambino Group's present initiative, no less than 105 revision if Congress or a constitutional convention had
We first address Mabon's argument that Article
provisions of the Constitution would be affected based drafted the changes. However, since the Lambino Group
XVII, section 2(1), does not prohibit revisions
on the count of Associate Justice Romeo J. Callejo, as private individuals drafted the proposed changes, the
instituted by initiative. In Holmes v. Appling, x x
Sr.44 There is no doubt that the Lambino Group's present changes are merely amendments to the Constitution. The
x, the Supreme Court concluded that a revision of
initiative seeks far more radical changes in the structure of Lambino Group trivializes the serious matter of changing the
the constitution may not be accomplished by
government than the initiative in Adams. fundamental law of the land.
initiative, because of the provisions of Article XVII,
section 2. After reviewing Article XVII, section1,
The Lambino Group theorizes that the difference between The express intent of the framers and the plain language relating to proposed amendments, the court said:
"amendment" and "revision" is only one of procedure, not of the Constitution contradict the Lambino Group's theory.
of substance. The Lambino Group posits that when a Where the intent of the framers and the language of the
"From the foregoing it appears that Article IV,
deliberative body drafts and proposes changes to the Constitution are clear and plainly stated, courts do not
Section 1, authorizes the use of the initiative as a
Constitution, substantive changes are called "revisions" deviate from such categorical intent and language.45 Any
means of amending the Oregon Constitution, but it
because members of the deliberative body work full-time theory espousing a construction contrary to such intent and
contains no similar sanction for its use as a means
on the changes. However, the same substantive changes, language deserves scant consideration. More so, if such
of revising the constitution." x x x x
when proposed through an initiative, are called theory wreaks havoc by creating inconsistencies in the form
"amendments" because the changes are made by of government established in the Constitution. Such a theory,
ordinary people who do not make an "occupation, devoid of any jurisprudential mooring and inviting It then reviewed Article XVII, section 2, relating
profession, or vocation" out of such endeavor. inconsistencies in the Constitution, only exposes the to revisions, and said: "It is the only section of the
flimsiness of the Lambino Group's position. Any theory constitution which provides the means for
advocating that a proposed change involving a radical constitutional revision and it excludes the idea that
Thus, the Lambino Group makes the following exposition of
structural change in government does not constitute a an individual, through the initiative, may place
their theory in their Memorandum:
revision justly deserves rejection. such a measure before the electorate." x x x x

99. With this distinction in mind, we note that the


The Lambino Group simply recycles a theory that initiative Accordingly, we reject Mabon's argument that
constitutional provisions expressly provide for both
proponents in American jurisdictions have attempted to Article XVII, section 2, does not apply to
"amendment" and "revision" when it speaks of
advance without any success. In Lowe v. Keisling,46 the constitutional revisions proposed by initiative.
legislators and constitutional delegates, while the
Supreme Court of Oregon rejected this theory, thus: (Emphasis supplied)
same provisions expressly provide only for
"amendment" when it speaks of the people. It
would seem that the apparent distinction is based Mabon argues that Article XVII, section 2, does not Similarly, this Court must reject the Lambino Group's theory
on the actual experience of the people, that on one apply to changes to the constitution proposed by which negates the express intent of the framers and the plain
hand the common people in general are not initiative. His theory is that Article XVII, section language of the Constitution.
expected to work full-time on the matter of 2 merely provides a procedure by which the
correcting the constitution because that is not their legislature can propose a revision of the
constitution, but it does not affect proposed We can visualize amendments and revisions as a spectrum,
occupation, profession or vocation; while on the
other hand, the legislators and constitutional revisions initiated by the people. at one end green for amendments and at the other end red
convention delegates are expected to work full- for revisions. Towards the middle of the spectrum, colors
fuse and difficulties arise in determining whether there is an
time on the same matter because that is their
Plaintiffs argue that the proposed ballot measure amendment or revision. The present initiative is indisputably
occupation, profession or vocation. Thus, the
constitutes a wholesale change to the constitution located at the far end of the red spectrum where revision
difference between the words "revision" and
that cannot be enacted through the initiative begins. The present initiative seeks a radical overhaul of the
"amendment" pertain only to the process or
process. They assert that the distinction between existing separation of powers among the three co-equal
procedure of coming up with the corrections,
amendment and revision is determined by departments of government, requiring far-reaching
for purposes of interpreting the constitutional
reviewing the scope and subject matter of the amendments in several sections and articles of the
provisions.
proposed enactment, and that revisions are not Constitution.
limited to "a formal overhauling of the constitution."
100. Stated otherwise, the difference between They argue that this ballot measure proposes far
"amendment" and "revision" cannot Where the proposed change applies only to a specific
reaching changes outside the lines of the original
reasonably be in the substance or extent of the instrument, including profound impacts on existing provision of the Constitution without affecting any other
correction. x x x x (Underlining in the original; fundamental rights and radical restructuring of the section or article, the change may generally be considered
an amendment and not a revision. For example, a change
boldfacing supplied) government's relationship with a defined group of
citizens. Plaintiffs assert that, because the reducing the voting age from 18 years to 15 years47 is an
proposed ballot measure "will refashion the most amendment and not a revision. Similarly, a change reducing
The Lambino Group in effect argues that if Congress or a Filipino ownership of mass media companies from 100
basic principles of Oregon constitutional law," the
constitutional convention had drafted the same proposed percent to 60 percent is an amendment and not a
trial court correctly held that it violated Article XVII,
changes that the Lambino Group wrote in the present revision.48 Also, a change requiring a college degree as an
additional qualification for election to the Presidency is an The basic rule in statutory construction is that if a later law is 3. A Revisit of Santiago v. COMELEC is Not Necessary
amendment and not a revision.49 irreconcilably inconsistent with a prior law, the later law
prevails. This rule also applies to construction of
The present petition warrants dismissal for failure to comply
constitutions. However, the Lambino Group's draft of Section
The changes in these examples do not entail any with the basic requirements of Section 2, Article XVII of the
2 of the Transitory Provisions turns on its head this rule of
modification of sections or articles of the Constitution other Constitution on the conduct and scope of a people's initiative
construction by stating that in case of such irreconcilable
than the specific provision being amended. These changes to amend the Constitution. There is no need to revisit this
inconsistency, the earlier provision "shall be amended to
do not also affect the structure of government or the system Court's ruling in Santiago declaring RA 6735 "incomplete,
conform with a unicameral parliamentary form of
of checks-and-balances among or within the three branches. inadequate or wanting in essential terms and conditions" to
government." The effect is to freeze the two irreconcilable
These three examples are located at the far green end of the cover the system of initiative to amend the Constitution. An
provisions until the earlier one "shall be amended," which
spectrum, opposite the far red end where the revision sought affirmation or reversal of Santiago will not change the
requires a future separate constitutional amendment.
by the present petition is located. outcome of the present petition. Thus, this Court must
decline to revisit Santiago which effectively ruled that RA
Realizing the absurdity of the need for such an amendment, 6735 does not comply with the requirements of the
However, there can be no fixed rule on whether a change is
petitioner Atty. Lambino readily conceded during the oral Constitution to implement the initiative clause on
an amendment or a revision. A change in a single word of
arguments that the requirement of a future amendment is a amendments to the Constitution.
one sentence of the Constitution may be a revision and not
"surplusage." In short, Atty. Lambino wants to reinstate the
an amendment. For example, the substitution of the word
rule of statutory construction so that the later provision
"republican" with "monarchic" or "theocratic" in Section 1, This Court must avoid revisiting a ruling involving the
automatically prevails in case of irreconcilable inconsistency.
Article II50 of the Constitution radically overhauls the entire constitutionality of a statute if the case before the Court can
However, it is not as simple as that.
structure of government and the fundamental ideological be resolved on some other grounds. Such avoidance is a
basis of the Constitution. Thus, each specific change will logical consequence of the well-settled doctrine that courts
have to be examined case-by-case, depending on how it The irreconcilable inconsistency envisioned in the proposed will not pass upon the constitutionality of a statute if the case
affects other provisions, as well as how it affects the Section 2 of the Transitory Provisions is not between a can be resolved on some other grounds.51
structure of government, the carefully crafted system of provision in Article VI of the 1987 Constitution and a
checks-and-balances, and the underlying ideological basis of provision in the proposed changes. The inconsistency is
Nevertheless, even assuming that RA 6735 is valid to
the existing Constitution. between a provision in Article VI of the 1987 Constitution and
implement the constitutional provision on initiatives to amend
the "Parliamentary system of government," and the
the Constitution, this will not change the result here because
inconsistency shall be resolved in favor of a "unicameral
Since a revision of a constitution affects basic principles, or the present petition violates Section 2, Article XVII of the
parliamentary form of government."
several provisions of a constitution, a deliberative body Constitution. To be a valid initiative, the present initiative
with recorded proceedings is best suited to undertake a must first comply with Section 2, Article XVII of the
revision. A revision requires harmonizing not only several Now, what "unicameral parliamentary form of Constitution even before complying with RA 6735.
provisions, but also the altered principles with those that government" do the Lambino Group's proposed changes
remain unaltered. Thus, constitutions normally authorize refer to ― the Bangladeshi, Singaporean, Israeli, or New
Even then, the present initiative violates Section 5(b) of RA
deliberative bodies like constituent assemblies or Zealand models, which are among the few countries
6735 which requires that the "petition for an initiative on the
constitutional conventions to undertake revisions. On the with unicameral parliaments? The proposed changes
1987 Constitution must have at least twelve per
other hand, constitutions allow people's initiatives, which do could not possibly refer to the traditional and well-known
centum (12%) of the total number of registered voters as
not have fixed and identifiable deliberative bodies or parliamentary forms of government ― the British, French,
signatories." Section 5(b) of RA 6735 requires that the
recorded proceedings, to undertake only amendments and Spanish, German, Italian, Canadian, Australian, or
people must sign the "petition x x x as signatories."
not revisions. Malaysian models, which have all bicameral parliaments.
Did the people who signed the signature sheets realize that
they were adopting the Bangladeshi, Singaporean, Israeli, or The 6.3 million signatories did not sign the petition of 25
In the present initiative, the Lambino Group's proposed
New Zealand parliamentary form of government? August 2006 or the amended petition of 30 August 2006 filed
Section 2 of the Transitory Provisions states:
with the COMELEC. Only Atty. Lambino, Atty.
Demosthenes B. Donato, and Atty. Alberto C. Agra
This drives home the point that the people's initiative is not
Section 2. Upon the expiration of the term of the signed the petition and amended petition as counsels
meant for revisions of the Constitution but only for
incumbent President and Vice President, with the for "Raul L. Lambino and Erico B. Aumentado,
amendments. A shift from the present Bicameral-Presidential
exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Petitioners." In the COMELEC, the Lambino Group,
to a Unicameral-Parliamentary system requires harmonizing
Article VI of the 1987 Constitution which shall claiming to act "together with" the 6.3 million signatories,
several provisions in many articles of the Constitution.
hereby be amended and Sections 18 and 24 which merely attached the signature sheets to the petition and
Revision of the Constitution through a people's initiative will
shall be deleted, all other Sections of Article VI are amended petition. Thus, the petition and amended petition
only result in gross absurdities in the Constitution.
hereby retained and renumbered sequentially as filed with the COMELEC did not even comply with the basic
Section 2, ad seriatim up to 26, unless they are requirement of RA 6735 that the Lambino Group claims as
inconsistent with the Parliamentary system of In sum, there is no doubt whatsoever that the Lambino valid.
government, in which case, they shall be Group's initiative is a revision and not an amendment. Thus,
amended to conform with a unicameral the present initiative is void and unconstitutional because it
The Lambino Group's logrolling initiative also violates
parliamentary form of government; x x x x violates Section 2, Article XVII of the Constitution limiting the
Section 10(a) of RA 6735 stating, "No petition embracing
(Emphasis supplied) scope of a people's initiative to "[A]mendments to this
more than one (1) subject shall be submitted to the
Constitution."
electorate; x x x." The proposed Section 4(4) of the will. That approval included the prescribed modes for ____________________
Transitory Provisions, mandating the interim Parliament to amending or revising the Constitution.
propose further amendments or revisions to the Constitution,
EN BANC
is a subject matter totally unrelated to the shift in the form of
No amount of signatures, not even the 6,327,952 million
government. Since the present initiative embraces more than
signatures gathered by the Lambino Group, can change our
one subject matter, RA 6735 prohibits submission of the G.R. No. 174153 October 25, 2006
Constitution contrary to the specific modes that the people,
initiative petition to the electorate. Thus, even if RA 6735 is
in their sovereign capacity, prescribed when they ratified the
valid, the Lambino Group's initiative will still fail.
Constitution. The alternative is an extra-constitutional RAUL L. LAMBINO AND ERICO B. AUMENTADO,
change, which means subverting the people's sovereign TOGETHER WITH 6,327,952 REGISTERED VOTERS V.
4. The COMELEC Did Not Commit Grave Abuse of will and discarding the Constitution. This is one act the COMMISSION ON ELECTIONS ET AL.
Discretion in Dismissing the Lambino Group's Initiative Court cannot and should never do. As the ultimate guardian
of the Constitution, this Court is sworn to perform its solemn
SEPARATE CONCURRING OPINION
duty to defend and protect the Constitution, which embodies
In dismissing the Lambino Group's initiative petition, the
the real sovereign will of the people.
COMELEC en banc merely followed this Court's ruling
PANGANIBAN, CJ.:
in Santiago and People's Initiative for Reform,
Modernization and Action (PIRMA) v. COMELEC.52 For Incantations of "people's voice," "people's sovereign will," or
following this Court's ruling, no grave abuse of discretion is "let the people decide" cannot override the specific modes of
attributable to the COMELEC. On this ground alone, the changing the Constitution Without the ruleinofthe
as prescribed law,Constitution
there can be no lasting prosperity and certainly no liberty.
present petition warrants outright dismissal. Thus, this Court itself. Otherwise, the Constitution ― the people's
should reiterate its unanimous ruling in PIRMA: fundamental covenant thatBeverley
provides enduring stability to our McLachlin 1
Chief Justice of Canada
society ― becomes easily susceptible to manipulative
changes by political groups gathering signatures through After a deep reflection on the issues raised and a careful
The Court ruled, first, by a unanimous vote, that no
false promises. Then, the Constitution ceases to be the evaluation of the parties' respective arguments -- both oral
grave abuse of discretion could be attributed to the
bedrock of the nation's stability. and written -- as well as the enlightened and enlightening
public respondent COMELEC in dismissing the
petition filed by PIRMA therein, it appearing that it Opinions submitted by my esteemed colleagues, I am fully
only complied with the dispositions in the The Lambino Group claims that their initiative is the convinced that the present Petition must be dismissed.
Decisions of this Court in G.R. No. 127325, "people's voice." However, the Lambino Group unabashedly
promulgated on March 19, 1997, and its states in ULAP Resolution No. 2006-02, in the verification of I write, however, to show that my present disposition is
Resolution of June 10, 1997. their petition with the COMELEC, that "ULAP maintains completely consistent with my previous Opinions and votes
its unqualified support to the agenda of Her Excellency on the two extant Supreme Court cases involving an initiative
President Gloria Macapagal-Arroyo for constitutional to change the Constitution.
5. Conclusion
reforms." The Lambino Group thus admits that their
"people's" initiative is an "unqualified support to the agenda"
The Constitution, as the fundamental law of the land, of the incumbent President to change the Constitution. This In my Separate Opinion in Santiago v. Comelec,2 I opined
deserves the utmost respect and obedience of all the forewarns the Court to be wary of incantations of "people's "that taken together and interpreted properly and liberally,
citizens of this nation. No one can trivialize the Constitution voice" or "sovereign will" in the present initiative. the Constitution (particularly Art. XVII, Sec. 2), Republic Act
by cavalierly amending or revising it in blatant violation of the 6735 and Comelec Resolution 2300 provide more than
clearly specified modes of amendment and revision laid sufficient
This Court cannot betray its primordial duty to defend and
down in the Constitution itself.
protect the Constitution. The Constitution, which embodies
the people's sovereign will, is the bible of this Court. This __________________
To allow such change in the fundamental law is to set adrift Court exists to defend and protect the Constitution. To
the Constitution in unchartered waters, to be tossed and allow this constitutionally infirm initiative, propelled by 'SEC. 2. Amendments to this Constitution may
turned by every dominant political group of the day. If this deceptively gathered signatures, to alter basic principles in likewise be directly proposed by the people
Court allows today a cavalier change in the Constitution the Constitution is to allow a desecration of the Constitution. through initiative upon a petition of at least twelve
outside the constitutionally prescribed modes, tomorrow the To allow such alteration and desecration is to lose this per centum of the total number of registered
new dominant political group that comes will demand its own Court's raison d'etre. voters, of which every legislative district must be
set of changes in the same cavalier and unconstitutional represented by at least three per centum of the
fashion. A revolving-door constitution does not augur well for registered voters therein. No amendment under
WHEREFORE, we DISMISS the petition in G.R. No. 174153.
the rule of law in this country. this section shall be authorized within five years
following the ratification of this Constitution nor
SO ORDERED.
An overwhelming majority − 16,622,111 voters comprising oftener than once every five years thereafter.'
76.3 percent of the total votes cast53 − approved our
Constitution in a national plebiscite held on 11 February Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, "With all due respect, I find the majority's position
1987. That approval is the unmistakable voice of the Sandoval-Gutierrez, Austria-Martinez, Corona, Carpio all too sweeping and all too extremist. It is
people, the full expression of the people's sovereign Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, Garcia, equivalent to burning the whole house to
and Velasco, Jr., JJ., concur.
exterminate the rats, and to killing the patient to __________________ "By way of epilogue, let me stress the guiding
relieve him of pain. What Citizen Delfin wants the tenet of my Separate Opinion. Initiative, like
Comelec to do we should reject. But we should not referendum and recall, is a new and treasured
E. Abueg, Jr., Leopoldo L. Africa, Andres R.
thereby preempt any future effort to exercise the feature of the Filipino constitutional system. All
Flores, Dario C. Rama and Magdara B.
right of initiative correctly and judiciously. The fact three are institutionalized legacies of the world-
Dimaampao. All of these Commissioners who
that the Delfin Petition proposes a misuse of admired EDSA people power. Like elections and
signed Resolution 2300 have retired from the
initiative does not justify a ban against its proper plebiscites, they are hallowed expressions of
Commission, and thus we cannot ascribe any vile
use. Indeed, there is a right way to do the right popular sovereignty. They are sacred democratic
motive unto them, other than an honest, sincere
thing at the right time and for the right reason. rights of our people to be used as
and exemplary effort to give life to a cherished
right of our people.
Taken Together and Interpreted Properly, Six months after, in my Separate Opinion in People's
the Constitution, R.A. 6735 and Comelec Initiative for Reform, Modernization and Action (PIRMA) v.
"The majority argues that while Resolution 2300 is
Resolution Comelec,3 I joined the rest of the members of the Court in
valid in regard to national laws and local
2300 Are Sufficient to Implement Constitutional ruling "by a unanimous vote, that no grave abuse of
legislations, it is void in reference to constitutional
Initiatives discretion could be attributed to the Comelec in dismissing
amendments. There is no basis for such
the petition filed by
differentiation. The source of and authority for the
"While R.A. 6735 may not be a perfect law, it was Resolution is the same law, R.A. 6735.
— as the majority openly concedes — intended by __________________
the legislature to cover and, I respectfully submit, it
"I respectfully submit that taken together and
contains enough provisions to effectuate an
interpreted properly and liberally, the Constitution Constitution x x x." While concededly, petitioners
initiative on the Constitution. I completely agree
(particularly Art. XVII, Sec. 2), R.A. 6735 and in this case were not direct parties in Santiago,
with the inspired and inspiring opinions of Mr.
Comelec Resolution 2300 provide more than nonetheless the Court's injunction against the
Justice Reynato S. Puno and Mr. Justice Ricardo
sufficient authority to implement, effectuate and Comelec covered ANY petition, not just the Delfin
J. Francisco that RA 6735, the Roco law on
realize our people's power to amend the petition which was the immediate subject of said
initiative, sufficiently implements the right of the
Constitution. case. As a dissenter in Santiago, I believed,
people to initiate amendments to the Constitution.
and still do, that the majority gravely erred in
Such views, which I shall no longer repeat nor
rendering such a sweeping injunction, but I
elaborate on, are thoroughly consistent with this Petitioner Delfin and the Pedrosa
cannot fault the Comelec for complying with
Court's unanimous en banc rulings in Subic Bay Spouses Should Not Be Muzzled
the ruling even if it, too, disagreed with said
Metropolitan Authority vs. Commission on
decision's ratio decidendi. Respondent
Elections, that "provisions for initiative . . . are (to
"I am glad the majority decided to heed our plea to Comelec was directly enjoined by the highest
be) liberally construed to effectuate their purposes,
lift the temporary restraining order issued by this Court of the land. It had no choice but to obey.
to facilitate and not hamper the exercise by the
Court on 18 December 1996 insofar as it Its obedience cannot constitute grave abuse of
voters of the rights granted thereby"; and in Garcia
prohibited Petitioner Delfin and the Spouses discretion. Refusal to act on the PIRMA petition
vs. Comelec, that any "effort to trivialize the
Pedrosa from exercising their right of initiative. In was the only recourse open to the Comelec. Any
effectiveness of people's initiatives ought to be
fact, I believe that such restraining order as other mode of action would have constituted
rejected."
against private respondents should not have been defiance of the Court and would have been struck
issued, in the first place. While I agree that the down as grave abuse of discretion and
"No law can completely and absolutely cover all Comelec should be stopped from using public contumacious disregard of this Court's supremacy
administrative details. In recognition of this, R.A. funds and government resources to help them as the final arbiter of justiciable controversies.
6735 wisely empowered the Commission on gather signatures, I firmly believe that this Court
Election "to promulgate such rules and regulations has no power to restrain them from exercising their
Second Issue:
as may be necessary to carry out the purposes of right of initiative. The right to propose amendments
Sufficiency of RA 6735
this Act." And pursuant thereto, the Comelec to the Constitution is really a species of the right of
issued its Resolution 2300 on 16 January 1991. free speech and free assembly. And certainly, it
Such Resolution, by its very words, was would be tyrannical and despotic to stop anyone "I repeat my firm legal position that RA 6735 is
promulgated "to govern the conduct of initiative on from speaking freely and persuading others to adequate to cover initiatives on the
the Constitution and initiative and referendum on conform to his/her beliefs. As the eminent Voltaire Constitution, and that whatever administrative
national and local laws," not by the incumbent once said, 'I may disagree with what you say, but I details may have been omitted in said law are
Commission on Elections but by one then will defend to the death your right to say it.' After satisfactorily provided by Comelec Resolution
composed of Acting Chairperson Haydee B. all, freedom is not really for the thought we agree 2300. The promulgation of Resolution 2300 is
Yorac, Comms. Alfredo with, but as Justice Holmes wrote, 'freedom for the sanctioned by Section 2, Article IX-C of the
thought that we hate.' Constitution, which vests upon the Comelec the
power to "enforce and administer all laws and
authority to implement, effectuate and realize our people's
regulations relative to the conduct of an election,
power to amend the Constitution." Epilogue
plebiscite, initiative, referendum and recall." The
Omnibus Election Code likewise empowers the
electoral body to "promulgate rules and regulations "Pursuant to Section 3(f) of the law, the Comelec I added "that my position upholding the adequacy of RA
implementing the provisions of this Code or other shall prescribe the form of the petition which shall 6735 and the validity of Comelec Resolution 2300 will
laws which the Commission is required to enforce contain the proposition and the required number of not ipso
and administer x x x." Finally and most relevantly, signatories. Under Sec. 5(c) thereof, the petition
Section 20 of Ra 6735 specifically authorizes shall state the following:
__________________
Comelec "to promulgate rules and regulations as
may be necessary to carry out the purposes of this
'c.1 contents or text of the [provision or
Act." "Within thirty (30) days from receipt of the petition,
provisions] sought to be x x x amended,
and after the determination of its sufficiency, the
x x x;
Comelec shall publish the same in Filipino and
"In my dissent in Santiago, I wrote that "there is
English at least twice in newspapers of general
a right way to do the right thing at the right
c.2 the proposition [in full text]; and local circulation, and set the date of the
time and for the right reason." Let me explain
plebiscite. The conduct of the plebiscite should not
further.
be earlier than sixty (60) days, but not later than
c.3 the reason or reasons therefor [fully
ninety (90) days after certification by the Comelec
and clearly explained];
The Right Thing of the sufficiency of the petition. The proposition, if
approved by a majority of the votes cast in the
c.4 that it is not one of exceptions plebiscite, becomes effective as of the day of the
"A people's initiative is direct democracy in action.
provided herein; plebiscite.
It is the right thing that citizens may avail
themselves of to articulate their will. It is a new and
treasured feature of the Filipino constitutional c.5 signatures of the petitioners or "From the foregoing, it should be clear that my
system. Even the majority implicitly conceded its registered voters; and position upholding the adequacy of RA 6735 and
value and worth in our legal firmament when it the validity of Comelec Resolution 2300 will
implored Congress "not to tarry any longer in not ipso facto validate the PIRMA petition and
complying with the constitutional mandate to c.6 an abstract or summary proposition automatically lead to a plebiscite to amend the
provide for implementation of the right (of initiative) in not more than one hundred (100) Constitution. Far from it. Among others, PIRMA
words which shall be legibly written or
of the people x x x." Hence, in the en banc case must still satisfactorily hurdle the following
of Subic Bay Metropolitan Authority vs. Comelec, printed at the top of every page of the searching issues:
[G.R. No. 125416, September 26, 1996], this Court petition.'
unanimously held that "(l)ike elections, initiative
1. Does the proposed change – the lifting of the
and referendum are powerful and valuable modes "Section 8(f) of Comelec Resolution 2300 term limits of elective officials -- constitute a mere
of expressing popular additionally requires that the petition include a amendment and not a revision of the Constitution?
formal designation of the duly authorized
PIRMA therein," since the Commission had "only complied" representatives of the signatories.
2. Which registry of voters will be used to verify the
with the Santiago Decision.
signatures in the petition? This question is relevant
"Being a constitutional requirement, the number of considering that under RA 8189, the old registry of
__________________ signatures becomes a condition precedent to the voters used in the 1995 national elections was
filing of the petition, and is jurisdictional. Without
voided after the barangay elections on May 12,
such requisite signatures, the Commission 1997, while the new list may be used starting only
sovereignty. And this Court as a matter of policy shall motu proprio reject the petition. in the elections of May 1998.
and doctrine will exert every effort to nurture,
protect and promote their legitimate exercise."
"Where the initiators have substantially complied 3. Does the clamor for the proposed change in the
with the above requirements, they may thence file Constitution really emanate from the people who
The Right Way the petition with the Comelec which is tasked to
signed the petition for initiative? Or it is the
determine the sufficiency thereof and to verify the beneficiaries of term extension who are in fact
signatures on the basis of the registry list of voters, orchestrating such move to advance their own
"From the outset, I have already maintained the
voters' affidavits and voters' identification cards. In
view that "taken together and interpreted properly political self-interest?
deciding whether the petition is sufficient, the
and liberally, the Constitution (particularly Art.
Comelec shall also determine if the proposition is
XVII, Sec. 2), RA 6735 and Comelec Resolution
proper for an initiative, i.e., if it consists of an 4. Are the six million signatures genuine and
2300 provide more than sufficient authority to
amendment, not a revision, of the Constitution. verifiable? Do they really belong to qualified warm
implement, effectuate and realize our people's
Any decision of the electoral body may be bodies comprising at least 12% of the registered
power to amend the Constitution." Let me now
appealed to the Supreme Court within thirty (30) voters nationwide, of which every legislative
demonstrate the adequacy of RA 6735 by
days from notice. district is represented by at least 3% of the
outlining, in concrete terms, the steps to be taken
registered voters therein?
– the right way – to amend the Constitution
through a people's initiative.
"I shall expound on the third question in the next "In Garcia vs. Commission on Elections, we the majority effectively abrogated a constitutional
section, The Right Reason. Question Nos. 1 and 2 described initiative, along with referendum, as the right of our people. That is why in my Separate
above, while important, are basically legal in 'ultimate weapon of the people to negate Opinion in Santiago, I exclaimed that such
character and can be determined by government malfeasance and misfeasance.' precipitate action "is equivalent to burning the
argumentation and memoranda. However, In Subic Bay, we specified that 'initiative is entirely whole house to exterminate the rats, and to killing
Question No. 4 involves not only legal issues but the work of the electorate x x x a process of the patient to relieve him of pain." I firmly maintain
gargantuan hurdles of factual determination. This lawmaking by the people themselves without the that to defeat PIRMA's effort, there is no need to
to my mind is the crucible, the litmus test, of a participation and against the wishes of their "burn" the constitutional right to initiative. If
people's petition for initiative. If herein petitioners, elected representatives.' As ponente of Subic PIRMA's exercise is not "legitimate," it can be
led by PIRMA, succeed in proving -- not just Bay, I stand foursquare on this principle: The exposed as such in the ways I have discussed –
alleging -- that six million voters of this country right to amend through initiative belongs only short of abrogating the right itself. On the other
indeed want to amend the Constitution, what to the people – not to the government and its hand, if PIRMA's position is proven to be legitimate
power on earth can stop them? Not this Court, not minions. This principle finds clear support from – if it hurdles the four issues I outlined earlier – by
the Comelec, not even the President or Congress. utterances of many constitutional commissioners all means, we should allow and encourage it. But
like those quoted below: the majority's theory of statutory inadequacy has
pre-empted – unnecessarily and invalidly, in my
facto validate the PIRMA petition and automatically lead to a
view – any judicial determination of such
plebiscite to amend the Constitution. Far from it." I stressed "[Initiative is] a reserve power of the sovereign
legitimacy or illegitimacy. It has silenced the quest
that PIRMA must show the following, among others: people, when they are dissatisfied with the
for truth into the interstices of the PIRMA petition.
National Assembly x x x [and] precisely a fallback
position of the people in the event that they are
__________________
dissatisfied." -- Commissioner Ople The Right Time

"It took only one million people to stage a peaceful


"[Initiative is] a check on a legislative that is not "The Constitution itself sets a time limitation on
revolution at EDSA, and the very rafters and
responsive [and resorted to] only if the legislature when changes thereto may be proposed. Section
foundations of the martial law society trembled,
is not as responsive to the vital and urgent needs 2 of Article XVII precludes amendments "within
quaked and crumbled. On the other hand, PIRMA
of people." -- Commissioner Gascon five years following [its] ratification x x x nor
and its co-petitioners are claiming that they have
oftener than once every five years thereafter."
gathered six million signatures. If, as claimed by
Since its ratification, the 1987 Constitution has
many, these six million signatures are fraudulent, (1) The proposed change -- the lifting of term limits of
never been amended. Hence, the five-year
then let them be exposed and damned for all elective officials -- "constitute[s] a mere amendment and not
prohibition is now inoperative and amendments
history in a signature-verification process a revision of the Constitution."
may theoretically be proposed at any time.
conducted under our open system of legal
advocacy.
_________________
"Be that as it may, I believe – given the present
circumstances – that there is no more time to lift
"More than anything else, it is the truth that I, as a
"[Initiative is an] extraordinary power given to the term limits to enable incumbents to seek reelection
member of this Court and as a citizen of this
people [and] reserved for the people [which] in the May 11, 1998 polls. Between today and the
country, would like to seek: Are these six million
should not be frivolously resorted to." -- next national
signatures real? By insisting on an entirely new
Commissioner Romulo
doctrine of statutory inadequacy, the majority
effectively suppressed the quest for that truth. (2) The "six million signatures are genuine and verifiable";
"Indeed, if the powers-that-be desire to amend the and they "really belong to qualified warm bodies comprising
Constitution, or even to revise it, our Charter itself at
The Right Reason
provides them other ways of doing so, namely, by
calling a constitutional convention or constituting
__________________
"As mentioned, the third question that must be Congress into a constituent assembly. These are
answered, even if the adequacy of RA 6735 and officialdom's weapons. But initiative belongs to the
the validity of Comelec Resolution 2300 were people. elections, less than eight (8) months
upheld by the majority is: Does the clamor for the remain. Santiago, where the single issue of the
proposed change to the Constitution really sufficiency of RA 6735 was resolved, took this
"In the present case, are PIRMA and its co-
emanate from the people who signed the petition Court three (3) months, and another two (2)
petitioners legitimate people's organizations or are
for initiative? Or is it the beneficiaries of term months to decide the motion for reconsideration.
they merely fronts for incumbents who want to
extension who are in fact orchestrating such move The instant case, where the same issue is also
extend their terms? This is a factual question
to advance their own political self-interests? In raised by the petitioners, took two months, not
which, unfortunately, cannot be judicially answered
other words, is PIRMA's exercise of the right to counting a possible motion for reconsideration.
anymore, because the Supreme Court majority
initiative being done in accordance with our These time spans could not be abbreviated any
ruled that the law that implements it, RA 6735, is
Constitution and our laws? Is such attempted further, because due process requires that all
inadequate or insufficient insofar as initiatives to
exercise legitimate?
the Constitutions are concerned. With such ruling,
parties be given sufficient time to file their hereafter and the morrow. Let me therefore stress, and yet they changed the history of our country.
pleadings. by way of epilogue, my unbending credo in favor PIRMA claims six times that number, not just from
of our people's right to initiative. the National Capital Region but from all over the
country. Is this claim through the invention of its
"Thus, even if the Court were to rule now in favor
novel theory of statutory insufficiency, the Court's
of the adequacy of RA 6735 – as I believe it least 12% of the registered voters nationwide, of which every
majority has stifled the only legal method of
should – and allow the Comelec to act on the legislative district is represented by at least 3% of the
determining whether PIRMA is real or not, whether
PIRMA petition, such eight-month period will not registered voters therein."
there is indeed a popular clamor to lift term limits
be enough to tackle the four weighty issues I
of elected officials, and whether six million voters
mentioned earlier, considering that two of them
__________________ want to initiate amendments to their most basic
involve tedious factual questions. The Comelec's
law. In suppressing a judicial answer to such
decision on any of these issues can still be
questions, the Court may have unwittingly yielded
elevated to this Court for review, and Epilogue to PIRMA the benefit of the legal presumption of
reconsiderations on our decisions on each of
legality and regularity. In its misplaced zeal to
those issues may again be sought.
"I believe in democracy – in our people's natural exterminate the rats, it burned down the whole
right to determine our own destiny. house. It unceremoniously divested the people of
"Comelec's herculean task alone of verifying each a basic constitutional right.
of the six million signatures is enormously time-
consuming, considering that any person may "I believe in the process of initiative as a
democratic method of enabling our people to In both Opinions, I concluded that we must implement "the
question the authenticity of each and every
express their will and chart their history. Initiative is right thing [initiative] in the right way at the right time and for
signature, initially before the election registrar,
an alternative to bloody revolution, internal chaos the right reason."
then before the Comelec on appeal and finally,
before this Court in a separate proceeding. and civil strife. It is an inherent right of the people
– as basic as the right to elect, the right to self-
Moreover, the plebiscite itself – assuming such In the present case, I steadfastly stand by my foregoing
stage can be reached – may be scheduled only determination and the right to individual liberties. I Opinions in Santiago and PIRMA. Tested against them, the
after sixty (60) but not more than ninety (90) days, believe that Filipinos have the ability and the present Petition of Raul Lambino and Erico Aumentado must
capacity to rise above themselves, to use this right be DISMISSED. Unfortunately, the right thing is being
from the time the Comelec and this Court, on
appeal, finally declare the petition to be sufficient. of initiative wisely and maturely, and to choose rushed in the wrong way and for the wrong reasons. Let
what is best for themselves and their posterity. me explain.
"Meanwhile, under Comelec Resolution 2946,
political parties, groups organizations or coalitions "Such beliefs, however, should not be equated No Grave Abuse
may start selecting their official candidates for with a desire to perpetuate a particular official or
President, Vice President and Senators on group of officials in power. Far from it. Such
perpetuation is anathema to democracy. My firm of Discretion by Comelec
November 27, 1997; the period for filing
certificates of candidacy is from January 11 to conviction that there is an adequate law
February 9, 1998; the election period and implementing the constitutional right of initiative
As in PIRMA, I find no grave abuse of discretion in
campaign for national officials start on February does not ipso facto result in the victory of the
Comelec's dismissal of the Lambino Petition. After all, the
PIRMA petition or of any proposed constitutional
10, 1998, while the campaign period for other Commission merely followed the holding
elective officials, on March 17, 1998. This means, change. There are, after all, sufficient safeguards
in Santiago permanently
by the time PIRMA's proposition is ready – if ever to guarantee the proper use of such constitutional
right and to forestall its misuse and
– for submission directly to the voters at large, it
will have been overcome by the elections. Time abuse. First, initiative cannot be used to revise the ____________________
will simply run out on PIRMA, if the intention is to Constitution, only to amend it. Second, the
petitioners' signatures must be validated against
lift term limits in time for the 1998 elections. "In the ultimate, the mission of the judiciary is to
an existing list of voters and/or voters' identification
discover truth and to make it prevail. This mission
cards. Third, initiative is a reverse power of and by
"That term limits may no longer be lifted prior to is undertaken not only to resolve the vagaries of
the people, not of incumbent officials and their
present events but also to build the pathways of
the 1998 elections via a people's initiative does not machinators. Fourth and most important of all, the
detract one whit from (1) my firm conviction that tomorrow. The sum total of the entire process of
signatures must be verified as real and genuine;
RA 6735 is sufficient and adequate to implement adversarial litigation is the verity of facts and the
not concocted, fictitious or fabricated. The only
application of law thereto. By the majority cop-out
this constitutional right and, more important, (2) my legal way to do this is to enable the Commission
faith in the power of the people to initiate changes in this mission of discovery, our country and our
on Elections to conduct a nationwide verification
in local and national laws and the Constitution. In people have been deprived not only of a basic
process as mandated by the Constitution and the
constitutional right, as earlier noted, but also of the
fact, I think the Court can deliberate on these two law. Such verification, it bears stressing, is subject
items even more serenely and wisely now that the judicial opportunity to verify the truth."
to review by this Court.
debates will be free from the din and distraction of
the 1998 elections. After all, jurisprudence is not enjoining the poll body "from entertaining or taking
merely for the here and now but, more so, for the "There were, by the most generous estimate, only
cognizance of any petition for initiative on amendments to
a million people who gathered at EDSA in 1986,
the Constitution until a sufficient law shall have been validly Even assuming further that this Court rules, as I believe it philosophy, the underlying principles, and the structure of
enacted to provide for the implementation of the system." should (for the reasons given in my Opinions in Santiago and government of our Republic.
PIRMA), that Republic Act 6735 is indeed sufficient to
implement an initiative to amend the Constitution, still, no
Indeed, the Comelec did not violate the Constitution, the Verily, even bills creating or changing the administrative
grave abuse of discretion can be attributed to the Comelec
laws or any jurisprudence.4 Neither can whim, caprice, structure of local governments take several weeks or even
for merely following prevailing jurisprudence extant at the
arbitrariness or personal bias be attributed to the months of drafting, reading, and debating before Congress
time it rendered its ruling in question.
Commission.5 Quite the contrary, it prudently followed this can approve them. How much more when it comes to
Court's jurisprudence in Santiago and PIRMA. Even constitutional changes?
assuming arguendo that Comelec erred in ruling on a very Only Amendments,
difficult and unsettled question of law, this Court still cannot
A change in the form of government of our country from
attribute grave abuse of discretion to the poll body with
Not Revisions presidential-bicameral to parliamentary-unicameral is
respect to that action.6
monumental. Even the initiative proponents admit this fact.
So, why should a revision be rammed down our people's
I reiterate that only amendments, not revisions, may be
The present Lambino Petition is in exactly the same situation throats without the benefit of intelligent discussion in a
the proper subject of an initiative to change the
as that of PIRMA in 1997. The differences pointed out by deliberative assembly?
Constitution. This principle is crystal clear from even a
Justice Reynato S. Puno are, with due respect, superficial. It
layperson's reading of the basic law.9
is argued that, unlike the present Lambino
Added to the constitutional mandate barring revisions is the
Petition, PIRMA did not contain verified signatures. These
provision of RA 6735 expressly prohibiting petitions for
are distinctions that do not make a difference. Precisely, I submit that changing the system of government from
initiative from "embracing more than one subject
Justice Puno is urging a remand, because the verification presidential to parliamentary and the form of the legislature
matter."10 The present initiative covers at least two subjects:
issue is "contentious" and remains unproven by from bicameral to unicameral contemplates an overhaul of
(1) the shift from a presidential to a parliamentary form of
petitioners. Clearly, both the PIRMA and the Lambino the structure of government. The ponencia has amply
government; and (2) the change from a bicameral to a
Petitions contain unverified signatures. Therefore, they demonstrated that the merger of the legislative and the
unicameral legislature.11 Thus, even under Republic Act
both deserve the same treatment: DISMISSAL. executive branches under a unicameral-parliamentary
6735 -- the law that Justice Puno and I hold to be sufficient
system, "[b]y any legal test and under any jurisdiction," will
and valid -- the Lambino Petition deserves dismissal.
"radically alter the framework of government as set forth in
Besides, the only reason given in the unanimous Resolution
the Constitution." Indeed, the proposed changes have an
on PIRMA v. Comelec was that the Commission had "only
overall implication on the entire Constitution; they effectively 12 Percent and 3 Percent Thresholds
complied" with this Court's Decision in Santiago, the same
rewrite its most important and basic provisions. The prolixity Not Proven by Petitioners
reason given by Comelec in this case. The Separate
and complexity of the changes cannot be categorized, even
Opinions in PIRMA gave no other reason. No one argued,
by semantic generosity, as "amendments."
even remotely, that the PIRMA Petition should have The litmus test of a people's petition for initiative is its ability
been dismissed because the signatures were unverified. to muster the constitutional requirement that it be supported
In addition, may I say that of the three modes of changing by at least 12 percent of the registered voters nationwide, of
the Constitution, revisions (or amendments) may be which at least 3 percent of the registered voters in every
To stress, I adhere to my Opinion in PIRMA that, "[b]eing a
proposed only through the first two: by Congress or by a legislative district must be represented. As pointed out by
constitutional requirement, the number of signatures
constitutional convention. Under the third mode -- people's Intervenors One Voice, Inc., et al., however, records show
becomes a condition precedent to the filing of the petition,
initiative -- only amendments are allowed. Many of the that there was a failure to meet the minimum percentages
and is jurisdictional.7 Without those signatures, the Comelec
justices' Opinions have cited the historical, philosophical and required.12
shall motu proprio reject the petition."
jurisprudential bases of their respective positions. I will not
add to the woes of the reader by reiterating them here.
Even Justice Puno concedes that the 12 percent and 3
So, until and unless Santiago is revisited and changed by
percent constitutional requirements involve "contentious
this Court or the legal moorings of the exercise of the right
Suffice it to say that, to me, the practical test to differentiate facts," which have not been proven by the Lambino Petition.
are substantially changed, the Comelec cannot be faulted
an amendment from a revision is found in the Constitution Thus, he is urging a remand to the Comelec.
for acting in accord with this Court's pronouncements.
itself: a revision may be done only when the proposed
Respondent Commission has no discretion, under any
change can be drafted, defined, articulated, discussed
guise, to refuse enforcement of any final decision of this But a remand is both imprudent and futile. It is imprudent
and agreed upon after a mature and democratic debate
Court.8 The refusal of the poll body to act on the Lambino because the Constitution itself mandates the said requisites
in a deliberative body like Congress or a
Petition was its only recourse. Any other mode of action of an initiative petition. In other words, a petition that does
Convention. The changes proposed must necessarily be
would appear not only presumptuous, but also not show the required percentages is fatally defective
scrutinized, as their adoption or non-adoption must result
contemptuous. It would have constituted defiance of the and must be dismissed, as the Delfin Petition was,
from an informed judgment.
Court and would have surely been struck down as grave in Santiago.
abuse of discretion and contumacious disregard of the
supremacy of this Court as the final arbiter of justiciable Indeed, the constitutional bodies that drafted the 1935, the
controversies. Furthermore, as the ponencia had discussed extensively, the
1972 and the 1987 Constitutions had to spend many months
present Petition is void and unconstitutional. It points out that
of purposeful discussions, democratic debates and rounds of
the Petition dismally fails to comply with the constitutional
voting before they could agree on the wordings covering the
requirement that an initiative must be directly proposed by
the people. Specifically, the ponencia has amply established At bottom, the issue in this case is simply the Rule of Verily, the Supreme Court is now on the crossroads of
that petitioners were unable to show that the Lambino Law.13 Initiative, like referendum and recall, is a treasured history. By its decision, the Court and each of its members
Petition contained, or incorporated by attachment, the full feature of the Filipino constitutional system. It was born out shall be judged by posterity. Ten years, fifty years, a hundred
text of the proposed changes. of our world-admired and often-imitated People Power, years -- or even a thousand years -- from now, what the
but its misuse and abuse must be resolutely rejected. Court did here, and how each justice opined and voted, will
Democracy must be cherished, but mob rule vanquished. still be talked about, either in shame or in pride. Indeed, the
So, too, a remand is futile. Even if the required
hand-washing of Pontius Pilate, the abomination of Dred
percentages are proven before the Commission, the
Scott, and the loathing of Javellana still linger and haunt to
Petition must still be dismissed for proposing a revision, The Constitution is a sacred social compact, forged
this day.
not an amendment, in gross violation of the between the government and the people, between each
Constitution. At the very least, it proposes more than one individual and the rest of the citizenry. Through it, the people
subject, in violation of Republic Act 6735. have solemnly expressed their will that all of them shall be Let not this case fall into the same damnation. Rather, let
governed by laws, and their rights limited by agreed-upon this Court be known throughout the nation and the world for
covenants to promote the common good. If we are to uphold its independence, integrity, industry and intelligence.
Summation
the Rule of Law and reject the rule of the mob, we must
faithfully abide by the processes the Constitution has
WHEREFORE, I vote to DISMISS the Petition.
Petitioners plead with this Court to hear the voice of the ordained in order to bring about a peaceful, just and
people because, in the words of Justice Puno who supports humane society. Assuming arguendo that six million people
them, the "people's voice is sovereign in a democracy." allegedly gave their assent to the proposed changes in the G.R. No. 122156 February 3, 1997
Constitution, they are nevertheless still bound by the
social covenant -- the present Constitution -- which was
I, too, believe in heeding the people's voice. I reiterate my MANILA PRINCE HOTEL petitioner,
ratified by a far greater majority almost twenty years ago. 14 I
Separate Opinion in PIRMA that "initiative is a democratic do not denigrate the majesty of the sovereign will; rather, I vs.
method of enabling our people to express their will and chart GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA
elevate our society to the loftiest perch, because our
their history. x x x. I believe that Filipinos have the ability and government must remain as one of laws and not of men. HOTEL CORPORATION, COMMITTEE ON
the capacity to rise above themselves, to use this right of PRIVATIZATION and OFFICE OF THE GOVERNMENT
initiative wisely and maturely, and to choose what is best for CORPORATE COUNSEL, respondents.
themselves and their posterity." Upon assuming office, each of the justices of the Supreme
Court took a solemn oath to uphold the Constitution. Being
the protectors of the fundamental law as the highest
This belief will not, however, automatically and blindly result BELLOSILLO, J.:
expression of the sovereign will, they must subject to the
in an initiative to change the Constitution, because the strictest scrutiny any attempt to change it, lest it be
present Petition violates the following: trivialized and degraded by the assaults of the mob and The FiIipino First Policy enshrined in the 1987
of ill-conceived designs. The Court must single- Constitution, i.e., in the grant of rights, privileges, and
· The Constitution (specifically Article XVII, which allows mindedly defend the Constitution from bogus concessions covering the national economy and patrimony,
only amendments, not revisions, and requires definite efforts falsely attributed to the sovereign people. the State shall give preference to qualified Filipinos,1 is in
percentages of verified signatures) oked by petitioner in its bid to acquire 51% of the shares of
The judiciary may be the weakest branch of government. the Manila Hotel Corporation (MHC) which owns the historic
Manila Hotel. Opposing, respondents maintain that the
· The law (specifically, Republic Act 6735, which prohibits Nonetheless, when ranged against incessant voices from the
more powerful branches of government, it should never provision is not self-executing but requires an implementing
petitions containing more than one subject)
cower in submission. On the other hand, I daresay that the legislation for its enforcement. Corollarily, they ask whether
the 51% shares form part of the national economy and
same weakness of the Court becomes its strength when it
· Jurisprudence (specifically, PIRMA v. Comelec, which speaks independently through decisions that rightfully patrimony covered by the protective mantle of the
dismissed the Petition then under consideration on the uphold the supremacy of the Constitution and the Rule of Constitution.
ground that, by following the Santiago ruling, the Comelec Law. The strength of the judiciary lies not in its lack of brute
had not gravely abused its discretion). power, but in its moral courage to perform its constitutional The controversy arose when respondent Government
duty at all times against all odds. Its might is in its being Service Insurance System (GSIS), pursuant to the
I submit further that a remand of the Lambino Petition is both right.15 privatization program of the Philippine Government under
imprudent and futile. More tellingly, it is a cop-out, a hand- Proclamation No. 50 dated 8 December 1986, decided to sell
washing already discredited 2000 years ago. Instead of During the past weeks, media outfits have been ablaze with through public bidding 30% to 51% of the issued and
finger-pointing, I believe we must confront the issues head outstanding shares of respondent MHC. The winning bidder,
reports and innuendoes about alleged carrots offered and
on, because the people expect no less from this august and sticks drawn by those interested in the outcome of this or the eventual "strategic partner," is to provide management
venerable institution of supreme justice. case.16 There being no judicial proof of these allegations, I expertise and/or an international marketing/reservation
system, and financial support to strengthen the profitability
shall not comment on them for the nonce, except to quote
the Good Book, which says, "There is nothing hidden that and performance of the Manila Hotel.2 In a close bidding held
Epilogue
will not be revealed, and nothing secret that will not be on 18 September 1995 only two (2) bidders participated:
petitioner Manila Prince Hotel Corporation, a Filipino
known and come to light."17
corporation, which offered to buy 51% of the MHC or
15,300,000 shares at P41.58 per share, and Renong
Berhad, a Malaysian firm, with ITT-Sheraton as its hotel a. Execution of the GSIS, a government-owned and controlled corporation, the
operator, which bid for the same number of shares at P44.00 necessary contracts hotel business of respondent GSIS being a part of the
per share, or P2.42 more than the bid of petitioner. with GSIS/MHC not tourism industry is unquestionably a part of the national
later than October economy. Thus, any transaction involving 51% of the shares
23, 1995 (reset to of stock of the MHC is clearly covered by the term national
Pertinent provisions of the bidding rules prepared by
November 3, 1995); economy, to which Sec. 10, second par., Art. XII, 1987
respondent GSIS state —
and Constitution, applies.7

I. EXECUTION OF
b. Requisite It is also the thesis of petitioner that since Manila Hotel is
THE NECESSARY
approvals from the part of the national patrimony and its business also
CONTRACTS
GSIS/MHC and unquestionably part of the national economy petitioner
WITH GSIS/MHC
COP (Committee on should be preferred after it has matched the bid offer of the

Privatization)/OGC Malaysian firm. For the bidding rules mandate that if for any
C (Office of the reason, the Highest Bidder cannot be awarded the Block of
1. The Highest Bidder must comply with Government Shares, GSIS may offer this to the other Qualified Bidders
the conditions set forth below by Corporate Counsel) that have validly submitted bids provided that these Qualified
October 23, 1995 (reset to November 3, are obtained.3 Bidders are willing to match the highest bid in terms of price
1995) or the Highest Bidder will lose the per share.8
right to purchase the Block of Shares
Pending the declaration of Renong Berhad as the winning
and GSIS will instead offer the Block of
bidder/strategic partner and the execution of the necessary Respondents except. They maintain that: First, Sec. 10,
Shares to the other Qualified Bidders:
contracts, petitioner in a letter to respondent GSIS dated 28 second par., Art. XII, of the 1987 Constitution is merely a
September 1995 matched the bid price of P44.00 per share statement of principle and policy since it is not a self-
a. The Highest tendered by Renong Berhad.4 In a subsequent letter dated executing provision and requires implementing legislation(s)
Bidder must 10 October 1995 petitioner sent a manager's check issued . . . Thus, for the said provision to Operate, there must be
negotiate and by Philtrust Bank for Thirty-three Million Pesos existing laws "to lay down conditions under which business
execute with the (P33.000.000.00) as Bid Security to match the bid of the may be done."9
GSIS/MHC the Malaysian Group, Messrs. Renong Berhad . . .5 which
Management respondent GSIS refused to accept.
Second, granting that this provision is self-executing, Manila
Contract,
Hotel does not fall under the term national patrimony which
International
On 17 October 1995, perhaps apprehensive that respondent only refers to lands of the public domain, waters, minerals,
Marketing/Reservati
GSIS has disregarded the tender of the matching bid and coal, petroleum and other mineral oils, all forces of potential
on System Contract
that the sale of 51% of the MHC may be hastened by energy, fisheries, forests or timber, wildlife, flora and fauna
or other type of
respondent GSIS and consummated with Renong Berhad, and all marine wealth in its territorial sea, and exclusive
contract specified
petitioner came to this Court on prohibition and mandamus. marine zone as cited in the first and second paragraphs of
by the Highest
On 18 October 1995 the Court issued a temporary Sec. 2, Art. XII, 1987 Constitution. According to respondents,
Bidder in its
restraining order enjoining respondents from perfecting and while petitioner speaks of the guests who have slept in the
strategic plan for
consummating the sale to the Malaysian firm. hotel and the events that have transpired therein which make
the Manila Hotel. . .
the hotel historic, these alone do not make the hotel fall
.
under the patrimony of the nation. What is more, the
On 10 September 1996 the instant case was accepted by
mandate of the Constitution is addressed to the State, not to
the Court En Banc after it was referred to it by the First
b. The Highest respondent GSIS which possesses a personality of its own
Division. The case was then set for oral arguments with
Bidder must separate and distinct from the Philippines as a State.
former Chief Justice Enrique M. Fernando and Fr. Joaquin
execute the Stock
G. Bernas, S.J., as amici curiae.
Purchase and Sale
Third, granting that the Manila Hotel forms part of
Agreement with
the national patrimony, the constitutional provision invoked is
GSIS . . . . In the main, petitioner invokes Sec. 10, second par., Art. XII,
still inapplicable since what is being sold is only 51% of the
of the 1987 Constitution and submits that the Manila
outstanding shares of the corporation, not the hotel building
Hotel has been identified with the Filipino nation and has
K. DECLARATION nor the land upon which the building stands. Certainly, 51%
practically become a historical monument which reflects the
OF THE WINNING of the equity of the MHC cannot be considered part of
vibrancy of Philippine heritage and culture. It is a proud
BIDDER/STRATEG the national patrimony. Moreover, if the disposition of the
legacy of an earlier generation of Filipinos who believed in
IC PARTNER — shares of the MHC is really contrary to the Constitution,
the nobility and sacredness of independence and its power
petitioner should have questioned it right from the beginning
and capacity to release the full potential of the Filipino
and not after it had lost in the bidding.
The Highest Bidder will be declared the people. To all intents and purposes, it has become a part of
Winning Bidder/Strategic Partner after the national patrimony.6 Petitioner also argues that since
the following conditions are met: 51% of the shares of the MHC carries with it the ownership Fourth, the reliance by petitioner on par. V., subpar. J. 1., of
of the business of the hotel which is owned by respondent the bidding rules which provides that if for any reason, the
Highest Bidder cannot be awarded the Block of Shares, grants may be enjoyed or protected, is self-executing. Thus preference to
GSIS may offer this to the other Qualified Bidders that have a constitutional provision is self-executing if the nature and qualified
validly submitted bids provided that these Qualified Bidders extent of the right conferred and the liability imposed are Filipinos vis-a-
are willing to match the highest bid in terms of price per fixed by the constitution itself, so that they can be vis Filipinos who are
share, is misplaced. Respondents postulate that the privilege determined by an examination and construction of its terms, not qualified. So,
of submitting a matching bid has not yet arisen since it only and there is no language indicating that the subject is why do we not
takes place if for any reason, the Highest Bidder cannot be referred to the legislature for action. 13 make it clear? To
awarded the Block of Shares. Thus the submission by qualified Filipinos as
petitioner of a matching bid is premature since Renong against aliens?
As against constitutions of the past, modern constitutions
Berhad could still very well be awarded the block of shares
have been generally drafted upon a different principle and
and the condition giving rise to the exercise of the privilege
have often become in effect extensive codes of laws THE PRESIDENT.
to submit a matching bid had not yet taken place.
intended to operate directly upon the people in a manner What is the
similar to that of statutory enactments, and the function of question of
Finally, the prayer for prohibition grounded on grave abuse constitutional conventions has evolved into one more like Commissioner
of discretion should fail since respondent GSIS did not that of a legislative body. Hence, unless it is expressly Rodrigo? Is it to
exercise its discretion in a capricious, whimsical manner, and provided that a legislative act is necessary to enforce a remove the word
if ever it did abuse its discretion it was not so patent and constitutional mandate, the presumption now is that all "QUALIFIED?".
gross as to amount to an evasion of a positive duty or a provisions of the constitution are self-executing If the
virtual refusal to perform a duty enjoined by law. Similarly, constitutional provisions are treated as requiring legislation
MR. RODRIGO. No,
the petition for mandamus should fail as petitioner has no instead of self-executing, the legislature would have the
no, but say
clear legal right to what it demands and respondents do not power to ignore and practically nullify the mandate of the
definitely "TO
have an imperative duty to perform the act required of them fundamental law.14 This can be cataclysmic. That is why the
QUALIFIED
by petitioner. prevailing view is, as it has always been, that —
FILIPINOS" as
against whom? As
We now resolve. A constitution is a system of fundamental . . . in case of doubt, the Constitution against aliens or
laws for the governance and administration of a nation. It is should be considered self-executing over aliens?
supreme, imperious, absolute and unalterable except by the rather than non-self-executing . . . .
authority from which it emanates. It has been defined as Unless the contrary is clearly intended,
MR. NOLLEDO.
the fundamental and paramount law of the nation. 10 It the provisions of the Constitution should
Madam President, I
prescribes the permanent framework of a system of be considered self-executing, as a
think that is
government, assigns to the different departments their contrary rule would give the legislature
understood. We use
respective powers and duties, and establishes certain fixed discretion to determine when, or
the word
principles on which government is founded. The fundamental whether, they shall be effective. These
"QUALIFIED"
conception in other words is that it is a supreme law to which provisions would be subordinated to the
because
all other laws must conform and in accordance with which all will of the lawmaking body, which could
the existing laws or
private rights must be determined and all public authority make them entirely meaningless by
prospective laws
administered. 11 Under the doctrine of constitutional simply refusing to pass the needed
will always lay down
supremacy, if a law or contract violates any norm of the implementing statute. 15
conditions under
constitution that law or contract whether promulgated by the
which business may
legislative or by the executive branch or entered into by
Respondents argue that Sec. 10, second par., Art. XII, of the be done. For
private persons for private purposes is null and void and
1987 Constitution is clearly not self-executing, as they quote example,
without any force and effect. Thus, since the Constitution is
from discussions on the floor of the 1986 Constitutional qualifications on the
the fundamental, paramount and supreme law of the nation,
Commission — setting up of other
it is deemed written in every statute and contract.
financial structures,
et cetera (emphasis
MR. RODRIGO.
Admittedly, some constitutions are merely declarations of supplied by
Madam President, I
policies and principles. Their provisions command the respondents)
am asking this
legislature to enact laws and carry out the purposes of the
question as the
framers who merely establish an outline of government
Chairman of the MR. RODRIGO. It is
providing for the different departments of the governmental
Committee on Style. just a matter of
machinery and securing certain fundamental and inalienable
If the wording of style.
rights of citizens. 12 A provision which lays down a general
"PREFERENCE" is
principle, such as those found in Art. II of the 1987
given to
Constitution, is usually not self-executing. But a provision MR. NOLLEDO
QUALIFIED
which is complete in itself and becomes operative without Yes, 16
FILIPINOS," can it
the aid of supplementary or enabling legislation, or that
be understood as a
which supplies sufficient rule by means of which the right it
Quite apparently, Sec. 10, second par., of Art XII is couched of the youth in nation-building 23 the promotion of social Manila Hotel has become a landmark — a living testimonial
in such a way as not to make it appear that it is non-self- justice, 24 and the values of education. 25 Tolentino of Philippine heritage. While it was restrictively an American
executing but simply for purposes of style. But, certainly, the v. Secretary of Finance 26 refers to the constitutional hotel when it first opened in 1912, it immediately evolved to
legislature is not precluded from enacting other further laws provisions on social justice and human rights 27 and on be truly Filipino, Formerly a concourse for the elite, it has
to enforce the constitutional provision so long as the education. 28 Lastly, Kilosbayan, Inc. v. Morato 29 cites since then become the venue of various significant events
contemplated statute squares with the Constitution. Minor provisions on the promotion of general welfare, 30 the which have shaped Philippine history. It was called
details may be left to the legislature without impairing the sanctity of family life, 31 the vital role of the youth in nation- the Cultural Center of the 1930's. It was the site of the
self-executing nature of constitutional provisions. building 32 and the promotion of total human liberation and festivities during the inauguration of the Philippine
development. 33A reading of these provisions indeed clearly Commonwealth. Dubbed as the Official Guest House of the
shows that they are not judicially enforceable constitutional Philippine Government. it plays host to dignitaries and official
In self-executing constitutional provisions, the legislature
rights but merely guidelines for legislation. The very terms of visitors who are accorded the traditional Philippine
may still enact legislation to facilitate the exercise of powers
the provisions manifest that they are only principles upon hospitality. 36
directly granted by the constitution, further the operation of
which the legislations must be based. Res ipsa loquitur.
such a provision, prescribe a practice to be used for its
enforcement, provide a convenient remedy for the protection The history of the hotel has been chronicled in the book The
of the rights secured or the determination thereof, or place On the other hand, Sec. 10, second par., Art. XII of the of the Manila Hotel: The Heart and Memory of a City. 37During
reasonable safeguards around the exercise of the right. The 1987 Constitution is a mandatory, positive command which World War II the hotel was converted by the Japanese
mere fact that legislation may supplement and add to or is complete in itself and which needs no further guidelines or Military Administration into a military headquarters. When the
prescribe a penalty for the violation of a self-executing implementing laws or rules for its enforcement. From its very American forces returned to recapture Manila the hotel was
constitutional provision does not render such a provision words the provision does not require any legislation to put it selected by the Japanese together with Intramuros as the
ineffective in the absence of such legislation. The omission in operation. It is per se judicially enforceable When our two (2) places fro their final stand. Thereafter, in the 1950's
from a constitution of any express provision for a remedy for Constitution mandates that [i]n the grant of rights, privileges, and 1960's, the hotel became the center of political activities,
enforcing a right or liability is not necessarily an indication and concessions covering national economy and patrimony, playing host to almost every political convention. In 1970 the
that it was not intended to be self-executing. The rule is that the State shall give preference to qualified Filipinos, it means hotel reopened after a renovation and reaped numerous
a self-executing provision of the constitution does not just that — qualified Filipinos shall be preferred. And when international recognitions, an acknowledgment of the Filipino
necessarily exhaust legislative power on the subject, but any our Constitution declares that a right exists in certain talent and ingenuity. In 1986 the hotel was the site of a
legislation must be in harmony with the constitution, further specified circumstances an action may be maintained to failed coup d' etat where an aspirant for vice-president was
the exercise of constitutional right and make it more enforce such right notwithstanding the absence of any "proclaimed" President of the Philippine Republic.
available. 17 Subsequent legislation however does not legislation on the subject; consequently, if there is no statute
necessarily mean that the subject constitutional provision is especially enacted to enforce such constitutional right, such
For more than eight (8) decades Manila Hotel has bore mute
not, by itself, fully enforceable. right enforces itself by its own inherent potency and
witness to the triumphs and failures, loves and frustrations of
puissance, and from which all legislations must take their
the Filipinos; its existence is impressed with public interest;
bearings. Where there is a right there is a remedy. Ubi jus ibi
Respondents also argue that the non-self-executing nature its own historicity associated with our struggle for
remedium.
of Sec. 10, second par., of Art. XII is implied from the tenor sovereignty, independence and nationhood. Verily, Manila
of the first and third paragraphs of the same section which Hotel has become part of our national economy and
undoubtedly are not self-executing. 18 The argument is As regards our national patrimony, a member of the 1986 patrimony. For sure, 51% of the equity of the MHC comes
flawed. If the first and third paragraphs are not self-executing Constitutional Commission 34 explains — within the purview of the constitutional shelter for it
because Congress is still to enact measures to encourage comprises the majority and controlling stock, so that anyone
the formation and operation of enterprises fully owned by who acquires or owns the 51% will have actual control and
The patrimony of the Nation that should
Filipinos, as in the first paragraph, and the State still needs management of the hotel. In this instance, 51% of the MHC
be conserved and developed refers not
legislation to regulate and exercise authority over foreign cannot be disassociated from the hotel and the land on
only to out rich natural resources but
investments within its national jurisdiction, as in the third which the hotel edifice stands. Consequently, we cannot
also to the cultural heritage of out race.
paragraph, then a fortiori, by the same logic, the second sustain respondents' claim that the Filipino First
It also refers to our intelligence in arts,
paragraph can only be self-executing as it does not by its Policy provision is not applicable since what is being sold is
sciences and letters. Therefore, we
language require any legislation in order to give preference only 51% of the outstanding shares of the corporation, not
should develop not only our lands,
to qualified Filipinos in the grant of rights, privileges and the Hotel building nor the land upon which the building
forests, mines and other natural
concessions covering the national economy and patrimony. stands. 38
resources but also the mental ability or
A constitutional provision may be self-executing in one part
faculty of our people.
and non-self-executing in another. 19
The argument is pure sophistry. The term qualified
Filipinos as used in Our Constitution also includes
We agree. In its plain and ordinary meaning, the term
Even the cases cited by respondents holding that certain corporations at least 60% of which is owned by Filipinos.
patrimony pertains to heritage. 35 When the Constitution
constitutional provisions are merely statements of principles This is very clear from the proceedings of the 1986
speaks of national patrimony, it refers not only to the natural
and policies, which are basically not self-executing and only Constitutional Commission
resources of the Philippines, as the Constitution could have
placed in the Constitution as moral incentives to legislation,
very well used the term natural resources, but also to
not as judicially enforceable rights — are simply not in
the cultural heritage of the Filipinos. THE PRESIDENT.
point. Basco v. Philippine Amusements and Gaming
Commissioner
Corporation 20 speaks of constitutional provisions on
personal dignity, 21 the sanctity of family life, 22 the vital role
Davide is MR. DAVIDE. Is individual Filipinos
recognized. that the intention? but also Filipino-
controlled entities or
entities fully-
MR. DAVIDE. I MR. MONSOD.
controlled by
would like to Yes, because, in
Filipinos. 40
introduce an fact, we would be
amendment to the limiting it if we say
Nolledo that the preference The phrase preference to qualified Filipinos was
amendment. And should only be 100- explained thus —
the amendment percent Filipino.
would consist in
MR. FOZ. Madam
substituting the
MR: DAVIDE. I President, I would
words "QUALIFIED
want to get that like to request
FILIPINOS" with the
meaning clear Commissioner
following:
because Nolledo to please
"CITIZENS OF THE
"QUALIFIED restate his
PHILIPPINES OR
FILIPINOS" may amendment so that
CORPORATIONS
refer only to I can ask a
OR
individuals and not question.
ASSOCIATIONS
to juridical
WHOSE CAPITAL
personalities or
OR CONTROLLING MR. NOLLEDO. "IN
entities.
STOCK IS THE GRANT OF
WHOLLY OWNED RIGHTS,
BY SUCH MR. MONSOD. We PRIVILEGES AND
CITIZENS. agree, Madam CONCESSIONS
President. 39 COVERING THE
NATIONAL
xxx xxx xxx
ECONOMY AND
xxx xxx xxx
PATRIMONY, THE
MR. MONSOD. STATE SHALL
Madam President, MR. RODRIGO. GIVE
apparently the Before we vote, PREFERENCE TO
proponent is may I request that QUALIFIED
agreeable, but we the amendment be FILIPINOS."
have to raise a read again.
question. Suppose
MR FOZ. In
it is a corporation
MR. NOLLEDO. connection with that
that is 80-percent
The amendment will amendment, if a
Filipino, do we not
read: "IN THE foreign enterprise is
give it preference?
GRANT OF qualified and a
RIGHTS, Filipino enterprise is
MR. DAVIDE. The PRIVILEGES AND also qualified, will
Nolledo amendment CONCESSIONS the Filipino
would refer to an COVERING THE enterprise still be
individual Filipino. NATIONAL given a preference?
What about a ECONOMY AND
corporation wholly PATRIMONY, THE
MR. NOLLEDO.
owned by Filipino STATE SHALL
Obviously.
citizens? GIVE
PREFERENCE TO
QUALIFIED MR. FOZ. If the
MR. MONSOD. At
FILIPINOS." And foreigner is more
least 60 percent,
the word "Filipinos" qualified in some
Madam President.
here, as intended aspects than the
by the proponents, Filipino enterprise,
will include not only
will the Filipino still Lastly, the word qualified is also determinable. Petitioner was function;" (2) when the government is so significantly
be preferred? so considered by respondent GSIS and selected as one of involved with the private actor as to make the government
the qualified bidders. It was pre-qualified by respondent responsible for his action; and, (3) when the government has
GSIS in accordance with its own guidelines so that the sole approved or authorized the action. It is evident that the act of
MR. NOLLEDO.
inference here is that petitioner has been found to be respondent GSIS in selling 51% of its share in respondent
The answer is "yes."
possessed of proven management expertise in the hotel MHC comes under the second and third categories of "state
industry, or it has significant equity ownership in another action." Without doubt therefore the transaction. although
MR. FOZ. Thank hotel company, or it has an overall management and entered into by respondent GSIS, is in fact a transaction of
you, 41 marketing proficiency to successfully operate the Manila the State and therefore subject to the constitutional
Hotel. 44 command. 46
Expounding further on the Filipino First Policy provision
Commissioner Nolledo continues — The penchant to try to whittle away the mandate of the When the Constitution addresses the State it refers not only
Constitution by arguing that the subject provision is not self- to the people but also to the government as elements of the
executory and requires implementing legislation is quite State. After all, government is composed of three (3)
MR. NOLLEDO. Yes, Madam President. disturbing. The attempt to violate a clear constitutional divisions of power — legislative, executive and judicial.
Instead of "MUST," it will be "SHALL — provision — by the government itself — is only too Accordingly, a constitutional mandate directed to the State is
THE STATE SHALL GlVE
distressing. To adopt such a line of reasoning is to renounce correspondingly directed to the three(3) branches of
PREFERENCE TO QUALIFIED the duty to ensure faithfulness to the Constitution. For, even government. It is undeniable that in this case the subject
FILIPINOS. This embodies the so-called some of the provisions of the Constitution which evidently constitutional injunction is addressed among others to the
"Filipino First" policy. That means that
need implementing legislation have juridical life of their own Executive Department and respondent GSIS, a government
Filipinos should be given preference in and can be the source of a judicial remedy. We cannot instrumentality deriving its authority from the State.
the grant of concessions, privileges and simply afford the government a defense that arises out of the
rights covering the national patrimony. 42
failure to enact further enabling, implementing or guiding
It should be stressed that while the Malaysian firm offered
legislation. In fine, the discourse of Fr. Joaquin G. Bernas,
the higher bid it is not yet the winning bidder. The bidding
The exchange of views in the sessions of the Constitutional S.J., on constitutional government is apt —
rules expressly provide that the highest bidder shall only be
Commission regarding the subject provision was still further
declared the winning bidder after it has negotiated and
clarified by Commissioner Nolledo 43 — The executive department has a executed the necessary contracts, and secured the requisite
constitutional duty to implement laws, approvals. Since the "Filipino First Policy provision of the
Paragraph 2 of Section 10 explicitly including the Constitution, even before Constitution bestows preference on qualified Filipinos the
mandates the "Pro-Filipino" bias in all Congress acts — provided that there are mere tending of the highest bid is not an assurance that the
economic concerns. It is better known discoverable legal standards for highest bidder will be declared the winning bidder.
as the FILIPINO FIRST Policy . . . This executive action. When the executive Resultantly, respondents are not bound to make the award
provision was never found in previous acts, it must be guided by its own yet, nor are they under obligation to enter into one with the
Constitutions . . . . understanding of the constitutional highest bidder. For in choosing the awardee respondents are
command and of applicable laws. The mandated to abide by the dictates of the 1987 Constitution
responsibility for reading and the provisions of which are presumed to be known to all the
The term "qualified Filipinos" simply understanding the Constitution and the bidders and other interested parties.
means that preference shall be given to laws is not the sole prerogative of
those citizens who can make a viable Congress. If it were, the executive would
contribution to the common good, Adhering to the doctrine of constitutional supremacy, the
have to ask Congress, or perhaps the
because of credible competence and subject constitutional provision is, as it should be, impliedly
Court, for an interpretation every time
efficiency. It certainly does NOT written in the bidding rules issued by respondent GSIS, lest
the executive is confronted by a
mandate the pampering and preferential the bidding rules be nullified for being violative of the
constitutional command. That is not how
treatment to Filipino citizens or Constitution. It is a basic principle in constitutional law that all
constitutional government operates. 45
organizations that are incompetent or laws and contracts must conform with the fundamental law of
inefficient, since such an indiscriminate the land. Those which violate the Constitution lose their
preference would be counter productive Respondents further argue that the constitutional provision is reason for being.
and inimical to the common good. addressed to the State, not to respondent GSIS which by
itself possesses a separate and distinct personality. This
Paragraph V. J. 1 of the bidding rules provides that [if] for
argument again is at best specious. It is undisputed that the
In the granting of economic rights, any reason the Highest Bidder cannot be awarded the Block
sale of 51% of the MHC could only be carried out with the
privileges, and concessions, when a of Shares, GSIS may offer this to other Qualified Bidders that
prior approval of the State acting through respondent
choice has to be made between a have validly submitted bids provided that these Qualified
Committee on Privatization. As correctly pointed out by Fr.
"qualified foreigner" end a "qualified Bidders are willing to match the highest bid in terms of price
Joaquin G. Bernas, S.J., this fact alone makes the sale of
Filipino," the latter shall be chosen over per
the assets of respondents GSIS and MHC a "state action." In
the former." share. 47 Certainly, the constitutional mandate itself is reason
constitutional jurisprudence, the acts of persons distinct from
enough not to award the block of shares immediately to the
the government are considered "state action" covered by the
foreign bidder notwithstanding its submission of a higher, or
Constitution (1) when the activity it engages in is a "public
even the highest, bid. In fact, we cannot conceive of a Constitution lays down the basic conditions and parameters they do not violate the Constitution or
stronger reason than the constitutional injunction itself. for its actions. the laws, or are not adopted or
implemented with grave abuse of
discretion amounting to lack or excess
In the instant case, where a foreign firm submits the highest Since petitioner has already matched the bid price tendered
of jurisdiction. It will never shirk that
bid in a public bidding concerning the grant of rights, by Renong Berhad pursuant to the bidding rules, respondent
duty, no matter how buffeted by winds of
privileges and concessions covering the national economy GSIS is left with no alternative but to award to petitioner the
unfair and ill-informed criticism. 48
and patrimony, thereby exceeding the bid of a Filipino, there block of shares of MHC and to execute the necessary
is no question that the Filipino will have to be allowed to agreements and documents to effect the sale in accordance
match the bid of the foreign entity. And if the Filipino not only with the bidding guidelines and procedures but with Privatization of a business asset for purposes of enhancing
matches the bid of a foreign firm the award should go to the the Constitution as well. The refusal of respondent GSIS to its business viability and preventing further losses,
Filipino. It must be so if we are to give life and meaning to execute the corresponding documents with petitioner as regardless of the character of the asset, should not take
the Filipino First Policy provision of the 1987 Constitution. provided in the bidding rules after the latter has matched the precedence over non-material values. A commercial, nay
For, while this may neither be expressly stated nor bid of the Malaysian firm clearly constitutes grave abuse of even a budgetary, objective should not be pursued at the
contemplated in the bidding rules, the constitutional fiat is, discretion. expense of national pride and dignity. For the Constitution
omnipresent to be simply disregarded. To ignore it would be enshrines higher and nobler non-material values. Indeed, the
to sanction a perilous skirting of the basic law. Court will always defer to the Constitution in the proper
The Filipino First Policy is a product of Philippine
governance of a free society; after all, there is nothing so
nationalism. It is embodied in the 1987 Constitution not
sacrosanct in any economic policy as to draw itself beyond
This Court does not discount the apprehension that this merely to be used as a guideline for future legislation but
judicial review when the Constitution is involved. 49
policy may discourage foreign investors. But the Constitution primarily to be enforced; so must it be enforced. This Court
and laws of the Philippines are understood to be always as the ultimate guardian of the Constitution will never shun,
open to public scrutiny. These are given factors which under any reasonable circumstance, the duty of upholding Nationalism is inherent, in the very concept of the Philippines
investors must consider when venturing into business in a the majesty of the Constitution which it is tasked to defend. It being a democratic and republican state, with sovereignty
foreign jurisdiction. Any person therefore desiring to do is worth emphasizing that it is not the intention of this Court residing in the Filipino people and from whom all government
business in the Philippines or with any of its agencies or to impede and diminish, much less undermine, the influx of authority emanates. In nationalism, the happiness and
instrumentalities is presumed to know his rights and foreign investments. Far from it, the Court encourages and welfare of the people must be the goal. The nation-state can
obligations under the Constitution and the laws of the forum. welcomes more business opportunities but avowedly have no higher purpose. Any interpretation of any
sanctions the preference for Filipinos whenever such constitutional provision must adhere to such basic concept.
preference is ordained by the Constitution. The position of Protection of foreign investments, while laudible, is merely a
The argument of respondents that petitioner is now estopped
the Court on this matter could have not been more policy. It cannot override the demands of nationalism. 50
from questioning the sale to Renong Berhad since petitioner
appropriately articulated by Chief Justice Narvasa —
was well aware from the beginning that a foreigner could
participate in the bidding is meritless. Undoubtedly, Filipinos The Manila Hotel or, for that matter, 51% of the MHC, is not
and foreigners alike were invited to the bidding. But As scrupulously as it has tried to just any commodity to be sold to the highest bidder solely for
foreigners may be awarded the sale only if no Filipino observe that it is not its function to the sake of privatization. We are not talking about an
qualifies, or if the qualified Filipino fails to match the highest substitute its judgment for that of the ordinary piece of property in a commercial district. We are
bid tendered by the foreign entity. In the case before us, legislature or the executive about the talking about a historic relic that has hosted many of the
while petitioner was already preferred at the inception of the wisdom and feasibility of legislation most important events in the short history of the Philippines
bidding because of the constitutional mandate, petitioner had economic in nature, the Supreme Court as a nation. We are talking about a hotel where heads of
not yet matched the bid offered by Renong Berhad. Thus it has not been spared criticism for states would prefer to be housed as a strong manifestation
did not have the right or personality then to compel decisions perceived as obstacles to of their desire to cloak the dignity of the highest state
respondent GSIS to accept its earlier bid. Rightly, only after it economic progress and development . . function to their official visits to the Philippines. Thus the
had matched the bid of the foreign firm and the apparent . in connection with a temporary Manila Hotel has played and continues to play a significant
disregard by respondent GSIS of petitioner's matching bid injunction issued by the Court's First role as an authentic repository of twentieth century Philippine
did the latter have a cause of action. Division against the sale of the Manila history and culture. In this sense, it has become truly a
Hotel to a Malaysian Firm and its reflection of the Filipino soul — a place with a history of
partner, certain statements were grandeur; a most historical setting that has played a part in
Besides, there is no time frame for invoking the constitutional
published in a major daily to the effect the shaping of a country. 51
safeguard unless perhaps the award has been finally made.
that injunction "again demonstrates that
To insist on selling the Manila Hotel to foreigners when there
the Philippine legal system can be a
is a Filipino group willing to match the bid of the foreign This Court cannot extract rhyme nor reason from the
major obstacle to doing business here.
group is to insist that government be treated as any other determined efforts of respondents to sell the historical
ordinary market player, and bound by its mistakes or gross landmark — this Grand Old Dame of hotels in Asia — to a
errors of judgment, regardless of the consequences to the Let it be stated for the record once again total stranger. For, indeed, the conveyance of this epic
Filipino people. The miscomprehension of the Constitution is that while it is no business of the Court exponent of the Filipino psyche to alien hands cannot be less
regrettable. Thus we would rather remedy the indiscretion to intervene in contracts of the kind than mephistophelian for it is, in whatever manner viewed, a
while there is still an opportunity to do so than let the referred to or set itself up as the judge of veritable alienation of a nation's soul for some pieces of
government develop the habit of forgetting that the whether they are viable or attainable, it foreign silver. And so we ask: What advantage, which cannot
is its bounden duty to make sure that be equally drawn from a qualified Filipino, can be gained by
the Filipinos Manila Hotel — and all that it stands for — is vs. x--------------------------------------------x
sold to a non-Filipino? How much of national pride will vanish THE GOVERNMENT OF THE REPUBLIC OF THE
if the nation's cultural heritage is entrusted to a foreign PHILIPPINES PEACE NEGOTIATING PANEL (GRP), as
G.R. No. 183962 October 14, 2008
entity? On the other hand, how much dignity will be represented by RODOLFO C. GARCIA, LEAH
preserved and realized if the national patrimony is safekept ARMAMENTO, SEDFREY CANDELARIA, MARK RYAN
in the hands of a qualified, zealous and well-meaning SULLIVAN and HERMOGENES ESPERON, in his ERNESTO M. MACEDA, JEJOMAR C. BINAY, and
Filipino? This is the plain and simple meaning of the Filipino capacity as the Presidential Adviser on Peace AQUILINO L. PIMENTEL III, petitioners,
First Policy provision of the Philippine Constitution. And this Process,respondents. vs.
Court, heeding the clarion call of the Constitution and THE GOVERNMENT OF THE REPUBLIC OF THE
accepting the duty of being the elderly watchman of the PHILIPPINES PEACE NEGOTIATING PANEL,
x--------------------------------------------x
nation, will continue to respect and protect the sanctity of the represented by its Chairman RODOLFO C. GARCIA, and
Constitution. the MORO ISLAMIC LIBERATION FRONT PEACE
G.R. No. 183893 October 14, 2008 NEGOTIATING PANEL, represented by its Chairman
MOHAGHER IQBAL, respondents.
WHEREFORE, respondents GOVERNMENT SERVICE
INSURANCE SYSTEM, MANILA HOTEL CORPORATION, THE CITY OF ILIGAN, duly represented by CITY MAYOR
COMMITTEE ON PRIVATIZATION and OFFICE OF THE LAWRENCE LLUCH CRUZ, petitioner, x--------------------------------------------x
GOVERNMENT CORPORATE COUNSEL are directed to vs.
CEASE and DESIST from selling 51% of the shares of the THE GOVERNMENT OF THE REPUBLIC OF THE
FRANKLIN M. DRILON and ADEL ABBAS
Manila Hotel Corporation to RENONG BERHAD, and to PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN
TAMANO, petitioners-in-intervention.
ACCEPT the matching bid of petitioner MANILA PRINCE (GRP), represented by SEC. RODOLFO GARCIA, ATTY.
HOTEL CORPORATION to purchase the subject 51% of the LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA,
shares of the Manila Hotel Corporation at P44.00 per share MARK RYAN SULLIVAN; GEN. HERMOGENES x--------------------------------------------x
and thereafter to execute the necessary clearances and to ESPERON, JR., in his capacity as the present and duly
do such other acts and deeds as may be necessary for appointed Presidential Adviser on the Peace Process;
purpose. and/or SEC. EDUARDO ERMITA, in his capacity as SEN. MANUEL A. ROXAS, petitioners-in-intervention.
Executive Secretary. respondents.
SO ORDERED. x--------------------------------------------x
x--------------------------------------------x
G.R. No. 183591 October 14, 2008 MUNICIPALITY OF LINAMON duly represented by its
Municipal Mayor NOEL N. DEANO, petitioners-in-
G.R. No. 183951 October 14, 2008
intervention,
THE PROVINCE OF NORTH COTABATO, duly
represented by GOVERNOR JESUS SACDALAN and/or THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL
VICE-GOVERNOR EMMANUEL PIÑOL, for and in his own NORTE, as represented by HON. ROLANDO E. YEBES, x--------------------------------------------x
behalf, petitioners, in his capacity as Provincial Governor, HON. FRANCIS
vs. H. OLVIS, in his capacity as Vice-Governor and THE CITY OF ISABELA, BASILAN PROVINCE,
THE GOVERNMENT OF THE REPUBLIC OF THE Presiding Officer of the Sangguniang Panlalawigan, represented by MAYOR CHERRYLYN P. SANTOS-
PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN HON. CECILIA JALOSJOS CARREON, Congresswoman, AKBAR,petitioners-in-intervention.
(GRP), represented by SEC. RODOLFO GARCIA, ATTY. 1st Congressional District, HON. CESAR G. JALOSJOS,
LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA, Congressman, 3rd Congressional District, and Members
MARK RYAN SULLIVAN and/or GEN. HERMOGENES of the Sangguniang Panlalawigan of the Province of x--------------------------------------------x
ESPERON, JR., the latter in his capacity as the present Zamboanga del Norte, namely, HON. SETH FREDERICK
and duly-appointed Presidential Adviser on the Peace P. JALOSJOS, HON. FERNANDO R. CABIGON, JR., HON. THE PROVINCE OF SULTAN KUDARAT, rep. by HON.
Process (OPAPP) or the so-called Office of the ULDARICO M. MEJORADA II, HON. EDIONAR M. SUHARTO T. MANGUDADATU, in his capacity as
Presidential Adviser on the Peace Process, respondents. ZAMORAS, HON. EDGAR J. BAGUIO, HON. CEDRIC L. Provincial Governor and a resident of the Province of
ADRIATICO, HON. FELIXBERTO C. BOLANDO, HON. Sultan Kudarat, petitioner-in-intervention.
JOSEPH BRENDO C. AJERO, HON. NORBIDEIRI B.
x--------------------------------------------x
EDDING, HON. ANECITO S. DARUNDAY, HON.
ANGELICA J. CARREON and HON. LUZVIMINDA E. x-------------------------------------------x
G.R. No. 183752 October 14, 2008 TORRINO, petitioners,
vs. RUY ELIAS LOPEZ, for and in his own behalf and on
THE GOVERNMENT OF THE REPUBLIC OF THE behalf of Indigenous Peoples in Mindanao Not
CITY GOVERNMENT OF ZAMBOANGA, as represented
PHILIPPINES PEACE NEGOTIATING PANEL [GRP], as Belonging to the MILF, petitioner-in-intervention.
by HON. CELSO L. LOBREGAT, City Mayor of
represented by HON. RODOLFO C. GARCIA and HON.
Zamboanga, and in his personal capacity as resident of
HERMOGENES ESPERON, in his capacity as the
the City of Zamboanga, Rep. MA. ISABELLE G. x--------------------------------------------x
Presidential Adviser of Peace Process, respondents.
CLIMACO, District 1, and Rep. ERICO BASILIO A.
FABIAN, District 2, City of Zamboanga, petitioners,
CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. The MILF is a rebel group which was established in March General Framework for the Resumption of Peace Talks
AWAT, JOSELITO C. ALISUAG and RICHALEX G. 1984 when, under the leadership of the late Salamat Between the GRP and the MILF. The MILF thereafter
JAGMIS, as citizens and residents of Hashim, it splintered from the Moro National Liberation Front suspended all its military actions.5
Palawan, petitioners-in-intervention. (MNLF) then headed by Nur Misuari, on the ground, among
others, of what Salamat perceived to be the manipulation of
Formal peace talks between the parties were held in Tripoli,
the MNLF away from an Islamic basis towards Marxist-
x--------------------------------------------x Libya from June 20-22, 2001, the outcome of which was the
Maoist orientations.1
GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement
2001) containing the basic principles and agenda on the
MARINO RIDAO and KISIN BUXANI, petitioners-in-
The signing of the MOA-AD between the GRP and the MILF following aspects of the
intervention.
was not to materialize, however, for upon motion of negotiation: Security Aspect, Rehabilitation Aspect,
petitioners, specifically those who filed their cases before the and Ancestral Domain Aspect. With regard to the Ancestral
x--------------------------------------------x scheduled signing of the MOA-AD, this Court issued a Domain Aspect, the parties in Tripoli Agreement 2001 simply
Temporary Restraining Order enjoining the GRP from agreed "that the same be discussed further by the Parties in
signing the same. their next meeting."
MUSLIM LEGAL ASSISTANCE FOUNDATION, INC
(MUSLAF), respondent-in-intervention.
The MOA-AD was preceded by a long process of negotiation A second round of peace talks was held in Cyberjaya,
and the concluding of several prior agreements between the Malaysia on August 5-7, 2001 which ended with the signing
x--------------------------------------------x two parties beginning in 1996, when the GRP-MILF peace of the Implementing Guidelines on the Security Aspect of the
negotiations began. On July 18, 1997, the GRP and MILF Tripoli Agreement 2001 leading to a ceasefire status
MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE & Peace Panels signed the Agreement on General Cessation between the parties. This was followed by the Implementing
DEVELOPMENT (MMMPD), respondent-in-intervention. of Hostilities. The following year, they signed the General Guidelines on the Humanitarian Rehabilitation and
Framework of Agreement of Intent on August 27, 1998. Development Aspects of the Tripoli Agreement 2001, which
was signed on May 7, 2002 at Putrajaya, Malaysia.
x--------------------------------------------x Nonetheless, there were many incidence of violence
The Solicitor General, who represents respondents,
between government forces and the MILF from 2002 to
summarizes the MOA-AD by stating that the same
DECISION 2003.
contained, among others, the commitment of the parties to
pursue peace negotiations, protect and respect human
CARPIO MORALES, J.: rights, negotiate with sincerity in the resolution and pacific Meanwhile, then MILF Chairman Salamat Hashim passed
settlement of the conflict, and refrain from the use of threat away on July 13, 2003 and he was replaced by Al Haj
or force to attain undue advantage while the peace Murad, who was then the chief peace negotiator of the MILF.
Subject of these consolidated cases is the extent of the negotiations on the substantive agenda are on-going.2 Murad's position as chief peace negotiator was taken over by
powers of the President in pursuing the peace Mohagher Iqbal.6
process.While the facts surrounding this controversy center
on the armed conflict in Mindanao between the government Early on, however, it was evident that there was not going to
and the Moro Islamic Liberation Front (MILF), the legal issue be any smooth sailing in the GRP-MILF peace process. In 2005, several exploratory talks were held between the
involved has a bearing on all areas in the country where Towards the end of 1999 up to early 2000, the MILF parties in Kuala Lumpur, eventually leading to the crafting of
there has been a long-standing armed conflict. Yet again, the attacked a number of municipalities in Central Mindanao the draft MOA-AD in its final form, which, as mentioned, was
Court is tasked to perform a delicate balancing act. It must and, in March 2000, it took control of the town hall of set to be signed last August 5, 2008.
uncompromisingly delineate the bounds within which the Kauswagan, Lanao del Norte.3 In response, then President
President may lawfully exercise her discretion, but it must do Joseph Estrada declared and carried out an "all-out-war"
II. STATEMENT OF THE PROCEEDINGS
so in strict adherence to the Constitution, lest its ruling against the MILF.
unduly restricts the freedom of action vested by that same
Constitution in the Chief Executive precisely to enable her to Before the Court is what is perhaps the most contentious
When President Gloria Macapagal-Arroyo assumed office,
pursue the peace process effectively. "consensus" ever embodied in an instrument - the MOA-AD
the military offensive against the MILF was suspended and
which is assailed principally by the present petitions bearing
the government sought a resumption of the peace talks. The
docket numbers 183591, 183752, 183893, 183951 and
I. FACTUAL ANTECEDENTS OF THE PETITIONS MILF, according to a leading MILF member, initially
183962.
responded with deep reservation, but when President Arroyo
asked the Government of Malaysia through Prime Minister
On August 5, 2008, the Government of the Republic of the Mahathir Mohammad to help convince the MILF to return to Commonly impleaded as respondents are the GRP Peace
Philippines (GRP) and the MILF, through the Chairpersons the negotiating table, the MILF convened its Central Panel on Ancestral Domain7 and the Presidential Adviser on
of their respective peace negotiating panels, were scheduled Committee to seriously discuss the matter and, eventually, the Peace Process (PAPP) Hermogenes Esperon, Jr.
to sign a Memorandum of Agreement on the Ancestral decided to meet with the GRP.4
Domain (MOA-AD) Aspect of the GRP-MILF Tripoli
Agreement on Peace of 2001 in Kuala Lumpur, Malaysia. On July 23, 2008, the Province of North Cotabato8 and Vice-
The parties met in Kuala Lumpur on March 24, 2001, with Governor Emmanuel Piñol filed a petition, docketed as G.R.
the talks being facilitated by the Malaysian government, the No. 183591, for Mandamus and Prohibition with Prayer for
parties signing on the same date the Agreement on the the Issuance of Writ of Preliminary Injunction and Temporary
Restraining Order.9 Invoking the right to information on Various parties moved to intervene and were granted leave and initiated the MOA vis-à-vis ISSUES Nos. 4
matters of public concern, petitioners seek to compel of court to file their petitions-/comments-in-intervention. and 5;
respondents to disclose and furnish them the complete and Petitioners-in-Intervention include Senator Manuel A. Roxas,
official copies of the MOA-AD including its attachments, and former Senate President Franklin Drilon and Atty. Adel
4. Whether there is a violation of the people's right
to prohibit the slated signing of the MOA-AD, pending the Tamano, the City of Isabela21 and Mayor Cherrylyn Santos-
to information on matters of public concern (1987
disclosure of the contents of the MOA-AD and the holding of Akbar, the Province of Sultan Kudarat22 and Gov. Suharto
Constitution, Article III, Sec. 7) under a state policy
a public consultation thereon. Supplementarily, petitioners Mangudadatu, the Municipality of Linamon in Lanao del
of full disclosure of all its transactions involving
pray that the MOA-AD be declared unconstitutional.10 Norte,23 Ruy Elias Lopez of Davao City and of the Bagobo
public interest (1987 Constitution, Article II, Sec.
tribe, Sangguniang Panlungsod member Marino Ridao and
28) including public consultation under Republic
businessman Kisin Buxani, both of Cotabato City; and
This initial petition was followed by another one, docketed Act No. 7160 (LOCAL GOVERNMENT CODE OF
lawyers Carlo Gomez, Gerardo Dilig, Nesario Awat, Joselito
as G.R. No. 183752, also for Mandamus and 1991)[;]
Alisuag, Richalex Jagmis, all of Palawan City. The Muslim
Prohibition11 filed by the City of Zamboanga,12 Mayor Celso
Legal Assistance Foundation, Inc. (Muslaf) and the Muslim
Lobregat, Rep. Ma. Isabelle Climaco and Rep. Erico Basilio
Multi-Sectoral Movement for Peace and Development If it is in the affirmative, whether prohibition under
Fabian who likewise pray for similar injunctive reliefs.
(MMMPD) filed their respective Comments-in-Intervention. Rule 65 of the 1997 Rules of Civil Procedure is an
Petitioners herein moreover pray that the City of Zamboanga
appropriate remedy;
be excluded from the Bangsamoro Homeland and/or
Bangsamoro Juridical Entity and, in the alternative, that the By subsequent Resolutions, the Court ordered the
MOA-AD be declared null and void. consolidation of the petitions. Respondents filed Comments 5. Whether by signing the MOA, the Government
on the petitions, while some of petitioners submitted their of the Republic of the Philippines would be
respective Replies. BINDING itself
By Resolution of August 4, 2008, the Court issued a
Temporary Restraining Order commanding and directing
public respondents and their agents to cease and desist from Respondents, by Manifestation and Motion of August 19, a) to create and recognize the
formally signing the MOA-AD.13 The Court also required the 2008, stated that the Executive Department shall thoroughly Bangsamoro Juridical Entity (BJE) as a
Solicitor General to submit to the Court and petitioners the review the MOA-AD and pursue further negotiations to separate state, or a juridical, territorial or
official copy of the final draft of the MOA-AD,14 to which she address the issues hurled against it, and thus moved to political subdivision not recognized by
complied.15 dismiss the cases. In the succeeding exchange of pleadings, law;
respondents' motion was met with vigorous opposition from
petitioners.
Meanwhile, the City of Iligan16 filed a petition for Injunction b) to revise or amend the Constitution
and/or Declaratory Relief, docketed as G.R. No. 183893, and existing laws to conform to the
praying that respondents be enjoined from signing the MOA- The cases were heard on oral argument on August 15, 22 MOA;
AD or, if the same had already been signed, from and 29, 2008 that tackled the following principal issues:
implementing the same, and that the MOA-AD be declared
unconstitutional. Petitioners herein additionally implead c) to concede to or recognize the claim
1. Whether the petitions have become moot and of the Moro Islamic Liberation Front for
Executive Secretary Eduardo Ermita as respondent.
academic ancestral domain in violation of Republic
Act No. 8371 (THE INDIGENOUS
The Province of Zamboanga del Norte,17 Governor Rolando PEOPLES RIGHTS ACT OF 1997),
(i) insofar as the mandamus aspect is
Yebes, Vice-Governor Francis Olvis, Rep. Cecilia Jalosjos- particularly Section 3(g) & Chapter VII
concerned, in view of the disclosure of
Carreon, Rep. Cesar Jalosjos, and the members 18 of the (DELINEATION, RECOGNITION OF
official copies of the final draft of the
Sangguniang Panlalawigan of Zamboanga del Norte filed on ANCESTRAL DOMAINS)[;]
Memorandum of Agreement (MOA); and
August 15, 2008 a petition for Certiorari, Mandamus and
Prohibition,19 docketed as G.R. No. 183951. They pray, inter
alia, that the MOA-AD be declared null and void and without If in the affirmative, whether the Executive Branch
(ii) insofar as the prohibition aspect
has the authority to so bind the Government of the
operative effect, and that respondents be enjoined from involving the Local Government Units is
executing the MOA-AD. Republic of the Philippines;
concerned, if it is considered that
consultation has become fait
accompli with the finalization of the draft; 6. Whether the inclusion/exclusion of the Province
On August 19, 2008, Ernesto Maceda, Jejomar Binay, and
Aquilino Pimentel III filed a petition for Prohibition, 20docketed of North Cotabato, Cities of Zamboanga, Iligan
as G.R. No. 183962, praying for a judgment prohibiting and and Isabela, and the Municipality of Linamon,
2. Whether the constitutionality and the legality of
Lanao del Norte in/from the areas covered by the
permanently enjoining respondents from formally signing and the MOA is ripe for adjudication;
executing the MOA-AD and or any other agreement derived projected Bangsamoro Homeland is a justiciable
therefrom or similar thereto, and nullifying the MOA-AD for question; and
3. Whether respondent Government of the
being unconstitutional and illegal. Petitioners
herein additionally implead as respondent the MILF Peace Republic of the Philippines Peace Panel
7. Whether desistance from signing the MOA
Negotiating Panel represented by its Chairman Mohagher committed grave abuse of discretion amounting to
derogates any prior valid commitments of the
lack or excess of jurisdiction when it negotiated
Iqbal. Government of the Republic of the Philippines.24
The Court, thereafter, ordered the parties to submit their Muslim territories. For instance, areas like dar-ul- The Bangsamoro people are acknowledged as having
respective Memoranda. Most of the parties submitted their mua'hada (land of compact) and dar-ul-sulh (land of treaty) the right to self-governance, which right is said to be rooted
memoranda on time. referred to countries which, though under a secular regime, on ancestral territoriality exercised originally under the
maintained peaceful and cooperative relations with Muslim suzerain authority of their sultanates and the Pat a
States, having been bound to each other by treaty or Pangampong ku Ranaw. The sultanates were described as
III. OVERVIEW OF THE MOA-AD
agreement. Dar-ul-aman (land of order), on the other hand, states or "karajaan/kadatuan" resembling a body politic
referred to countries which, though not bound by treaty with endowed with all the elements of a nation-state in the
As a necessary backdrop to the consideration of the Muslim States, maintained freedom of religion for Muslims.28 modern sense.34
objections raised in the subject five petitions and six
petitions-in-intervention against the MOA-AD, as well as the
It thus appears that the "compact rights entrenchment" The MOA-AD thus grounds the right to self-governance of
two comments-in-intervention in favor of the MOA-AD, the
emanating from the regime of dar-ul-mua'hada and dar-ul- the Bangsamoro people on the past suzerain authority of the
Court takes an overview of the MOA.
sulh simply refers to all other agreements between the MILF sultanates. As gathered, the territory defined as the
and the Philippine government - the Philippines being the Bangsamoro homeland was ruled by several sultanates and,
The MOA-AD identifies the Parties to it as the GRP and the land of compact and peace agreement - that partake of the specifically in the case of the Maranao, by the Pat a
MILF. nature of a treaty device, "treaty" being broadly defined as Pangampong ku Ranaw, a confederation of independent
"any solemn agreement in writing that sets out principalities (pangampong) each ruled by datus and sultans,
understandings, obligations, and benefits for both parties none of whom was supreme over the others.35
Under the heading "Terms of Reference" (TOR), the MOA- which provides for a framework that elaborates the principles
AD includes not only four earlier agreements between the declared in the [MOA-AD]."29
GRP and MILF, but also two agreements between the GRP The MOA-AD goes on to describe the Bangsamoro people
and the MNLF: the 1976 Tripoli Agreement, and the Final as "the ‘First Nation' with defined territory and with a system
Peace Agreement on the Implementation of the 1976 Tripoli The MOA-AD states that the Parties "HAVE AGREED AND of government having entered into treaties of amity and
Agreement, signed on September 2, 1996 during the ACKNOWLEDGED AS FOLLOWS," and starts with its main commerce with foreign nations."
administration of President Fidel Ramos. body.
The term "First Nation" is of Canadian origin referring to the
The MOA-AD also identifies as TOR two local statutes - the The main body of the MOA-AD is divided into four indigenous peoples of that territory, particularly those known
organic act for the Autonomous Region in Muslim Mindanao strands, namely, Concepts and Principles, Territory, as Indians. In Canada, each of these indigenous peoples is
(ARMM)25 and the Indigenous Peoples Rights Act Resources, and Governance. equally entitled to be called "First Nation," hence, all of them
(IPRA),26 and several international law instruments - the ILO are usually described collectively by the plural "First
Convention No. 169 Concerning Indigenous and Tribal Nations."36 To that extent, the MOA-AD, by identifying the
A. CONCEPTS AND PRINCIPLES
Peoples in Independent Countries in relation to the UN Bangsamoro people as "the First Nation" - suggesting its
Declaration on the Rights of the Indigenous Peoples, and the exclusive entitlement to that designation - departs from the
UN Charter, among others. This strand begins with the statement that it is "the birthright Canadian usage of the term.
of all Moros and all Indigenous peoples of Mindanao to
identify themselves and be accepted as ‘Bangsamoros.'" It
The MOA-AD includes as a final TOR the generic category The MOA-AD then mentions for the first time the
defines "Bangsamoro people" as the natives or original
of "compact rights entrenchment emanating from the regime "Bangsamoro Juridical Entity" (BJE) to which it grants the
inhabitants of Mindanao and its adjacent islands including
of dar-ul-mua'hada (or territory under compact) and dar-ul- authority and jurisdiction over the Ancestral Domain and
Palawan and the Sulu archipelago at the time of conquest or
sulh (or territory under peace agreement) that partakes the Ancestral Lands of the Bangsamoro.37
colonization, and their descendants whether mixed or of full
nature of a treaty device."
blood, including their spouses.30
B. TERRITORY
During the height of the Muslim Empire, early Muslim jurists
Thus, the concept of "Bangsamoro," as defined in this strand
tended to see the world through a simple dichotomy: there
of the MOA-AD, includes not only "Moros" as traditionally The territory of the Bangsamoro homeland is described as
was the dar-ul-Islam (the Abode of Islam) and dar-ul-
understood even by Muslims,31 but all indigenous peoples of the land mass as well as the maritime, terrestrial, fluvial and
harb (the Abode of War). The first referred to those lands
Mindanao and its adjacent islands. The MOA-AD adds that alluvial domains, including the aerial domain and the
where Islamic laws held sway, while the second denoted
the freedom of choice of indigenous peoples shall be atmospheric space above it, embracing the Mindanao-Sulu-
those lands where Muslims were persecuted or where
respected. What this freedom of choice consists in has not Palawan geographic region.38
Muslim laws were outlawed or ineffective.27 This way of
been specifically defined.
viewing the world, however, became more complex through
the centuries as the Islamic world became part of the More specifically, the core of the BJE is defined as the
international community of nations. The MOA-AD proceeds to refer to the "Bangsamoro present geographic area of the ARMM - thus constituting the
homeland," the ownership of which is vested exclusively in following areas: Lanao del Sur, Maguindanao, Sulu, Tawi-
the Bangsamoro people by virtue of their prior rights of Tawi, Basilan, and Marawi City. Significantly, this core
As Muslim States entered into treaties with their neighbors,
occupation.32 Both parties to the MOA-AD acknowledge also includes certain municipalities of Lanao del Norte that
even with distant States and inter-governmental
that ancestral domain does not form part of the public voted for inclusion in the ARMM in the 2001 plebiscite.39
organizations, the classical division of the world into dar-ul-
domain.33
Islam and dar-ul-harb eventually lost its meaning. New terms
were drawn up to describe novel ways of perceiving non-
Outside of this core, the BJE is to cover other provinces, environmental protection and equitable sharing of incomes defined powers and functions in the Comprehensive
cities, municipalities and barangays, which are grouped into and revenues involving the bodies of water adjacent to or Compact.
two categories, Category A and Category B. Each of these between the islands forming part of the ancestral domain. 47
areas is to be subjected to a plebiscite to be held on different
The MOA-AD provides that its provisions requiring
dates, years apart from each other. Thus, Category A areas
With regard to the right of exploring for, producing, and "amendments to the existing legal framework" shall take
are to be subjected to a plebiscite not later than twelve (12)
obtaining all potential sources of energy, petroleum, fossil effect upon signing of the Comprehensive Compact and
months following the signing of the MOA-AD.40 Category B
fuel, mineral oil and natural gas, the jurisdiction and control upon effecting the aforesaid amendments, with due regard to
areas, also called "Special Intervention Areas," on the other
thereon is to be vested in the BJE "as the party having the non-derogation of prior agreements and within the
hand, are to be subjected to a plebiscite twenty-five (25)
control within its territorial jurisdiction." This right carries stipulated timeframe to be contained in the Comprehensive
years from the signing of a separate agreement - the
the proviso that, "in times of national emergency, when Compact. As will be discussed later, much of the present
Comprehensive Compact.41
public interest so requires," the Central Government may, for controversy hangs on the legality of this provision.
a fixed period and under reasonable terms as may be
The Parties to the MOA-AD stipulate that the BJE shall have agreed upon by both Parties, assume or direct the operation
The BJE is granted the power to build, develop and maintain
jurisdiction over all natural resources within its of such resources.48
its own institutions inclusive of civil service, electoral,
"internalwaters," defined as extending fifteen (15) kilometers
financial and banking, education, legislation, legal,
from the coastline of the BJE area;42 that the BJE shall also
The sharing between the Central Government and the BJE economic, police and internal security force, judicial system
have "territorial waters," which shall stretch beyond the BJE
of total production pertaining to natural resources is to be and correctional institutions, the details of which shall be
internal waters up to the baselines of the Republic of the
75:25 in favor of the BJE.49 discussed in the negotiation of the comprehensive compact.
Philippines (RP) south east and south west of mainland
Mindanao; and that within these territorial waters, the BJE
and the "Central Government" (used interchangeably with The MOA-AD provides that legitimate grievances of the As stated early on, the MOA-AD was set to be signed on
RP) shall exercise joint jurisdiction, authority and Bangsamoro people arising from any unjust dispossession of August 5, 2008 by Rodolfo Garcia and Mohagher Iqbal,
management over all natural resources.43 Notably, the their territorial and proprietary rights, customary land Chairpersons of the Peace Negotiating Panels of the GRP
jurisdiction over the internal waters is not similarly described tenures, or their marginalization shall be acknowledged. and the MILF, respectively. Notably, the penultimate
as "joint." Whenever restoration is no longer possible, reparation is to paragraph of the MOA-AD identifies the signatories as "the
be in such form as mutually determined by the Parties.50 representatives of the Parties," meaning the GRP and MILF
themselves, and not merely of the negotiating panels.53 In
The MOA-AD further provides for the sharing of minerals on
addition, the signature page of the MOA-AD states that it is
the territorial waters between the Central Government and The BJE may modify or cancel the forest concessions,
"WITNESSED BY" Datuk Othman Bin Abd Razak, Special
the BJE, in favor of the latter, through production sharing and timber licenses, contracts or agreements, mining
Adviser to the Prime Minister of Malaysia, "ENDORSED BY"
economic cooperation agreement.44 The activities which the concessions, Mineral Production and Sharing Agreements
Ambassador Sayed Elmasry, Adviser to Organization of the
Parties are allowed to conduct on the territorial waters are (MPSA), Industrial Forest Management Agreements (IFMA),
Islamic Conference (OIC) Secretary General and Special
enumerated, among which are the exploration and utilization and other land tenure instruments granted by the Philippine
Envoy for Peace Process in Southern Philippines, and
of natural resources, regulation of shipping and fishing Government, including those issued by the present ARMM.51
SIGNED "IN THE PRESENCE OF" Dr. Albert G. Romulo,
activities, and the enforcement of police and safety
Secretary of Foreign Affairs of RP and Dato' Seri Utama Dr.
measures.45 There is no similar provision on the sharing of
D. GOVERNANCE Rais Bin Yatim, Minister of Foreign Affairs, Malaysia, all of
minerals and allowed activities with respect to
whom were scheduled to sign the Agreement last August 5,
the internal waters of the BJE.
2008.
The MOA-AD binds the Parties to invite a multinational third-
C. RESOURCES party to observe and monitor the implementation of
the Comprehensive Compact. This compact is to embody Annexed to the MOA-AD are two documents containing the
the "details for the effective enforcement" and "the respective lists cum maps of the provinces, municipalities,
The MOA-AD states that the BJE is free to enter into any mechanisms and modalities for the actual implementation" of and barangays under Categories A and B earlier mentioned
economic cooperation and trade relations with foreign the MOA-AD. The MOA-AD explicitly provides that the in the discussion on the strand on TERRITORY.
countries and shall have the option to establish trade participation of the third party shall not in any way affect the
missions in those countries. Such relationships and status of the relationship between the Central Government
IV. PROCEDURAL ISSUES
understandings, however, are not to include aggression and the BJE.52
against the GRP. The BJE may also enter into environmental
cooperation agreements.46 A. RIPENESS
The "associative" relationship
between the Central Government
The external defense of the BJE is to remain the duty and and the BJE The power of judicial review is limited to actual cases or
obligation of the Central Government. The Central controversies.54 Courts decline to issue advisory opinions or
Government is also bound to "take necessary steps to to resolve hypothetical or feigned problems, or mere
The MOA-AD describes the relationship of the Central
ensure the BJE's participation in international meetings and academic questions.55 The limitation of the power of judicial
events" like those of the ASEAN and the specialized Government and the BJE as "associative," characterized by
review to actual cases and controversies defines the role
agencies of the UN. The BJE is to be entitled to participate in shared authority and responsibility. And it states that the
assigned to the judiciary in a tripartite allocation of power, to
structure of governance is to be based on executive,
Philippine official missions and delegations for the assure that the courts will not intrude into areas committed to
legislative, judicial, and administrative institutions with
negotiation of border agreements or protocols for the other branches of government.56
An actual case or controversy involves a conflict of legal The Solicitor General cites63 the following provisions of the Concrete acts under the MOA-AD are not necessary to
rights, an assertion of opposite legal claims, susceptible of MOA-AD: render the present controversy ripe. In Pimentel, Jr. v.
judicial resolution as distinguished from a hypothetical or Aguirre,65 this Court held:
abstract difference or dispute. There must be a contrariety of
TERRITORY
legal rights that can be interpreted and enforced on the basis
x x x [B]y the mere enactment of the questioned
of existing law and jurisprudence.57 The Court can decide the
law or the approval of the challenged action, the
constitutionality of an act or treaty only when a proper case xxxx
dispute is said to have ripened into a judicial
between opposing parties is submitted for judicial
controversy even without any other overt act.
determination.58
2. Toward this end, the Parties enter into the Indeed, even a singular violation of the
following stipulations: Constitution and/or the law is enough to awaken
Related to the requirement of an actual case or controversy judicial duty.
is the requirement of ripeness. A question is ripe for
adjudication when the act being challenged has had a direct xxxx
xxxx
adverse effect on the individual challenging it.59 For a case to
be considered ripe for adjudication, it is a prerequisite that d. Without derogating from the requirements of
something had then been accomplished or performed by prior agreements, the Government stipulates to By the same token, when an act of the President,
either branch before a court may come into the picture,60 and conduct and deliver, using all possible legal who in our constitutional scheme is a coequal of
the petitioner must allege the existence of an immediate or measures, within twelve (12) months following the Congress, is seriously alleged to have infringed
threatened injury to itself as a result of the challenged signing of the MOA-AD, a plebiscite covering the the Constitution and the laws x x x settling the
action.61 He must show that he has sustained or is areas as enumerated in the list and depicted in the dispute becomes the duty and the responsibility of
immediately in danger of sustaining some direct injury as a map as Category A attached herein (the "Annex"). the courts.66
result of the act complained of.62 The Annex constitutes an integral part of this
framework agreement. Toward this end, the
In Santa Fe Independent School District v. Doe,67 the United
The Solicitor General argues that there is no justiciable Parties shall endeavor to complete the
States Supreme Court held that the challenge to the
controversy that is ripe for judicial review in the present negotiations and resolve all outstanding issues on
constitutionality of the school's policy allowing student-led
the Comprehensive Compact within fifteen (15)
petitions, reasoning that prayers and speeches before games was ripe for
months from the signing of the MOA-AD.
adjudication, even if no public prayer had yet been led under
the policy, because the policy was being challenged as
The unsigned MOA-AD is simply a list of
xxxx unconstitutional on its face.68
consensus points subject to further negotiations
and legislative enactments as well as
constitutional processes aimed at attaining a final GOVERNANCE That the law or act in question is not yet effective does not
peaceful agreement. Simply put, the MOA-AD negate ripeness. For example, in New York v. United
remains to be a proposal that does not States,69 decided in 1992, the United States Supreme Court
automatically create legally demandable rights and xxxx held that the action by the State of New York challenging the
obligations until the list of operative acts required provisions of the Low-Level Radioactive Waste Policy Act
have been duly complied with. x x x 7. The Parties agree that mechanisms and was ripe for adjudication even if the questioned provision
modalities for the actual implementation of this was not to take effect until January 1, 1996, because the
MOA-AD shall be spelt out in the Comprehensive parties agreed that New York had to take immediate action
xxxx
Compact to mutually take such steps to enable it to avoid the provision's consequences.70
to occur effectively.
In the cases at bar, it is respectfully submitted that
The present petitions pray for Certiorari,71 Prohibition, and
this Honorable Court has no authority to pass
Any provisions of the MOA-AD requiring Mandamus. Certiorari and Prohibition are remedies granted
upon issues based on hypothetical or feigned
amendments to the existing legal framework shall by law when any tribunal, board or officer has acted, in the
constitutional problems or interests with no
come into force upon the signing of a case of certiorari, or is proceeding, in the case of prohibition,
concrete bases. Considering
Comprehensive Compact and upon effecting the without or in excess of its jurisdiction or with grave abuse of
the preliminary character of the MOA-AD, there
necessary changes to the legal framework with discretion amounting to lack or excess of
are no concrete acts that could possibly violate
due regard to non-derogation of prior jurisdiction.72 Mandamus is a remedy granted by law when
petitioners' and intervenors' rights since the acts
agreements and within the stipulated timeframe to any tribunal, corporation, board, officer or person unlawfully
complained of are mere contemplated
be contained in the Comprehensive neglects the performance of an act which the law specifically
steps toward the formulation of a final peace
agreement. Plainly, petitioners and intervenors' Compact.64 (Underscoring supplied) enjoins as a duty resulting from an office, trust, or station, or
unlawfully excludes another from the use or enjoyment of a
perceived injury, if at all, is merely imaginary and
right or office to which such other is entitled. 73 Certiorari,
illusory apart from being unfounded and based on The Solicitor General's arguments fail to persuade. Mandamus and Prohibition are appropriate remedies to raise
mere conjectures. (Underscoring supplied)
constitutional issues and to review and/or prohibit/nullify,
when proper, acts of legislative and executive officials.74
The authority of the GRP Negotiating Panel is defined by privilege to which he is lawfully entitled or that he is about to In the petitions at bar, petitioners Province of North
Executive Order No. 3 (E.O. No. 3), issued on February 28, be subjected to some burdens or penalties by reason of the Cotabato (G.R. No. 183591) Province of Zamboanga del
2001.75 The said executive order requires that "[t]he statute or act complained of.80 When the issue concerns a Norte (G.R. No. 183951), City of Iligan (G.R. No. 183893)
government's policy framework for peace, including the public right, it is sufficient that the petitioner is a citizen and and City of Zamboanga (G.R. No. 183752) and petitioners-
systematic approach and the administrative structure for has an interest in the execution of the laws.81 in-intervention Province of Sultan Kudarat, City of
carrying out the comprehensive peace process x x x be Isabela and Municipality of Linamon have locus standi in
governed by this Executive Order."76 view of the direct and substantial injury that they, as LGUs,
For a taxpayer, one is allowed to sue where there is an
would suffer as their territories, whether in whole or in part,
assertion that public funds are illegally disbursed or deflected
are to be included in the intended domain of the BJE. These
The present petitions allege that respondents GRP Panel to an illegal purpose, or that there is a wastage of public
petitioners allege that they did not vote for their inclusion in
and PAPP Esperon drafted the terms of the MOA-AD without funds through the enforcement of an invalid or
the ARMM which would be expanded to form the BJE
consulting the local government units or communities unconstitutional law.82 The Court retains discretion whether
territory. Petitioners' legal standing is thus beyond doubt.
affected, nor informing them of the proceedings. As will be or not to allow a taxpayer's suit.83
discussed in greater detail later, such omission, by itself,
constitutes a departure by respondents from their mandate In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar
In the case of a legislator or member of Congress, an act of
under E.O. No. 3. Binay and Aquilino Pimentel III would have no standing as
the Executive that injures the institution of Congress causes
citizens and taxpayers for their failure to specify that they
a derivative but nonetheless substantial injury that can be
would be denied some right or privilege or there would be
Furthermore, the petitions allege that the provisions of the questioned by legislators. A member of the House of
wastage of public funds. The fact that they are a former
MOA-AD violate the Constitution. The MOA-AD provides that Representatives has standing to maintain inviolate the
Senator, an incumbent mayor of Makati City, and a resident
"any provisions of the MOA-AD requiring amendments to the prerogatives, powers and privileges vested by the
of Cagayan de Oro, respectively, is of no consequence.
existing legal framework shall come into force upon the Constitution in his office.84
Considering their invocation of the transcendental
signing of a Comprehensive Compact and upon effecting the
importance of the issues at hand, however, the Court grants
necessary changes to the legal framework," implying an
An organization may be granted standing to assert the rights them standing.
amendment of the Constitution to accommodate the MOA-
of its members,85 but the mere invocation by the Integrated
AD. This stipulation, in effect, guaranteed to the MILF the
Bar of the Philippines or any member of the legal
amendment of the Constitution. Such act constitutes another Intervenors Franklin Drilon and Adel Tamano, in alleging
profession of the duty to preserve the rule of law does not
violation of its authority. Again, these points will be discussed their standing as taxpayers, assert that government funds
suffice to clothe it with standing.86
in more detail later. would be expended for the conduct of an illegal and
unconstitutional plebiscite to delineate the BJE territory. On
As regards a local government unit (LGU), it can seek relief that score alone, they can be given legal standing. Their
As the petitions allege acts or omissions on the part of
in order to protect or vindicate an interest of its own, and of allegation that the issues involved in these petitions are of
respondent that exceed their authority, by violating their
the other LGUs.87 "undeniable transcendental importance" clothes them with
duties under E.O. No. 3 and the provisions of the
added basis for their personality to intervene in these
Constitution and statutes, the petitions make a prima
petitions.
facie case for Certiorari, Prohibition, and Mandamus, and an Intervenors, meanwhile, may be given legal standing upon
actual case or controversy ripe for adjudication exists. When showing of facts that satisfy the requirements of the law
an act of a branch of government is seriously alleged to authorizing intervention,88 such as a legal interest in the With regard to Senator Manuel Roxas, his standing is
have infringed the Constitution, it becomes not only the matter in litigation, or in the success of either of the parties. premised on his being a member of the Senate and a citizen
right but in fact the duty of the judiciary to settle the to enforce compliance by respondents of the public's
dispute.77 constitutional right to be informed of the MOA-AD, as well as
In any case, the Court has discretion to relax the procedural on a genuine legal interest in the matter in litigation, or in the
technicality on locus standi, given the liberal attitude it has
success or failure of either of the parties. He thus possesses
B. LOCUS STANDI exercised, highlighted in the case of David v. Macapagal- the requisite standing as an intervenor.
Arroyo,89 where technicalities of procedure were brushed
aside, the constitutional issues raised being of paramount
For a party to have locus standi, one must allege "such a
public interest or of transcendental importance deserving the With respect to Intervenors Ruy Elias Lopez, as a former
personal stake in the outcome of the controversy as to
attention of the Court in view of their seriousness, novelty congressman of the 3rd district of Davao City, a taxpayer and
assure that concrete adverseness which sharpens the
and weight as precedents.90 The Court's forbearing stance a member of the Bagobo tribe; Carlo B. Gomez, et al., as
presentation of issues upon which the court so largely
on locus standi on issues involving constitutional issues has members of the IBP Palawan chapter, citizens and
depends for illumination of difficult constitutional
for its purpose the protection of fundamental rights. taxpayers; Marino Ridao, as taxpayer, resident and member
questions."78
of the Sangguniang Panlungsod of Cotabato City; and Kisin
Buxani, as taxpayer, they failed to allege any proper legal
In not a few cases, the Court, in keeping with its duty under interest in the present petitions. Just the same, the Court
Because constitutional cases are often public actions in
the Constitution to determine whether the other branches of exercises its discretion to relax the procedural technicality
which the relief sought is likely to affect other persons, a
government have kept themselves within the limits of the
preliminary question frequently arises as to this interest in on locus standi given the paramount public interest in the
Constitution and the laws and have not abused the discretion
the constitutional question raised.79 issues at hand.
given them, has brushed aside technical rules of
procedure.91
When suing as a citizen, the person complaining must allege Intervening respondents Muslim Multi-Sectoral Movement
that he has been or is about to be denied some right or for Peace and Development, an advocacy group for justice
and the attainment of peace and prosperity in Muslim Contrary then to the asseverations of respondents, the non- The MOA-AD is part of a series of agreements
Mindanao; and Muslim Legal Assistance Foundation signing of the MOA-AD and the eventual dissolution of the
Inc., a non-government organization of Muslim lawyers, GRP Peace Panel did not moot the present petitions. It
In the present controversy, the MOA-AD is a significant
allege that they stand to be benefited or prejudiced, as the bears emphasis that the signing of the MOA-AD did not push
part of a series of agreements necessary to carry out the
case may be, in the resolution of the petitions concerning the through due to the Court's issuance of a Temporary
Tripoli Agreement 2001. The MOA-AD which dwells on
MOA-AD, and prays for the denial of the petitions on the Restraining Order.
the Ancestral Domain Aspect of said Tripoli Agreement is the
grounds therein stated. Such legal interest suffices to clothe
third such component to be undertaken following the
them with standing.
Contrary too to respondents' position, the MOA-AD cannot implementation of the Security Aspect in August 2001 and
be considered a mere "list of consensus points," especially the Humanitarian, Rehabilitation and Development Aspect in
B. MOOTNESS given its nomenclature, the need to have it signed or May 2002.
initialed by all the parties concerned on August 5, 2008, and
the far-reaching Constitutional implications of these
Respondents insist that the present petitions have been Accordingly, even if the Executive Secretary, in his
"consensus points," foremost of which is the creation of the
rendered moot with the satisfaction of all the reliefs prayed Memorandum of August 28, 2008 to the Solicitor General,
BJE.
for by petitioners and the subsequent pronouncement of the has stated that "no matter what the Supreme Court ultimately
Executive Secretary that "[n]o matter what the Supreme decides[,] the government will not sign the MOA[-
Court ultimately decides[,] the government will not sign the In fact, as what will, in the main, be discussed, there is AD]," mootness will not set in in light of the terms of the
MOA."92 a commitment on the part of respondents to amend and Tripoli Agreement 2001.
effect necessary changes to the existing legal
framework for certain provisions of the MOA-AD to take
In lending credence to this policy decision, the Solicitor Need to formulate principles-guidelines
effect. Consequently, the present petitions are not confined
General points out that the President had already disbanded
to the terms and provisions of the MOA-AD, but to other on-
the GRP Peace Panel.93
going and future negotiations and agreements necessary Surely, the present MOA-AD can be renegotiated or another
for its realization. The petitions have not, therefore, been one will be drawn up to carry out the Ancestral Domain
In David v. Macapagal-Arroyo,94 this Court held that the rendered moot and academic simply by the public disclosure Aspect of the Tripoli Agreement 2001, in another or in any
"moot and academic" principle not being a magical formula of the MOA-AD,102 the manifestation that it will not be signed form, which could contain similar or significantly drastic
that automatically dissuades courts in resolving a case, it will as well as the disbanding of the GRP Panel not withstanding. provisions. While the Court notes the word of the Executive
decide cases, otherwise moot and academic, if it finds that Secretary that the government "is committed to securing an
(a) there is a grave violation of the Constitution;95 (b) the agreement that is both constitutional and equitable because
Petitions are imbued with paramount public interest
situation is of exceptional character and paramount public that is the only way that long-lasting peace can be assured,"
interest is involved;96 (c) the constitutional issue raised it is minded to render a decision on the merits in the present
requires formulation of controlling principles to guide the There is no gainsaying that the petitions are imbued with petitions to formulate controlling principles to guide the
bench, the bar, and the public;97 and (d) the case is capable paramount public interest, involving a significant part of the bench, the bar, the public and, most especially, the
of repetition yet evading review.98 country's territory and the wide-ranging political modifications government in negotiating with the MILF regarding
of affected LGUs. The assertion that the MOA-AD is Ancestral Domain.
subject to further legal enactments including possible
Another exclusionary circumstance that may be considered
Constitutional amendments more than ever provides
is where there is a voluntary cessation of the activity Respondents invite the Court's attention to the separate
impetus for the Court to formulate controlling principles
complained of by the defendant or doer. Thus, once a suit is opinion of then Chief Justice Artemio Panganiban
to guide the bench, the bar, the public and, in this case,
filed and the doer voluntarily ceases the challenged conduct, in Sanlakas v. Reyes104 in which he stated that the doctrine
the government and its negotiating entity.
it does not automatically deprive the tribunal of power to hear of "capable of repetition yet evading review" can override
and determine the case and does not render the case moot mootness, "provided the party raising it in a proper case has
especially when the plaintiff seeks damages or prays for Respondents cite Suplico v. NEDA, et al.103 where the Court been and/or continue to be prejudiced or damaged as a
injunctive relief against the possible recurrence of the did not "pontificat[e] on issues which no longer legitimately direct result of their issuance." They contend that the Court
violation.99 constitute an actual case or controversy [as this] will do more must have jurisdiction over the subject matter for the doctrine
harm than good to the nation as a whole." to be invoked.
The present petitions fall squarely into these exceptions to
thus thrust them into the domain of judicial review. The The present petitions must be differentiated from Suplico. The present petitions all contain prayers for Prohibition over
grounds cited above in David are just as applicable in the Primarily, in Suplico, what was assailed and eventually which this Court exercises original jurisdiction. While G.R.
present cases as they were, not only in David, but also cancelled was a stand-alone government procurement No. 183893 (City of Iligan v. GRP) is a petition for Injunction
in Province of Batangas v. Romulo100 and Manalo v. contract for a national broadband network involving a one- and Declaratory Relief, the Court will treat it as one for
Calderon101 where the Court similarly decided them on the time contractual relation between two parties-the Prohibition as it has far reaching implications and raises
merits, supervening events that would ordinarily have government and a private foreign corporation. As the issues questions that need to be resolved.105 At all events, the Court
rendered the same moot notwithstanding. therein involved specific government procurement policies has jurisdiction over most if not the rest of the petitions.
and standard principles on contracts, the majority opinion
in Suplico found nothing exceptional therein, the factual
Petitions not mooted Indeed, the present petitions afford a proper venue for the
circumstances being peculiar only to the transactions and
Court to again apply the doctrine immediately referred to as
parties involved in the controversy.
what it had done in a number of landmark cases. 106 There is
a reasonable expectation that petitioners, particularly the In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the x x x [T]he right to information "contemplates
Provinces of North Cotabato, Zamboanga del Norte and Court ruled that access to public records is predicated on the inclusion of negotiations leading to the
Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela, right of the people to acquire information on matters of public consummation of the transaction." Certainly, a
and the Municipality of Linamon, will again be subjected to concern since, undoubtedly, in a democracy, the pubic has a consummated contract is not a requirement for the
the same problem in the future as respondents' actions are legitimate interest in matters of social and political exercise of the right to information. Otherwise, the
capable of repetition, in another or any form. significance. people can never exercise the right if no contract
is consummated, and if one is consummated, it
may be too late for the public to expose its defects.
It is with respect to the prayers for Mandamus that the x x x The incorporation of this right in the Constitution is a
petitions have become moot, respondents having, by recognition of the fundamental role of free exchange of
Compliance of August 7, 2008, provided this Court and information in a democracy. There can be no realistic Requiring a consummated contract will keep the
petitioners with official copies of the final draft of the MOA- perception by the public of the nation's problems, nor a public in the dark until the contract, which may be
AD and its annexes. Too, intervenors have been furnished, meaningful democratic decision-making if they are denied grossly disadvantageous to the government or
or have procured for themselves, copies of the MOA-AD. access to information of general interest. Information is even illegal, becomes fait accompli. This negates
needed to enable the members of society to cope with the the State policy of full transparency on matters of
exigencies of the times. As has been aptly observed: public concern, a situation which the framers of the
V. SUBSTANTIVE ISSUES
"Maintaining the flow of such information depends on Constitution could not have intended. Such a
protection for both its acquisition and its dissemination since, requirement will prevent the citizenry from
As culled from the Petitions and Petitions-in-Intervention, if either process is interrupted, the flow inevitably ceases." x participating in the public discussion of
there are basically two SUBSTANTIVE issues to be x x111 any proposed contract, effectively truncating a
resolved, one relating to the manner in which the MOA-AD basic right enshrined in the Bill of Rights. We can
was negotiated and finalized, the other relating to its allow neither an emasculation of a constitutional
In the same way that free discussion enables members of
provisions, viz: right, nor a retreat by the State of its avowed
society to cope with the exigencies of their time, access to
"policy of full disclosure of all its transactions
information of general interest aids the people in democratic
involving public interest."122 (Emphasis and italics
1. Did respondents violate constitutional and statutory decision-making by giving them a better perspective of the
in the original)
provisions on public consultation and the right to information vital issues confronting the nation112 so that they may be able
when they negotiated and later initialed the MOA-AD? to criticize and participate in the affairs of the government in
a responsible, reasonable and effective manner. It is by Intended as a "splendid symmetry"123 to the right to
ensuring an unfettered and uninhibited exchange of ideas information under the Bill of Rights is the policy of public
2. Do the contents of the MOA-AD violate the Constitution among a well-informed public that a government remains disclosure under Section 28, Article II of the Constitution
and the laws? responsive to the changes desired by the people.113 reading:

ON THE FIRST SUBSTANTIVE ISSUE The MOA-AD is a matter of public concern Sec. 28. Subject to reasonable conditions
prescribed by law, the State adopts and
Petitioners invoke their constitutional right to information implements a policy of full public disclosure of all
That the subject of the information sought in the present
on matters of public concern, as provided in Section 7, its transactions involving public interest.124
cases is a matter of public concern114 faces no serious
Article III on the Bill of Rights: challenge. In fact, respondents admit that the MOA-AD is
indeed of public concern.115 In previous cases, the Court The policy of full public disclosure enunciated in above-
Sec. 7. The right of the people to information on found that the regularity of real estate transactions entered in quoted Section 28 complements the right of access to
matters of public concern shall be recognized. the Register of Deeds,116 the need for adequate notice to the information on matters of public concern found in the Bill of
Access to official records, and to documents, and public of the various laws,117 the civil service eligibility of a Rights. The right to information guarantees the right of the
papers pertaining to official acts, transactions, or public employee,118 the proper management of GSIS funds people to demand information, while Section 28 recognizes
decisions, as well as to government research data allegedly used to grant loans to public officials,119 the the duty of officialdom to give information even if nobody
used as basis for policy development, shall be recovery of the Marcoses' alleged ill-gotten wealth,120 and demands.125
afforded the citizen, subject to such limitations as the identity of party-list nominees,121 among others, are
may be provided by law.107 matters of public concern. Undoubtedly, the MOA-AD
The policy of public disclosure establishes a concrete ethical
subject of the present cases is of public concern,
principle for the conduct of public affairs in a genuinely open
involving as it does the sovereignty and territorial integrity
As early as 1948, in Subido v. Ozaeta,108 the Court has of the State, which directly affects the lives of the public at
democracy, with the people's right to know as the
recognized the statutory right to examine and inspect public centerpiece. It is a mandate of the State to be accountable
large.
records, a right which was eventually accorded constitutional by following such policy.126 These provisions are vital to the
status. exercise of the freedom of expression and essential to hold
Matters of public concern covered by the right to information public officials at all times accountable to the people.127
include steps and negotiations leading to the consummation
The right of access to public documents, as enshrined in of the contract. In not distinguishing as to the executory
both the 1973 Constitution and the 1987 Constitution, has Whether Section 28 is self-executory, the records of the
nature or commercial character of agreements, the Court
been recognized as a self-executory constitutional right.109 has categorically ruled:
deliberations of the Constitutional Commission so disclose:
MR. SUAREZ. And since this is not self-executory, An essential element of these freedoms is to keep open a Filipinos as one community."134 Included as a component of
this policy will not be enunciated or will not be in continuing dialogue or process of communication between the comprehensive peace process is consensus-building and
force and effect until after Congress shall have the government and the people. It is in the interest of the empowerment for peace, which includes "continuing
provided it. State that the channels for free political discussion be consultations on both national and local levels to build
maintained to the end that the government may perceive and consensus for a peace agenda and process, and the
be responsive to the people's will.131Envisioned to mobilization and facilitation of people's participation in the
MR. OPLE. I expect it to influence the climate of
be corollary to the twin rights to information and disclosure is peace process."135
public ethics immediately but, of course, the
the design for feedback mechanisms.
implementing law will have to be enacted by
Congress, Mr. Presiding Officer.128 Clearly, E.O. No. 3 contemplates not just the conduct of
MS. ROSARIO BRAID. Yes. And lastly, Mr. a plebiscite to effectuate "continuing" consultations,
Presiding Officer, will the people be able to contrary to respondents' position that plebiscite is
The following discourse, after Commissioner Hilario Davide,
participate? Will the government provide "more than sufficient consultation."136
Jr., sought clarification on the issue, is enlightening.
feedback mechanisms so that the people can
participate and can react where the existing
Further, E.O. No. 3 enumerates the functions and
MR. DAVIDE. I would like to get some media facilities are not able to provide full
responsibilities of the PAPP, one of which is to
clarifications on this. Mr. Presiding Officer, did I get feedback mechanisms to the government? I
"[c]onduct regular dialogues with the National Peace Forum
the Gentleman correctly as having said that this is suppose this will be part of the government
(NPF) and other peace partners to seek relevant information,
not a self-executing provision? It would require a implementing operational mechanisms.
comments, recommendations as well as to render
legislation by Congress to implement?
appropriate and timely reports on the progress of the
MR. OPLE. Yes. I think through their elected comprehensive peace process."137 E.O. No. 3 mandates the
MR. OPLE. Yes. Originally, it was going to be self- representatives and that is how these courses take establishment of the NPF to be "the principal forum for the
executing, but I accepted an amendment from place. There is a message and a feedback, both PAPP to consult with and seek advi[c]e from the peace
Commissioner Regalado, so that the safeguards ways. advocates, peace partners and concerned sectors of society
on national interest are modified by the clause "as on both national and local levels, on the implementation of
may be provided by law" the comprehensive peace process, as well as for
xxxx
government[-]civil society dialogue and consensus-building
on peace agenda and initiatives."138
MR. DAVIDE. But as worded, does it not mean
MS. ROSARIO BRAID. Mr. Presiding Officer, may
that this will immediately take effect and
I just make one last sentence?
Congress may provide for reasonable In fine, E.O. No. 3 establishes petitioners' right to be
safeguards on the sole ground national interest? consulted on the peace agenda, as a corollary to the
I think when we talk about the feedback constitutional right to information and disclosure.
network, we are not talking about public
MR. OPLE. Yes. I think so, Mr. Presiding
officials but also network of private business
Officer, I said earlier that it should immediately PAPP Esperon committed grave abuse of discretion
o[r] community-based organizations that will
influence the climate of the conduct of public
be reacting. As a matter of fact, we will put more
affairs but, of course, Congress here may no
credence or credibility on the private network of The PAPP committed grave abuse of discretion when
longer pass a law revoking it, or if this is approved,
volunteers and voluntary community-based he failed to carry out the pertinent consultation. The furtive
revoking this principle, which is inconsistent with
organizations. So I do not think we are afraid that process by which the MOA-AD was designed and
this policy.129 (Emphasis supplied)
there will be another OMA in the crafted runs contrary to and in excess of the legal
making.132(Emphasis supplied) authority, and amounts to a whimsical, capricious,
Indubitably, the effectivity of the policy of public oppressive, arbitrary and despotic exercise thereof.
disclosure need not await the passing of a statute. As
The imperative of a public consultation, as a species of the
Congress cannot revoke this principle, it is merely directed to
right to information, is evident in the "marching orders" to The Court may not, of course, require the PAPP to conduct
provide for "reasonable safeguards." The complete and
respondents. The mechanics for the duty to disclose the consultation in a particular way or manner. It may,
effective exercise of the right to information necessitates that
information and to conduct public consultation regarding the however, require him to comply with the law and discharge
its complementary provision on public disclosure derive the
peace agenda and process is manifestly provided by E.O. the functions within the authority granted by the President.139
same self-executory nature. Since both provisions go hand-
No. 3.133 The preambulatory clause of E.O. No. 3 declares
in-hand, it is absurd to say that the broader130 right to
that there is a need to further enhance the contribution of
information on matters of public concern is already Petitioners are not claiming a seat at the negotiating table,
civil society to the comprehensive peace process by
enforceable while the correlative duty of the State to disclose contrary to respondents' retort in justifying the denial of
institutionalizing the people's participation.
its transactions involving public interest is not enforceable petitioners' right to be consulted. Respondents' stance
until there is an enabling law. Respondents cannot thus point manifests the manner by which they treat the salient
to the absence of an implementing legislation as an excuse One of the three underlying principles of the comprehensive provisions of E.O. No. 3 on people's participation. Such
in not effecting such policy. peace process is that it "should be community-based, disregard of the express mandate of the President is not
reflecting the sentiments, values and principles important to much different from superficial conduct toward token
all Filipinos" and "shall be defined not by the government provisos that border on classic lip service.140 It illustrates a
alone, nor by the different contending groups only, but by all
gross evasion of positive duty and a virtual refusal to perform pervasively and drastically result to the diaspora or In general, the objections against the MOA-AD center on the
the duty enjoined. displacement of a great number of inhabitants from their extent of the powers conceded therein to the BJE.
total environment. Petitioners assert that the powers granted to the BJE exceed
those granted to any local government under present laws,
As for respondents' invocation of the doctrine of executive
and even go beyond those of the present ARMM. Before
privilege, it is not tenable under the premises. The argument With respect to the indigenous cultural
assessing some of the specific powers that would have been
defies sound reason when contrasted with E.O. No. 3's communities/indigenous peoples (ICCs/IPs), whose interests
vested in the BJE, however, it would be useful to turn first to
explicit provisions on continuing consultation and dialogue are represented herein by petitioner Lopez and are
a general idea that serves as a unifying link to the different
on both national and local levels. The executive order even adversely affected by the MOA-AD, the ICCs/IPs have,
provisions of the MOA-AD, namely, the international
recognizes the exercise of the public's right even before under the IPRA, the right to participate fully at all levels of
law concept of association. Significantly, the MOA-AD
the GRP makes its official recommendations or before the decision-making in matters which may affect their rights,
explicitly alludes to this concept, indicating that the Parties
government proffers its definite propositions.141 It bear lives and destinies.147 The MOA-AD, an instrument
actually framed its provisions with it in mind.
emphasis that E.O. No. 3 seeks to elicit relevant advice, recognizing ancestral domain, failed to justify its non-
information, comments and recommendations from the compliance with the clear-cut mechanisms ordained in said
people through dialogue. Act,148 which entails, among other things, the observance of Association is referred to in paragraph 3 on TERRITORY,
the free and prior informed consent of the ICCs/IPs. paragraph 11 on RESOURCES, and paragraph 4 on
GOVERNANCE. It is in the last mentioned provision,
AT ALL EVENTS, respondents effectively waived the
however, that the MOA-AD most clearly uses it to describe
defense of executive privilege in view of their unqualified Notably, the IPRA does not grant the Executive Department
the envisioned relationship between the BJE and the Central
disclosure of the official copies of the final draft of the MOA- or any government agency the power to delineate and
Government.
AD. By unconditionally complying with the Court's August 4, recognize an ancestral domain claim by mere agreement or
2008 Resolution, without a prayer for the document's compromise. The recognition of the ancestral domain is
disclosure in camera, or without a manifestation that it was the raison d'etre of the MOA-AD, without which all other 4. The relationship between the Central
complying therewith ex abundante ad cautelam. stipulations or "consensus points" necessarily must fail. In Government and the Bangsamoro juridical
proceeding to make a sweeping declaration on ancestral entity shall be associative characterized by
domain, without complying with the IPRA, which is cited as shared authority and responsibility with a
Petitioners' assertion that the Local Government Code (LGC)
one of the TOR of the MOA-AD, respondents clearly structure of governance based on executive,
of 1991 declares it a State policy to "require all national
transcended the boundaries of their authority. As it legislative, judicial and administrative institutions
agencies and offices to conduct periodic consultations with
seems, even the heart of the MOA-AD is still subject to with defined powers and functions in the
appropriate local government units, non-governmental and
necessary changes to the legal framework. While paragraph comprehensive compact. A period of transition
people's organizations, and other concerned sectors of the
7 on Governance suspends the effectivity of all provisions shall be established in a comprehensive peace
community before any project or program is implemented in
requiring changes to the legal framework, such clause is compact specifying the relationship between the
their respective jurisdictions"142 is well-taken. The LGC
itself invalid, as will be discussed in the following section. Central Government and the BJE. (Emphasis and
chapter on intergovernmental relations puts flesh into this
underscoring supplied)
avowed policy:
Indeed, ours is an open society, with all the acts of the
government subject to public scrutiny and available always The nature of the "associative" relationship may have been
Prior Consultations Required. - No project or
to public cognizance. This has to be so if the country is to intended to be defined more precisely in the still to be forged
program shall be implemented by government
remain democratic, with sovereignty residing in the people Comprehensive Compact. Nonetheless, given that there is a
authorities unlessthe consultations mentioned in
and all government authority emanating from them.149 concept of "association" in international law, and the MOA-
Sections 2 (c) and 26 hereof are complied with,
AD - by its inclusion of international law instruments in its
and prior approval of the sanggunian concerned is
TOR- placed itself in an international legal context, that
obtained: Provided, That occupants in areas ON THE SECOND SUBSTANTIVE ISSUE
concept of association may be brought to bear in
where such projects are to be implemented shall
understanding the use of the term "associative" in the MOA-
not be evicted unless appropriate relocation sites
With regard to the provisions of the MOA-AD, there can be AD.
have been provided, in accordance with the
no question that they cannot all be accommodated under the
provisions of the Constitution.143 (Italics and
present Constitution and laws. Respondents have admitted
underscoring supplied) Keitner and Reisman state that
as much in the oral arguments before this Court, and the
MOA-AD itself recognizes the need to amend the existing
In Lina, Jr. v. Hon. Paño,144 the Court held that the above- legal framework to render effective at least some of its [a]n association is formed when two states of
stated policy and above-quoted provision of the LGU apply provisions. Respondents, nonetheless, counter that the unequal power voluntarily establish durable links.
only to national programs or projects which are to be MOA-AD is free of any legal infirmity because any provisions In the basic model, one state, the associate,
implemented in a particular local community. Among the therein which are inconsistent with the present legal delegates certain responsibilities to the other,
programs and projects covered are those that are critical to framework will not be effective until the necessary changes the principal, while maintaining its
the environment and human ecology including those that to that framework are made. The validity of this argument will international status as a state. Free
may call for the eviction of a particular group of people be considered later. For now, the Court shall pass upon how associations represent a middle ground
residing in the locality where these will be between integration and independence. x x
implemented.145 The MOA-AD is one peculiar program x150 (Emphasis and underscoring supplied)
The MOA-AD is inconsistent with the Constitution and
that unequivocally and unilaterally vests ownership of a
laws as presently worded.
vast territory to the Bangsamoro people,146 which could
For purposes of illustration, the Republic of the Marshall specialized UN agencies, and the continuing responsibility of The BJE is a far more powerful
Islands and the Federated States of Micronesia (FSM), the Central Government over external defense. Moreover, entity than the autonomous region
formerly part of the U.S.-administered Trust Territory of the the BJE's right to participate in Philippine official missions recognized in the Constitution
Pacific Islands,151 are associated states of the U.S. pursuant bearing on negotiation of border agreements, environmental
to a Compact of Free Association. The currency in these protection, and sharing of revenues pertaining to the bodies
It is not merely an expanded version of the ARMM, the
countries is the U.S. dollar, indicating their very close ties of water adjacent to or between the islands forming part of
status of its relationship with the national government being
with the U.S., yet they issue their own travel documents, the ancestral domain, resembles the right of the
fundamentally different from that of the ARMM. Indeed, BJE
which is a mark of their statehood. Their international legal governments of FSM and the Marshall Islands to be
is a state in all but name as it meets the criteria of a
status as states was confirmed by the UN Security Council consulted by the U.S. government on any foreign affairs
state laid down in the Montevideo Convention,154 namely,
and by their admission to UN membership. matter affecting them.
a permanent population, a defined territory, a government,
and a capacity to enter into relations with other states.
According to their compacts of free association, the Marshall These provisions of the MOA indicate, among other things,
Islands and the FSM generally have the capacity to conduct that the Parties aimed to vest in the BJE the status of
Even assuming arguendo that the MOA-AD would not
foreign affairs in their own name and right, such capacity an associated state or, at any rate, a status closely
necessarily sever any portion of Philippine territory, the
extending to matters such as the law of the sea, marine approximating it.
spirit animating it - which has betrayed itself by its use of
resources, trade, banking, postal, civil aviation, and cultural
the concept of association - runs counter to the national
relations. The U.S. government, when conducting its foreign
The concept of association is not recognized under the sovereignty and territorial integrity of the Republic.
affairs, is obligated to consult with the governments of the
present Constitution
Marshall Islands or the FSM on matters which it (U.S.
government) regards as relating to or affecting either The defining concept underlying the relationship
government. No province, city, or municipality, not even the ARMM, is between the national government and the BJE being
recognized under our laws as having an "associative" itself contrary to the present Constitution, it is not
relationship with the national government. Indeed, the surprising that many of the specific provisions of the
In the event of attacks or threats against the Marshall Islands
concept implies powers that go beyond anything ever MOA-AD on the formation and powers of the BJE are in
or the FSM, the U.S. government has the authority and
granted by the Constitution to any local or regional conflict with the Constitution and the laws.
obligation to defend them as if they were part of U.S.
government. It also implies the recognition of the associated
territory. The U.S. government, moreover, has the option of
entity as a state. The Constitution, however, does not
establishing and using military areas and facilities within Article X, Section 18 of the Constitution provides that "[t]he
contemplate any state in this jurisdiction other than the
these associated states and has the right to bar the military creation of the autonomous region shall be effective when
Philippine State, much less does it provide for a transitory
personnel of any third country from having access to these approved by a majority of the votes cast by the constituent
status that aims to prepare any part of Philippine territory for
territories for military purposes. units in a plebiscite called for the purpose, provided that only
independence.
provinces, cities, and geographic areas voting favorably
in such plebiscite shall be included in the autonomous
It bears noting that in U.S. constitutional and international
Even the mere concept animating many of the MOA-AD's region." (Emphasis supplied)
practice, free association is understood as an international
provisions, therefore, already requires for its validity the
association between sovereigns. The Compact of Free
amendment of constitutional provisions, specifically the
Association is a treaty which is subordinate to the associated As reflected above, the BJE is more of a state than an
following provisions of Article X:
nation's national constitution, and each party may terminate autonomous region. But even assuming that it is covered by
the association consistent with the right of independence. It the term "autonomous region" in the constitutional provision
has been said that, with the admission of the U.S.- SECTION 1. The territorial and political just quoted, the MOA-AD would still be in conflict with it.
associated states to the UN in 1990, the UN recognized that subdivisions of the Republic of the Philippines are Under paragraph 2(c) on TERRITORY in relation to 2(d) and
the American model of free association is actually based on the provinces, cities, municipalities, and 2(e), the present geographic area of the ARMM and, in
an underlying status of independence.152 barangays. There shall be autonomous addition, the municipalities of Lanao del Norte which voted
regions in Muslim Mindanao and the Cordilleras for inclusion in the ARMM during the 2001 plebiscite - Baloi,
as hereinafter provided. Munai, Nunungan, Pantar, Tagoloan and Tangkal - are
In international practice, the "associated state" arrangement
automatically part of the BJE without need of another
has usually been used as a transitional device of former
plebiscite, in contrast to the areas under Categories A and B
colonies on their way to full independence. Examples of SECTION 15. There shall be created autonomous
mentioned earlier in the overview. That the present
states that have passed through the status of associated regions in Muslim Mindanao and in the Cordilleras
components of the ARMM and the above-mentioned
states as a transitional phase are Antigua, St. Kitts-Nevis- consisting of provinces, cities, municipalities, and
municipalities voted for inclusion therein in 2001, however,
Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All geographical areas sharing common and
does not render another plebiscite unnecessary under the
have since become independent states.153 distinctive historical and cultural heritage,
Constitution, precisely because what these areas voted for
economic and social structures, and other relevant
then was their inclusion in the ARMM, not the BJE.
characteristics within the framework of this
Back to the MOA-AD, it contains many provisions which are
Constitution and the national sovereignty as
consistent with the international legal concept of association,
well as territorial integrity of the Republic of The MOA-AD, moreover, would not
specifically the following: the BJE's capacity to enter into
the Philippines. comply with Article X, Section 20 of
economic and trade relations with foreign countries, the
the Constitution
commitment of the Central Government to ensure the BJE's
participation in meetings and events in the ASEAN and the
since that provision defines the powers of autonomous nations. As the chief architect of foreign policy, "As used in this Organic Act, the phrase
regions as follows: the President acts as the country's mouthpiece "indigenous cultural community" refers to Filipino
with respect to international affairs. Hence, the citizens residing in the autonomous region who
President is vested with the authority to deal are:
SECTION 20. Within its territorial jurisdiction
with foreign states and governments, extend or
and subject to the provisions of this Constitution
withhold recognition, maintain diplomatic
and national laws, the organic act of autonomous (a) Tribal peoples. These are citizens whose
relations, enter into treaties, and otherwise
regions shall provide for legislative powers over: social, cultural and economic conditions
transact the business of foreign relations. In
distinguish them from other sectors of the national
the realm of treaty-making, the President has
community; and
(1) Administrative organization; the sole authority to negotiate with other
states. (Emphasis and underscoring supplied)
(b) Bangsa Moro people. These are citizens who
(2) Creation of sources of revenues;
are believers in Islam and who have retained
Article II, Section 22 of the Constitution must also be
some or all of their own social, economic,
amended if the scheme envisioned in the MOA-AD is to
(3) Ancestral domain and natural resources; cultural, and political institutions."
be effected. That constitutional provision states: "The State
recognizes and promotes the rights of indigenous cultural
(4) Personal, family, and property relations; communities within the framework of national unity and Respecting the IPRA, it lays down the prevailing procedure
development." (Underscoring for the delineation and recognition of ancestral domains. The
supplied) An associative arrangement does not uphold MOA-AD's manner of delineating the ancestral domain of the
(5) Regional urban and rural planning national unity. While there may be a semblance of unity Bangsamoro people is a clear departure from that
development; because of the associative ties between the BJE and the procedure. By paragraph 1 of Territory, the Parties simply
national government, the act of placing a portion of agree that, subject to the delimitations in the agreed
(6) Economic, social, and tourism development; Philippine territory in a status which, in international practice, Schedules, "[t]he Bangsamoro homeland and historic
has generally been a preparation for independence, is territory refer to the land mass as well as the maritime,
certainly not conducive to national unity. terrestrial, fluvial and alluvial domains, and the aerial
(7) Educational policies; domain, the atmospheric space above it, embracing the
Mindanao-Sulu-Palawan geographic region."
Besides being irreconcilable with the Constitution, the MOA-
(8) Preservation and development of the cultural AD is also inconsistent with prevailing statutory law,
heritage; and among which are R.A. No. 9054156 or the Organic Act of the Chapter VIII of the IPRA, on the other hand, lays down a
ARMM, and the IPRA.157 detailed procedure, as illustrated in the following provisions
(9) Such other matters as may be authorized by thereof:
law for the promotion of the general welfare of the Article X, Section 3 of the Organic Act of the ARMM is a
people of the region. (Underscoring supplied) bar to the adoption of the definition of "Bangsamoro SECTION 52. Delineation Process. - The
people" used in the MOA-AD. Paragraph 1 on Concepts and identification and delineation of ancestral domains
Again on the premise that the BJE may be regarded as an Principles states: shall be done in accordance with the following
autonomous region, the MOA-AD would require an procedures:
amendment that would expand the above-quoted provision. 1. It is the birthright of all Moros and all
The mere passage of new legislation pursuant to sub- Indigenous peoples of Mindanao to identify xxxx
paragraph No. 9 of said constitutional provision would not themselves and be accepted as
suffice, since any new law that might vest in the BJE the "Bangsamoros". The Bangsamoro people refers
powers found in the MOA-AD must, itself, comply with other to those who are natives or original inhabitants b) Petition for Delineation. - The process of
provisions of the Constitution. It would not do, for instance, to of Mindanao and its adjacent islands including delineating a specific perimeter may be initiated by
merely pass legislation vesting the BJE with treaty-making the NCIP with the consent of the ICC/IP
Palawan and the Sulu archipelago at the time of
power in order to accommodate paragraph 4 of the strand on conquest or colonization of its descendants concerned, or through a Petition for Delineation
RESOURCES which states: "The BJE is free to enter into whether mixed or of full blood. Spouses and their filed with the NCIP, by a majority of the members
any economic cooperation and trade relations with foreign of the ICCs/IPs;
descendants are classified as Bangsamoro. The
countries: provided, however, that such relationships and freedom of choice of the Indigenous people shall
understandings do not include aggression against the be respected. (Emphasis and underscoring c) Delineation Proper. - The official delineation of
Government of the Republic of the Philippines x x x." Under supplied) ancestral domain boundaries including census of
our constitutional system, it is only the President who has all community members therein, shall be
that power. Pimentel v. Executive Secretary155 instructs:
This use of the term Bangsamoro sharply contrasts with that immediately undertaken by the Ancestral Domains
Office upon filing of the application by the ICCs/IPs
found in the Article X, Section 3 of the Organic Act, which,
In our system of government, the President, being rather than lumping together the identities of the concerned. Delineation will be done in
the head of state, is regarded as the sole Bangsamoro and other indigenous peoples living in coordination with the community concerned and
organ and authority in external relations and is Mindanao, clearly distinguishes between Bangsamoro shall at all times include genuine involvement and
the country's sole representative with foreign people and Tribal peoples, as follows:
participation by the members of the communities technical descriptions, and a description of the Article II, Section 2 of the Constitution states that the
concerned; natural features and landmarks embraced therein; Philippines "adopts the generally accepted principles of
international law as part of the law of the land."
d) Proof Required. - Proof of Ancestral Domain f) Report of Investigation and Other Documents. -
Claims shall include the testimony of elders or A complete copy of the preliminary census and a Applying this provision of the Constitution, the Court,
community under oath, and other documents report of investigation, shall be prepared by the in Mejoff v. Director of Prisons,158 held that the Universal
directly or indirectly attesting to the possession or Ancestral Domains Office of the NCIP; Declaration of Human Rights is part of the law of the land on
occupation of the area since time immemorial by account of which it ordered the release on bail of a detained
such ICCs/IPs in the concept of owners which alien of Russian descent whose deportation order had not
g) Notice and Publication. - A copy of each
shall be any one (1) of the following authentic been executed even after two years. Similarly, the Court
document, including a translation in the native
documents: in Agustin v. Edu159 applied the aforesaid constitutional
language of the ICCs/IPs concerned shall be
provision to the 1968 Vienna Convention on Road Signs and
posted in a prominent place therein for at least
Signals.
1) Written accounts of the ICCs/IPs fifteen (15) days. A copy of the document shall
customs and traditions; also be posted at the local, provincial and regional
offices of the NCIP, and shall be published in a International law has long recognized the right to self-
newspaper of general circulation once a week for determination of "peoples," understood not merely as the
2) Written accounts of the ICCs/IPs
two (2) consecutive weeks to allow other claimants entire population of a State but also a portion thereof. In
political structure and institution;
to file opposition thereto within fifteen (15) days considering the question of whether the people of Quebec
from date of such publication: Provided, That in had a right to unilaterally secede from Canada, the Canadian
3) Pictures showing long term areas where no such newspaper exists, Supreme Court in REFERENCE RE SECESSION OF
occupation such as those of old broadcasting in a radio station will be a valid QUEBEC160 had occasion to acknowledge that "the right of a
improvements, burial grounds, sacred substitute: Provided, further, That mere posting people to self-determination is now so widely recognized in
places and old villages; shall be deemed sufficient if both newspaper and international conventions that the principle has acquired a
radio station are not available; status beyond ‘convention' and is considered a general
principle of international law."
4) Historical accounts, including pacts
and agreements concerning boundaries h) Endorsement to NCIP. - Within fifteen (15) days
entered into by the ICCs/IPs concerned from publication, and of the inspection process, Among the conventions referred to are the International
with other ICCs/IPs; the Ancestral Domains Office shall prepare a Covenant on Civil and Political Rights161 and the
report to the NCIP endorsing a favorable action International Covenant on Economic, Social and Cultural
upon a claim that is deemed to have sufficient Rights162 which state, in Article 1 of both covenants, that all
5) Survey plans and sketch maps; proof. However, if the proof is deemed insufficient, peoples, by virtue of the right of self-determination, "freely
the Ancestral Domains Office shall require the determine their political status and freely pursue their
6) Anthropological data; submission of additional evidence: Provided, That economic, social, and cultural development."
the Ancestral Domains Office shall reject any claim
that is deemed patently false or fraudulent after
7) Genealogical surveys; The people's right to self-determination should not, however,
inspection and verification: Provided, further, That
be understood as extending to a unilateral right of secession.
in case of rejection, the Ancestral Domains Office
A distinction should be made between the right of internal
8) Pictures and descriptive histories of shall give the applicant due notice, copy furnished
and external self-determination. REFERENCE RE
traditional communal forests and hunting all concerned, containing the grounds for denial.
SECESSION OF QUEBEC is again instructive:
grounds; The denial shall be appealable to the NCIP:
Provided, furthermore, That in cases where there
are conflicting claims among ICCs/IPs on the "(ii) Scope of the Right to Self-determination
9) Pictures and descriptive histories of boundaries of ancestral domain claims, the
traditional landmarks such as Ancestral Domains Office shall cause the
mountains, rivers, creeks, ridges, hills, contending parties to meet and assist them in 126. The recognized sources of international law
terraces and the like; and establish that the right to self-determination of a
coming up with a preliminary resolution of the
people is normally fulfilled
conflict, without prejudice to its full adjudication
through internal self-determination - a people's
10) Write-ups of names and places according to the section below.
pursuit of its political, economic, social and
derived from the native dialect of the cultural development within the framework of
community. xxxx an existing state. A right to external self-
determination (which in this case potentially
e) Preparation of Maps. - On the basis of such takes the form of the assertion of a right to
To remove all doubts about the irreconcilability of the MOA-
investigation and the findings of fact based unilateral secession) arises in only the most
AD with the present legal system, a discussion of not only
thereon, the Ancestral Domains Office of the NCIP extreme of cases and, even then, under
the Constitution and domestic statutes, but also of
shall prepare a perimeter map, complete with carefully defined circumstances. x x x
international law is in order, for
External self-determination can be defined as x x x [I]n the absence of express provisions in scholarship as well as international, regional, and state
in the following statement from the Declaration international treaties, the right of disposing of practices, to refer to groups with distinct cultures, histories,
on Friendly Relations, supra, as national territory is essentially an attribute of and connections to land (spiritual and otherwise) that have
the sovereignty of every State. Positive been forcibly incorporated into a larger governing society.
International Law does not recognize the right These groups are regarded as "indigenous" since they are
The establishment of a sovereign and
of national groups, as such, to separate the living descendants of pre-invasion inhabitants of lands
independent State, the free association or
themselves from the State of which they form now dominated by others. Otherwise stated, indigenous
integration with an independent State or the
part by the simple expression of a wish, any peoples, nations, or communities are culturally distinctive
emergence into any other political status freely
more than it recognizes the right of other States to groups that find themselves engulfed by settler societies
determined by a peopleconstitute modes of
claim such a separation. Generally speaking, the born of the forces of empire and conquest.164 Examples of
implementing the right of self-determination by that
grant or refusal of the right to a portion of its groups who have been regarded as indigenous peoples are
people. (Emphasis added)
population of determining its own political fate the Maori of New Zealand and the aboriginal peoples of
by plebiscite or by some other method, is, Canada.
127. The international law principle of self- exclusively, an attribute of the sovereignty of
determination has evolved within a framework every State which is definitively constituted. A
As with the broader category of "peoples," indigenous
of respect for the territorial integrity of existing dispute between two States concerning such a
peoples situated within states do not have a general right to
states. The various international documents that question, under normal conditions therefore, bears
independence or secession from those states under
support the existence of a people's right to self- upon a question which International Law leaves
international law,165 but they do have rights amounting to
determination also contain parallel statements entirely to the domestic jurisdiction of one of the
what was discussed above as the right to internal self-
supportive of the conclusion that the exercise of States concerned. Any other solution would
determination.
such a right must be sufficiently limited to prevent amount to an infringement of sovereign rights of a
threats to an existing state's territorial integrity or State and would involve the risk of creating
the stability of relations between sovereign states. difficulties and a lack of stability which would not In a historic development last September 13, 2007, the UN
only be contrary to the very idea embodied in term General Assembly adopted the United Nations Declaration
"State," but would also endanger the interests of on the Rights of Indigenous Peoples (UN DRIP)
x x x x (Emphasis, italics and underscoring
the international community. If this right is not through General Assembly Resolution 61/295. The vote
supplied) possessed by a large or small section of a nation, was 143 to 4, the Philippines being included among those in
neither can it be held by the State to which the favor, and the four voting against being Australia, Canada,
The Canadian Court went on to discuss the exceptional national group wishes to be attached, nor by any New Zealand, and the U.S. The Declaration clearly
cases in which the right to external self-determination can other State. (Emphasis and underscoring supplied) recognized the right of indigenous peoples to self-
arise, namely, where a people is under colonial rule, is determination, encompassing the right to autonomy or
subject to foreign domination or exploitation outside a self-government, to wit:
The Committee held that the dispute concerning the Aaland
colonial context, and - less definitely but asserted by a Islands did not refer to a question which is left by
number of commentators - is blocked from the meaningful
international law to the domestic jurisdiction of Finland, Article 3
exercise of its right to internal self-determination. The Court thereby applying the exception rather than the rule
ultimately held that the population of Quebec had no right to elucidated above. Its ground for departing from the general
secession, as the same is not under colonial rule or foreign Indigenous peoples have the right to self-
rule, however, was a very narrow one, namely, the Aaland
domination, nor is it being deprived of the freedom to make determination. By virtue of that right they freely
Islands agitation originated at a time when Finland was
political choices and pursue economic, social and cultural undergoing drastic political transformation. The internal determine their political status and freely pursue
development, citing that Quebec is equitably represented in their economic, social and cultural development.
situation of Finland was, according to the Committee, so
legislative, executive and judicial institutions within Canada, abnormal that, for a considerable time, the conditions
even occupying prominent positions therein. required for the formation of a sovereign State did not exist. Article 4
In the midst of revolution, anarchy, and civil war, the
The exceptional nature of the right of secession is further legitimacy of the Finnish national government was disputed
by a large section of the people, and it had, in fact, been Indigenous peoples, in exercising their right to self-
exemplified in the REPORT OF THE INTERNATIONAL
chased from the capital and forcibly prevented from carrying determination, have the right
COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF
to autonomy or self-government in matters
THE AALAND ISLANDS QUESTION.163 There, Sweden out its duties. The armed camps and the police were divided
into two opposing forces. In light of these circumstances, relating to their internal and local affairs, as
presented to the Council of the League of Nations the
Finland was not, during the relevant time period, a well as ways and means for financing their
question of whether the inhabitants of the Aaland Islands
"definitively constituted" sovereign state. The Committee, autonomous functions.
should be authorized to determine by plebiscite if the
archipelago should remain under Finnish sovereignty or be therefore, found that Finland did not possess the right to
incorporated in the kingdom of Sweden. The Council, before withhold from a portion of its population the option to Article 5
resolving the question, appointed an International Committee separate itself - a right which sovereign nations generally
composed of three jurists to submit an opinion on the have with respect to their own populations.
preliminary issue of whether the dispute should, based on Indigenous peoples have the right to maintain and
international law, be entirely left to the domestic jurisdiction strengthen their distinct political, legal, economic,
Turning now to the more specific category social and cultural institutions, while retaining their
of Finland. The Committee stated the rule as follows: of indigenous peoples, this term has been used, in right to participate fully, if they so choose, in the
political, economic, social and cultural life of the elders, women, youth, children and persons with 3. States shall provide effective mechanisms for
State. disabilities. just and fair redress for any such activities, and
appropriate measures shall be taken to mitigate
adverse environmental, economic, social, cultural
Self-government, as used in international legal discourse Article 26
or spiritual impact.
pertaining to indigenous peoples, has been understood as
equivalent to "internal self-determination."166 The extent of
1. Indigenous peoples have the right to the
self-determination provided for in the UN DRIP is more Article 37
lands, territories and resources which they
particularly defined in its subsequent articles, some of which
have traditionally owned, occupied or
are quoted hereunder:
otherwise used or acquired. 1. Indigenous peoples have the right to the
recognition, observance and enforcement of
Article 8 treaties, agreements and other constructive
2. Indigenous peoples have the right to own, use,
arrangements concluded with States or their
develop and control the lands, territories and
successors and to have States honour and respect
1. Indigenous peoples and individuals have the resources that they possess by reason of
such treaties, agreements and other constructive
right not to be subjected to forced assimilation or traditional ownership or other traditional
arrangements.
destruction of their culture. occupation or use, as well as those which they
have otherwise acquired.
2. Nothing in this Declaration may be interpreted
2. States shall provide effective mechanisms
as diminishing or eliminating the rights of
for prevention of, and redress for: 3. States shall give legal recognition and
indigenous peoples contained in treaties,
protection to these lands, territories and resources.
agreements and other constructive arrangements.
Such recognition shall be conducted with due
(a) Any action which has the aim or effect of
respect to the customs, traditions and land tenure
depriving them of their integrity as distinct
systems of the indigenous peoples concerned. Article 38
peoples, or of their cultural values or ethnic
identities;
Article 30 States in consultation and cooperation with
indigenous peoples, shall take the appropriate
(b) Any action which has the aim or effect of
measures, including legislative measures, to
dispossessing them of their lands, territories 1. Military activities shall not take place in the
achieve the ends of this Declaration.
or resources; lands or territories of indigenous peoples, unless
justified by a relevant public interest or otherwise
freely agreed with or requested by the indigenous Assuming that the UN DRIP, like the Universal Declaration
(c) Any form of forced population transfer
peoples concerned. on Human Rights, must now be regarded as embodying
which has the aim or effect of violating or
customary international law - a question which the Court
undermining any of their rights;
need not definitively resolve here - the obligations
2. States shall undertake effective consultations
enumerated therein do not strictly require the Republic to
with the indigenous peoples concerned, through
(d) Any form of forced assimilation or integration; grant the Bangsamoro people, through the instrumentality of
appropriate procedures and in particular through
the BJE, the particular rights and powers provided for in the
their representative institutions, prior to using their
MOA-AD. Even the more specific provisions of the UN DRIP
(e) Any form of propaganda designed to lands or territories for military activities.
are general in scope, allowing for flexibility in its application
promote or incite racial or ethnic
by the different States.
discrimination directed against them.
Article 32
There is, for instance, no requirement in the UN DRIP that
Article 21
1. Indigenous peoples have the right to determine States now guarantee indigenous peoples their own police
and develop priorities and strategies for the and internal security force. Indeed, Article 8 presupposes
1. Indigenous peoples have the right, without development or use of their lands or territories and that it is the State which will provide protection for indigenous
discrimination, to the improvement of their other resources. peoples against acts like the forced dispossession of their
economic and social conditions, including, inter lands - a function that is normally performed by police
alia, in the areas of education, employment, officers. If the protection of a right so essential to indigenous
2. States shall consult and cooperate in good faith people's identity is acknowledged to be the responsibility of
vocational training and retraining, housing,
with the indigenous peoples concerned through the State, then surely the protection of rights less significant
sanitation, health and social security.
their own representative institutions in order to
to them as such peoples would also be the duty of States.
obtain their free and informed consent prior to the Nor is there in the UN DRIP an acknowledgement of the right
2. States shall take effective measures and, where approval of any project affecting their lands or of indigenous peoples to the aerial domain and atmospheric
appropriate, special measures to ensure territories and other resources, particularly in
space. What it upholds, in Article 26 thereof, is the right of
continuing improvement of their economic and connection with the development, utilization or indigenous peoples to the lands, territories and resources
social conditions. Particular attention shall be paid exploitation of mineral, water or other resources. which they have traditionally owned, occupied or otherwise
to the rights and special needs of indigenous used or acquired.
Moreover, the UN DRIP, while upholding the right of Notwithstanding the suspensive clause, however, require administrative action, new legislation
indigenous peoples to autonomy, does not obligate States to respondents, by their mere act of incorporating in the MOA- or even constitutional amendments.
grant indigenous peoples the near-independent status of an AD the provisions thereof regarding the associative
associated state. All the rights recognized in that document relationship between the BJE and the Central Government,
x x x x (Emphasis supplied)
are qualified in Article 46 as follows: have already violated the Memorandum of Instructions From
The President dated March 1, 2001, which states that the
"negotiations shall be conducted in accordance with x x x the The MOA-AD, therefore, may reasonably be perceived as an
1. Nothing in this Declaration may
principles of the sovereignty and territorial integrityof the attempt of respondents to address, pursuant to this provision
be interpreted as implying for any State, people,
Republic of the Philippines." (Emphasis supplied) of E.O. No. 3, the root causes of the armed conflict in
group or person any right to engage in any activity
Establishing an associative relationship between the BJE Mindanao. The E.O. authorized them to "think outside the
or to perform any act contrary to the Charter of the
and the Central Government is, for the reasons already box," so to speak. Hence, they negotiated and were set on
United Nations or construed as authorizing or
discussed, a preparation for independence, or worse, an signing the MOA-AD that included various social, economic,
encouraging any action which would
implicit acknowledgment of an independent status already and political reforms which cannot, however, all be
dismember or impair, totally or in part, the
prevailing. accommodated within the present legal framework, and
territorial integrity or political unity of
which thus would require new legislation and constitutional
sovereign and independent States.
amendments.
Even apart from the above-mentioned Memorandum,
however, the MOA-AD is defective because the suspensive
Even if the UN DRIP were considered as part of the law of
clause is invalid, as discussed below. The inquiry on the legality of the "suspensive clause,"
the land pursuant to Article II, Section 2 of the Constitution, it
however, cannot stop here, because it must be
would not suffice to uphold the validity of the MOA-AD so as
asked whether the President herself may exercise the
to render its compliance with other laws unnecessary. The authority of the GRP Peace Negotiating Panel to
power delegated to the GRP Peace Panel under E.O. No.
negotiate with the MILF is founded on E.O. No. 3, Section
3, Sec. 4(a).
5(c), which states that there shall be established
It is, therefore, clear that the MOA-AD contains
Government Peace Negotiating Panels for negotiations with
numerous provisions that cannot be reconciled with the
different rebel groups to be "appointed by the President as The President cannot delegate a power that she herself does
Constitution and the laws as presently worded.
her official emissaries to conduct negotiations, dialogues, not possess. May the President, in the course of peace
Respondents proffer, however, that the signing of the MOA-
and face-to-face discussions with rebel groups." These negotiations, agree to pursue reforms that would require new
AD alone would not have entailed any violation of law or
negotiating panels are to report to the President, through the legislation and constitutional amendments, or should the
grave abuse of discretion on their part, precisely because it
PAPP on the conduct and progress of the negotiations. reforms be restricted only to those solutions which the
stipulates that the provisions thereof inconsistent with the
present laws allow? The answer to this question requires a
laws shall not take effect until these laws are amended. They
discussion of the extent of the President's power to
cite paragraph 7 of the MOA-AD strand on GOVERNANCE It bears noting that the GRP Peace Panel, in exploring
conduct peace negotiations.
quoted earlier, but which is reproduced below for lasting solutions to the Moro Problem through its
convenience: negotiations with the MILF, was not restricted by E.O. No. 3
only to those options available under the laws as they That the authority of the President to conduct peace
presently stand. One of the components of a comprehensive negotiations with rebel groups is not explicitly mentioned in
7. The Parties agree that the mechanisms and
peace process, which E.O. No. 3 collectively refers to as the the Constitution does not mean that she has no such
modalities for the actual implementation of this
"Paths to Peace," is the pursuit of social, economic, and authority. In Sanlakas v. Executive Secretary,168 in issue was
MOA-AD shall be spelt out in the Comprehensive
political reforms which may require new legislation or even the authority of the President to declare a state of rebellion -
Compact to mutually take such steps to enable it
constitutional amendments. Sec. 4(a) of E.O. No. 3, which an authority which is not expressly provided for in the
to occur effectively.
reiterates Section 3(a), of E.O. No. 125,167 states: Constitution. The Court held thus:

Any provisions of the MOA-AD requiring


SECTION 4. The Six Paths to Peace. - The "In her ponencia in Marcos v. Manglapus, Justice
amendments to the existing legal framework shall
components of the comprehensive peace process Cortes put her thesis into jurisprudence. There, the
come into force upon signing of a Comprehensive
comprise the processes known as the "Paths to Court, by a slim 8-7 margin, upheld the President's
Compact and upon effecting the necessary
Peace". These component processes are power to forbid the return of her exiled
changes to the legal framework with due regard to
interrelated and not mutually exclusive, and must predecessor. The rationale for the majority's ruling
non derogation of prior agreements and within the
therefore be pursued simultaneously in a rested on the President's
stipulated timeframe to be contained in the
coordinated and integrated fashion. They shall
Comprehensive Compact.
include, but may not be limited to, the following:
. . . unstated residual powers which
are implied from the grant of
Indeed, the foregoing stipulation keeps many controversial
a. PURSUIT OF SOCIAL, ECONOMIC AND executive power and which
provisions of the MOA-AD from coming into force until the
POLITICAL REFORMS. This component involves are necessary for her to comply with
necessary changes to the legal framework are
the vigorous implementation of various her duties under the
effected. While the word "Constitution" is not mentioned
policies, reforms, programs and projects Constitution. The powers of the
in the provision now under consideration or anywhere
aimed at addressing the root causes of internal President are not limited to what are
else in the MOA-AD, the term "legal framework" is
armed conflicts and social unrest. This may expressly enumerated in the article
certainly broad enough to include the Constitution.
on the Executive Department and in
scattered provisions of the setting up the rules by which the new democracy solutions that may require changes to the Constitution for
Constitution. This is so, will operate.170 their implementation. Being uniquely vested with the power
notwithstanding the avowed intent of the to conduct peace negotiations with rebel groups, the
members of the Constitutional President is in a singular position to know the precise nature
In the same vein, Professor Christine Bell, in her article on
Commission of 1986 to limit the powers of their grievances which, if resolved, may bring an end to
the nature and legal status of peace agreements, observed
of the President as a reaction to the hostilities.
that the typical way that peace agreements establish or
abuses under the regime of Mr. Marcos,
confirm mechanisms for demilitarization and demobilization
for the result was a limitation of specific
is by linking them to new constitutional The President may not, of course, unilaterally implement the
powers of the President, particularly
structures addressing governance, elections, and legal and solutions that she considers viable, but she may not be
those relating to the commander-in-chief 171
human rights institutions. prevented from submitting them as recommendations to
clause, but not a diminution of the
Congress, which could then, if it is minded, act upon them
general grant of executive power.
pursuant to the legal procedures for constitutional
In the Philippine experience, the link between peace
amendment and revision. In particular, Congress would have
agreements and constitution-making has been recognized by
Thus, the President's authority to declare a the option, pursuant to Article XVII, Sections 1 and 3 of the
no less than the framers of the Constitution. Behind the
state of rebellion springs in the main from her Constitution, to propose the recommended amendments or
provisions of the Constitution on autonomous regions 172 is
powers as chief executive and, at the same revision to the people, call a constitutional convention, or
the framers' intention to implement a particular peace
time, draws strength from her Commander-in- submit to the electorate the question of calling such a
agreement, namely, the Tripoli Agreement of 1976 between
Chief powers. x x x (Emphasis and underscoring convention.
the GRP and the MNLF, signed by then Undersecretary of
supplied)
National Defense Carmelo Z. Barbero and then MNLF
Chairman Nur Misuari. While the President does not possess constituent powers -
Similarly, the President's power to conduct peace as those powers may be exercised only by Congress, a
negotiations is implicitly included in her powers as Chief Constitutional Convention, or the people through initiative
MR. ROMULO. There are other speakers; so,
Executive and Commander-in-Chief. As Chief Executive, the and referendum - she may submit proposals for
although I have some more questions, I will
President has the general responsibility to promote public constitutional change to Congress in a manner that does not
reserve my right to ask them if they are not
peace, and as Commander-in-Chief, she has the more involve the arrogation of constituent powers.
covered by the other speakers. I have only two
specific duty to prevent and suppress rebellion and lawless
questions.
violence.169
In Sanidad v. COMELEC,174 in issue was the legality of then
President Marcos' act of directly submitting proposals for
I heard one of the Commissioners say that
As the experience of nations which have similarly gone constitutional amendments to a referendum, bypassing the
local autonomy already exists in the Muslim
through internal armed conflict will show, however, peace is interim National Assembly which was the body vested by the
region; it is working very well; it has, in fact,
rarely attained by simply pursuing a military solution. 1973 Constitution with the power to propose such
diminished a great deal of the problems. So, my
Oftentimes, changes as far-reaching as a fundamental amendments. President Marcos, it will be recalled, never
question is: since that already exists, why do we
reconfiguration of the nation's constitutional structure is convened the interim National Assembly. The majority
have to go into something new?
required. The observations of Dr. Kirsti Samuels are upheld the President's act, holding that "the urges of
enlightening, to wit: absolute necessity" compelled the President as the agent of
MR. OPLE. May I answer that on behalf of the people to act as he did, there being no interim National
Chairman Nolledo. Commissioner Yusup Assembly to propose constitutional amendments. Against
x x x [T]he fact remains that a successful political
Abubakar is right that certain definite steps have this ruling, Justices Teehankee and Muñoz Palma vigorously
and governance transition must form the core of
been taken to implement the provisions of the dissented. The Court's concern at present, however, is not
any post-conflict peace-building mission. As we
Tripoli Agreement with respect to an with regard to the point on which it was then divided in that
have observed in Liberia and Haiti over the last ten
autonomous region in Mindanao. This is a controversial case, but on that which was not disputed by
years, conflict cessation without modification of the
good first step, but there is no question that either side.
political environment, even where state-building is
this is merely a partial response to the Tripoli
undertaken through technical electoral assistance
Agreement itself and to the fuller standard of
and institution- or capacity-building, is unlikely to Justice Teehankee's dissent,175 in particular, bears noting.
regional autonomy contemplated in that
succeed. On average, more than 50 percent of While he disagreed that the President may directly submit
agreement, and now by state
states emerging from conflict return to conflict. proposed constitutional amendments to a referendum,
policy.173(Emphasis supplied)
Moreover, a substantial proportion of transitions implicit in his opinion is a recognition that he would have
have resulted in weak or limited democracies. upheld the President's action along with the majority had the
The constitutional provisions on autonomy and the statutes President convened the interim National Assembly and
enacted pursuant to them have, to the credit of their drafters, coursed his proposals through it. Thus Justice Teehankee
The design of a constitution and its constitution-
been partly successful. Nonetheless, the Filipino people are opined:
making process can play an important role in the
still faced with the reality of an on-going conflict between the
political and governance transition. Constitution-
Government and the MILF. If the President is to be expected
making after conflict is an opportunity to create a "Since the Constitution provides for the
to find means for bringing this conflict to an end and to
common vision of the future of a state and a road organization of the essential departments of
achieve lasting peace in Mindanao, then she must be given
map on how to get there. The constitution can be government, defines and delimits the powers of
the leeway to explore, in the course of peace negotiations,
partly a peace agreement and partly a framework each and prescribes the manner of the exercise of
such powers, and the constituent power has not amendments and revision, her mere recommendation need "consensus points" and, notably, the deadline for effecting
been granted to but has been withheld from the not be construed as an unconstitutional act. the contemplated changes to the legal framework.
President or Prime Minister, it follows that the
President's questioned decrees proposing and
The foregoing discussion focused on the President's Plainly, stipulation-paragraph 7 on GOVERNANCE
submitting constitutional amendments directly to
authority to propose constitutional amendments, since her is inconsistent with the limits of the President's authority
the people (without the intervention of the
authority to propose new legislation is not in controversy. It to propose constitutional amendments, it being a virtual
interim National Assembly in whom the power
has been an accepted practice for Presidents in this guarantee that the Constitution and the laws of the Republic
is expressly vested) are devoid of constitutional
jurisdiction to propose new legislation. One of the more of the Philippines will certainly be adjusted to conform to all
and legal basis."176 (Emphasis supplied)
prominent instances the practice is usually done is in the the "consensus points" found in the MOA-AD. Hence, it must
yearly State of the Nation Address of the President to be struck down as unconstitutional.
From the foregoing discussion, the principle may be inferred Congress. Moreover, the annual general appropriations bill
that the President - in the course of conducting peace has always been based on the budget prepared by the
A comparison between the "suspensive clause" of the MOA-
negotiations - may validly consider implementing even those President, which - for all intents and purposes - is a proposal
AD with a similar provision appearing in the 1996 final peace
policies that require changes to the Constitution, but she for new legislation coming from the President.179
agreement between the MNLF and the GRP is most
may not unilaterally implement them without the
instructive.
intervention of Congress, or act in any way as if the
The "suspensive clause" in the MOA-AD viewed in light
assent of that body were assumed as a certainty.
of the above-discussed standards
As a backdrop, the parties to the 1996 Agreement stipulated
that it would be implemented in two phases. Phase Icovered
Since, under the present Constitution, the people also have
Given the limited nature of the President's authority to a three-year transitional period involving the putting up of
the power to directly propose amendments through initiative
propose constitutional amendments, she cannot new administrative structures through Executive Order, such
and referendum, the President may also submit her
guaranteeto any third party that the required amendments as the Special Zone of Peace and Development (SZOPAD)
recommendations to the people, not as a formal proposal to
will eventually be put in place, nor even be submitted to a and the Southern Philippines Council for Peace and
be voted on in a plebiscite similar to what President Marcos
plebiscite. The most she could do is submit these proposals Development (SPCPD), while Phase II covered the
did in Sanidad, but for their independent consideration of
as recommendations either to Congress or the people, in establishment of the new regional autonomous
whether these recommendations merit being formally
whom constituent powers are vested. government through amendment or repeal of R.A. No. 6734,
proposed through initiative.
which was then the Organic Act of the ARMM.
Paragraph 7 on Governance of the MOA-AD states,
These recommendations, however, may amount to nothing
however, that all provisions thereof which cannot be The stipulations on Phase II consisted of specific
more than the President's suggestions to the people, for any
reconciled with the present Constitution and laws "shall agreements on the structure of the expanded autonomous
further involvement in the process of initiative by the Chief
come into force upon signing of a Comprehensive Compact region envisioned by the parties. To that extent, they are
Executive may vitiate its character as a genuine
and upon effecting the necessary changes to the legal similar to the provisions of the MOA-AD. There is, however,
"people's initiative." The only initiative recognized by the
framework." This stipulation does not bear the marks of a a crucial difference between the two agreements. While the
Constitution is that which truly proceeds from the people. As
suspensive condition - defined in civil law as a future MOA-AD virtually guarantees that the "necessary
the Court stated in Lambino v. COMELEC:177
and uncertain event - but of a term. It is not a question changes to the legal framework" will be put in place, the
of whether the necessary changes to the legal framework GRP-MNLF final peace agreement states thus: "Accordingly,
"The Lambino Group claims that their initiative is will be effected, but when. That there is no uncertainty being these provisions [on Phase II] shall be recommended by the
the ‘people's voice.' However, the Lambino Group contemplated is plain from what follows, for the paragraph GRP to Congress for incorporation in the amendatory or
unabashedly states in ULAP Resolution No. 2006- goes on to state that the contemplated changes shall be repealing law."
02, in the verification of their petition with the "with due regard to non derogation of prior
COMELEC, that ‘ULAP maintains its unqualified agreements and within the stipulated timeframe to be
Concerns have been raised that the MOA-AD would have
support to the agenda of Her Excellency President contained in the Comprehensive Compact."
given rise to a binding international law obligation on the part
Gloria Macapagal-Arroyo for constitutional
of the Philippines to change its Constitution in conformity
reforms.' The Lambino Group thus admits that
Pursuant to this stipulation, therefore, it is mandatory for the thereto, on the ground that it may be considered either as a
their ‘people's' initiative is an ‘unqualified support
GRP to effect the changes to the legal framework binding agreement under international law, or a unilateral
to the agenda' of the incumbent President to
contemplated in the MOA-AD - which changes would include declaration of the Philippine government to the international
change the Constitution. This forewarns the Court
constitutional amendments, as discussed earlier. It bears community that it would grant to the Bangsamoro people all
to be wary of incantations of ‘people's voice' or
noting that, the concessions therein stated. Neither ground finds
‘sovereign will' in the present initiative."
sufficient support in international law, however.
By the time these changes are put in place, the MOA-AD
It will be observed that the President has authority, as stated
itself would be counted among the "prior agreements" The MOA-AD, as earlier mentioned in the overview thereof,
in her oath of office,178 only to preserve and defend the
from which there could be no derogation. would have included foreign dignitaries as signatories. In
Constitution. Such presidential power does not, however,
addition, representatives of other nations were invited to
extend to allowing her to change the Constitution, but simply
witness its signing in Kuala Lumpur. These circumstances
to recommend proposed amendments or revision. As long as What remains for discussion in the Comprehensive Compact
readily lead one to surmise that the MOA-AD would have
she limits herself to recommending these changes and would merely be the implementing details for these
had the status of a binding international agreement had it
submits to the proper procedure for constitutional
been signed. An examination of the prevailing principles in xxxx the same status as one which settles an
international law, however, leads to the contrary conclusion. international armed conflict which, essentially,
must be between two or more warring States.
40. Almost every conflict resolution will involve the
The Lomé Agreement cannot be characterised
The Decision on Challenge to Jurisdiction: Lomé Accord parties to the conflict and the mediator or facilitator
as an international instrument. x x x" (Emphasis,
Amnesty180 (the Lomé Accord case) of the Special Court of of the settlement, or persons or bodies under
italics and underscoring supplied)
Sierra Leone is enlightening. The Lomé Accord was a peace whose auspices the settlement took place but who
agreement signed on July 7, 1999 between the Government are not at all parties to the conflict, are not
of Sierra Leone and the Revolutionary United Front (RUF), a contracting parties and who do not claim any Similarly, that the MOA-AD would have been signed by
rebel group with which the Sierra Leone Government had obligation from the contracting parties or incur any representatives of States and international organizations not
been in armed conflict for around eight years at the time of obligation from the settlement. parties to the Agreement would not have sufficed to vest in it
signing. There were non-contracting signatories to the a binding character under international law.
agreement, among which were the Government of the
41. In this case, the parties to the conflict are
Togolese Republic, the Economic Community of West
the lawful authority of the State and the RUF In another vein, concern has been raised that the MOA-AD
African States, and the UN.
which has no status of statehood and is to all would amount to a unilateral declaration of the Philippine
intents and purposes a faction within the state. State, binding under international law, that it would comply
On January 16, 2002, after a successful negotiation between The non-contracting signatories of the Lomé with all the stipulations stated therein, with the result that it
the UN Secretary-General and the Sierra Leone Agreement were moral guarantors of the would have to amend its Constitution accordingly regardless
Government, another agreement was entered into by the UN principle that, in the terms of Article XXXIV of of the true will of the people. Cited as authority for this view
and that Government whereby the Special Court of Sierra the Agreement, "this peace agreement is is Australia v. France,181 also known as the Nuclear Tests
Leone was established. The sole purpose of the Special implemented with integrity and in good faith by Case, decided by the International Court of Justice (ICJ).
Court, an international court, was to try persons who bore both parties". The moral guarantors assumed
the greatest responsibility for serious violations of no legal obligation. It is recalled that the UN by
In the Nuclear Tests Case, Australia challenged before the
international humanitarian law and Sierra Leonean law its representative appended, presumably for
ICJ the legality of France's nuclear tests in the South Pacific.
committed in the territory of Sierra Leone since November avoidance of doubt, an understanding of the extent
France refused to appear in the case, but public statements
30, 1996. of the agreement to be implemented as not
from its President, and similar statements from other French
including certain international crimes.
officials including its Minister of Defence, that its 1974 series
Among the stipulations of the Lomé Accord was a provision of atmospheric tests would be its last, persuaded the ICJ to
for the full pardon of the members of the RUF with respect to 42. An international agreement in the nature of a dismiss the case.182 Those statements, the ICJ held,
anything done by them in pursuit of their objectives as treaty must create rights and obligations regulated amounted to a legal undertaking addressed to the
members of that organization since the conflict began. by international law so that a breach of its terms international community, which required no acceptance from
will be a breach determined under international other States for it to become effective.
law which will also provide principle means of
In the Lomé Accord case, the Defence argued that the
enforcement. The Lomé Agreement created
Accord created an internationally binding obligation not to Essential to the ICJ ruling is its finding that the French
neither rights nor obligations capable of being
prosecute the beneficiaries of the amnesty provided government intended to be bound to the international
regulated by international law. An agreement
therein, citing, among other things, the participation of community in issuing its public statements, viz:
such as the Lomé Agreement which brings to
foreign dignitaries and international organizations in the
an end an internal armed conflict no doubt
finalization of that agreement. The Special Court, however,
creates a factual situation of restoration of 43. It is well recognized that declarations made by
rejected this argument, ruling that the Lome Accord is not a
peace that the international community acting way of unilateral acts, concerning legal or factual
treaty and that it can only create binding obligations and
through the Security Council may take note of. situations, may have the effect of creating legal
rights between the parties in municipal law, not in
That, however, will not convert it to an obligations. Declarations of this kind may be, and
international law. Hence, the Special Court held, it is
international agreement which creates an often are, very specific. When it is the intention
ineffective in depriving an international court like it of
obligation enforceable in international, as of the State making the declaration that it
jurisdiction.
distinguished from municipal, law. A breach of should become bound according to its
the terms of such a peace agreement resulting in terms, that intention confers on the declaration
"37. In regard to the nature of a negotiated resumption of internal armed conflict or creating a the character of a legal undertaking, the State
settlement of an internal armed conflict it is easy threat to peace in the determination of the Security being thenceforth legally required to follow a
to assume and to argue with some degree of Council may indicate a reversal of the factual course of conduct consistent with the
plausibility, as Defence counsel for the situation of peace to be visited with possible legal declaration. An undertaking of this kind, if given
defendants seem to have done, that the mere consequences arising from the new situation of publicly, and with an intent to be bound, even
fact that in addition to the parties to the conflict created. Such consequences such as though not made within the context of international
conflict, the document formalizing the action by the Security Council pursuant to Chapter negotiations, is binding. In these circumstances,
settlement is signed by foreign heads of state VII arise from the situation and not from the nothing in the nature of a quid pro quo nor any
or their representatives and representatives of agreement, nor from the obligation imposed by it. subsequent acceptance of the declaration, nor
international organizations, means the Such action cannot be regarded as a remedy for even any reply or reaction from other States, is
agreement of the parties is internationalized so the breach. A peace agreement which settles required for the declaration to take effect, since
as to create obligations in international law. an internal armed conflict cannot be ascribed such a requirement would be inconsistent with the
strictly unilateral nature of the juridical act by which subject of that case was a statement made by the President to the parties to the conflict, the peace settlement is signed
the pronouncement by the State was made. of Mali, in an interview by a foreign press agency, that Mali by representatives of states and international organizations
would abide by the decision to be issued by a commission of does not mean that the agreement is internationalized so as
the Organization of African Unity on a frontier dispute then to create obligations in international law.
44. Of course, not all unilateral acts imply
pending between Mali and Burkina Faso.
obligation; but a State may choose to take up a
certain position in relation to a particular Since the commitments in the MOA-AD were not addressed
matter with the intention of being bound-the Unlike in the Nuclear Tests Case, the ICJ held that the to States, not to give legal effect to such commitments would
intention is to be ascertained by interpretation statement of Mali's President was not a unilateral act with not be detrimental to the security of international intercourse
of the act. When States make statements by legal implications. It clarified that its ruling in the Nuclear - to the trust and confidence essential in the relations among
which their freedom of action is to be limited, a Tests case rested on the peculiar circumstances surrounding States.
restrictive interpretation is called for. the French declaration subject thereof, to wit:
In one important respect, the circumstances surrounding the
xxxx 40. In order to assess the intentions of the author MOA-AD are closer to that of Burkina Faso wherein, as
of a unilateral act, account must be taken of all the already discussed, the Mali President's statement was not
factual circumstances in which the act occurred. held to be a binding unilateral declaration by the ICJ. As in
51. In announcing that the 1974 series of
For example, in the Nuclear Tests cases, the that case, there was also nothing to hinder the Philippine
atmospheric tests would be the last, the
Court took the view that since the applicant panel, had it really been its intention to be bound to other
French Government conveyed to the world at
States were not the only ones concerned at the States, to manifest that intention by formal agreement. Here,
large, including the Applicant, its intention
possible continuance of atmospheric testing that formal agreement would have come about by the
effectively to terminate these tests. It was
by the French Government, that Government's inclusion in the MOA-AD of a clear commitment to be legally
bound to assume that other States might take
unilateral declarations had ‘conveyed to the bound to the international community, not just the MILF, and
note of these statements and rely on their
world at large, including the Applicant, its by an equally clear indication that the signatures of the
being effective. The validity of these
intention effectively to terminate these participating states-representatives would constitute an
statements and their legal consequences must
tests‘ (I.C.J. Reports 1974, p. 269, para. 51; p. acceptance of that commitment. Entering into such a formal
be considered within the general framework of
474, para. 53). In the particular circumstances agreement would not have resulted in a loss of face for the
the security of international intercourse, and
of those cases, the French Government could Philippine government before the international community,
the confidence and trust which are so essential in
not express an intention to be bound otherwise which was one of the difficulties that prevented the French
the relations among States. It is from the actual
than by unilateral declarations. It is difficult to Government from entering into a formal agreement with
substance of these statements, and from the
see how it could have accepted the terms of a other countries. That the Philippine panel did not enter into
circumstances attending their making, that the
negotiated solution with each of the applicants such a formal agreement suggests that it had no intention to
legal implications of the unilateral act must be
without thereby jeopardizing its contention be bound to the international community. On that ground, the
deduced. The objects of these statements are
that its conduct was lawful. The circumstances MOA-AD may not be considered a unilateral declaration
clear and they were addressed to the
of the present case are radically under international law.
international community as a whole, and the
different. Here, there was nothing to hinder the
Court holds that they constitute an
Parties from manifesting an intention to accept
undertaking possessing legal effect. The Court The MOA-AD not being a document that can bind the
the binding character of the conclusions of the
considers *270 that the President of the Republic, Philippines under international law notwithstanding,
Organization of African Unity Mediation
in deciding upon the effective cessation of respondents' almost consummated act of guaranteeing
Commission by the normal method: a formal
atmospheric tests, gave an undertaking to the amendments to the legal framework is, by itself,
agreement on the basis of reciprocity. Since no
international community to which his words were sufficient to constitute grave abuse of discretion. The
agreement of this kind was concluded between the
addressed. x x x (Emphasis and underscoring grave abuse lies not in the fact that they considered, as a
Parties, the Chamber finds that there are no
supplied) solution to the Moro Problem, the creation of a state within a
grounds to interpret the declaration made by Mali's
state, but in their brazen willingness to guarantee that
head of State on 11 April 1975 as a unilateral act
Congress and the sovereign Filipino people would give
As gathered from the above-quoted ruling of the ICJ, public with legal implications in regard to the present
their imprimatur to their solution. Upholding such an act
statements of a state representative may be construed as case. (Emphasis and underscoring supplied)
would amount to authorizing a usurpation of the constituent
a unilateral declaration only when the following conditions
powers vested only in Congress, a Constitutional
are present: the statements were clearly addressed to the
Assessing the MOA-AD in light of the above criteria, it would Convention, or the people themselves through the process of
international community, the state intended to be bound to
not have amounted to a unilateral declaration on the part of initiative, for the only way that the Executive can ensure the
that community by its statements, and that not to give legal
the Philippine State to the international community. The outcome of the amendment process is through an undue
effect to those statements would be detrimental to the
Philippine panel did not draft the same with the clear influence or interference with that process.
security of international intercourse. Plainly, unilateral
intention of being bound thereby to the international
declarations arise only in peculiar circumstances.
community as a whole or to any State, but only to the MILF.
The sovereign people may, if it so desired, go to the extent
While there were States and international organizations
of giving up a portion of its own territory to the Moros for the
The limited applicability of the Nuclear Tests Case ruling was involved, one way or another, in the negotiation and
sake of peace, for it can change the Constitution in any it
recognized in a later case decided by the ICJ projected signing of the MOA-AD, they participated merely
wants, so long as the change is not inconsistent with what, in
entitled Burkina Faso v. Mali,183 also known as the Case as witnesses or, in the case of Malaysia, as facilitator. As
Concerning the Frontier Dispute. The public declaration held in the Lomé Accord case, the mere fact that in addition
international law, is known as Jus Cogens.184 Respondents, only to reasonable safeguards or limitations as may be unconditionally disclosed the official copies of the final draft
however, may not preempt it in that decision. provided by law. of the MOA-AD, for judicial compliance and public scrutiny.

SUMMARY The contents of the MOA-AD is a matter of paramount public In sum, the Presidential Adviser on the Peace Process
concern involving public interest in the highest order. In committed grave abuse of discretion when he failed to carry
declaring that the right to information contemplates steps out the pertinent consultation process, as mandated by E.O.
The petitions are ripe for adjudication. The failure of
and negotiations leading to the consummation of the No. 3, Republic Act No. 7160, and Republic Act No. 8371.
respondents to consult the local government units or
contract, jurisprudence finds no distinction as to the The furtive process by which the MOA-AD was designed and
communities affected constitutes a departure by respondents
executory nature or commercial character of the agreement. crafted runs contrary to and in excess of the legal authority,
from their mandate under E.O. No. 3. Moreover, respondents
and amounts to a whimsical, capricious, oppressive, arbitrary
exceeded their authority by the mere act of guaranteeing
and despotic exercise thereof. It illustrates a gross evasion
amendments to the Constitution. Any alleged violation of the An essential element of these twin freedoms is to keep a
of positive duty and a virtual refusal to perform the duty
Constitution by any branch of government is a proper matter continuing dialogue or process of communication between
enjoined.
for judicial review. the government and the people. Corollary to these twin rights
is the design for feedback mechanisms. The right to public
consultation was envisioned to be a species of these public The MOA-AD cannot be reconciled with the present
As the petitions involve constitutional issues which are of
rights. Constitution and laws. Not only its specific provisions but the
paramount public interest or of transcendental importance,
very concept underlying them, namely, the associative
the Court grants the petitioners, petitioners-in-intervention
relationship envisioned between the GRP and the
and intervening respondents the requisite locus standi in At least three pertinent laws animate these constitutional
BJE, are unconstitutional, for the concept presupposes that
keeping with the liberal stance adopted in David v. imperatives and justify the exercise of the people's right to be
the associated entity is a state and implies that the same is
Macapagal-Arroyo. consulted on relevant matters relating to the peace agenda.
on its way to independence.

Contrary to the assertion of respondents that the non-signing One, E.O. No. 3 itself is replete with mechanics for
While there is a clause in the MOA-AD stating that the
of the MOA-AD and the eventual dissolution of the GRP continuing consultations on both national and local levels
provisions thereof inconsistent with the present legal
Peace Panel mooted the present petitions, the Court finds and for a principal forum for consensus-building. In fact, it is
framework will not be effective until that framework is
that the present petitions provide an exception to the "moot the duty of the Presidential Adviser on the Peace Process to
amended, the same does not cure its defect. The inclusion of
and academic" principle in view of (a) the grave violation of conduct regular dialogues to seek relevant information,
provisions in the MOA-AD establishing an associative
the Constitution involved; (b) the exceptional character of the comments, advice, and recommendations from peace
relationship between the BJE and the Central Government
situation and paramount public interest; (c) the need to partners and concerned sectors of society.
is, itself, a violation of the Memorandum of Instructions From
formulate controlling principles to guide the bench, the bar,
The President dated March 1, 2001, addressed to the
and the public; and (d) the fact that the case is capable of
Two, Republic Act No. 7160 or the Local Government Code government peace panel. Moreover, as the clause is
repetition yet evading review.
of 1991 requires all national offices to conduct consultations worded, it virtually guarantees that the necessary
before any project or program critical to the environment and amendments to the Constitution and the laws will eventually
The MOA-AD is a significant part of a series of agreements human ecology including those that may call for the eviction be put in place. Neither the GRP Peace Panel nor the
necessary to carry out the GRP-MILF Tripoli Agreement on of a particular group of people residing in such locality, is President herself is authorized to make such a guarantee.
Peace signed by the government and the MILF back in June implemented therein. The MOA-AD is one peculiar program Upholding such an act would amount to authorizing a
2001. Hence, the present MOA-AD can be renegotiated or that unequivocally and unilaterally vests ownership of a vast usurpation of the constituent powers vested only in
another one drawn up that could contain similar or territory to the Bangsamoro people, which could pervasively Congress, a Constitutional Convention, or the people
significantly dissimilar provisions compared to the original. and drastically result to the diaspora or displacement of a themselves through the process of initiative, for the only way
great number of inhabitants from their total environment. that the Executive can ensure the outcome of the
amendment process is through an undue influence or
The Court, however, finds that the prayers for mandamus interference with that process.
have been rendered moot in view of the respondents' action Three, Republic Act No. 8371 or the Indigenous Peoples
in providing the Court and the petitioners with the official Rights Act of 1997 provides for clear-cut procedure for the
copy of the final draft of the MOA-AD and its annexes. recognition and delineation of ancestral domain, which While the MOA-AD would not amount to an international
entails, among other things, the observance of the free and agreement or unilateral declaration binding on the
prior informed consent of the Indigenous Cultural Philippines under international law, respondents' act of
The people's right to information on matters of public guaranteeing amendments is, by itself, already a
Communities/Indigenous Peoples. Notably, the statute does
concern under Sec. 7, Article III of the Constitution is constitutional violation that renders the MOA-AD fatally
not grant the Executive Department or any government
in splendid symmetry with the state policy of full public
agency the power to delineate and recognize an ancestral defective.
disclosure of all its transactions involving public interest
domain claim by mere agreement or compromise.
under Sec. 28, Article II of the Constitution. The right to
information guarantees the right of the people to demand WHEREFORE, respondents' motion to dismiss is DENIED.
information, while Section 28 recognizes the duty of The invocation of the doctrine of executive privilege as a The main and intervening petitions are GIVEN DUE
officialdom to give information even if nobody demands. The defense to the general right to information or the specific COURSE and hereby GRANTED.
complete and effective exercise of the right to information right to consultation is untenable. The various explicit legal
necessitates that its complementary provision on public provisions fly in the face of executive secrecy. In any event,
disclosure derive the same self-executory nature, subject respondents effectively waived such defense after it
The Memorandum of Agreement on the Ancestral Domain The Antecedents Commenting on the petition, respondent officials raised
Aspect of the GRP-MILF Tripoli Agreement on Peace of threshold issues questioning (1) the petition’s compliance
2001 is declared contrary to law and the Constitution. with the case or controversy requirement for judicial review
In 1961, Congress passed Republic Act No. 3046 (RA
grounded on petitioners’ alleged lack of locus standi and (2)
3046)2 demarcating the maritime baselines of the Philippines
the propriety of the writs of certiorari and prohibition to assail
SO ORDERED. as an archipelagic State.3 This law followed the framing of
the constitutionality of RA 9522. On the merits, respondents
the Convention on the Territorial Sea and the Contiguous
defended RA 9522 as the country’s compliance with the
Zone in 1958 (UNCLOS I),4 codifying, among others, the
G.R No. 187167 August 16, 2011 terms of UNCLOS III, preserving Philippine territory over the
sovereign right of States parties over their "territorial sea,"
KIG or Scarborough Shoal. Respondents add that RA 9522
the breadth of which, however, was left undetermined.
does not undermine the country’s security, environment and
PROF. MERLIN M. MAGALLONA, AKBAYAN PARTY- Attempts to fill this void during the second round of
economic interests or relinquish the Philippines’ claim over
LIST REP. RISA HONTIVEROS, PROF. HARRY C. negotiations in Geneva in 1960 (UNCLOS II) proved futile.
Sabah.
ROQUE, JR., AND UNIVERSITY OF THE PHILIPPINES Thus, domestically, RA 3046 remained unchanged for nearly
COLLEGE OF LAW STUDENTS, ALITHEA BARBARA five decades, save for legislation passed in 1968 (Republic
ACAS, VOLTAIRE ALFERES, CZARINA MAY ALTEZ, Act No. 5446 [RA 5446]) correcting typographical errors and Respondents also question the normative force, under
FRANCIS ALVIN ASILO, SHERYL BALOT, RUBY AMOR reserving the drawing of baselines around Sabah in North international law, of petitioners’ assertion that what Spain
BARRACA, JOSE JAVIER BAUTISTA, ROMINA Borneo. ceded to the United States under the Treaty of Paris were
BERNARDO, VALERIE PAGASA BUENAVENTURA, the islands and all the waters found within the boundaries of
EDAN MARRI CAÑETE, VANN ALLEN DELA CRUZ, the rectangular area drawn under the Treaty of Paris.
In March 2009, Congress amended RA 3046 by enacting RA
RENE DELORINO, PAULYN MAY DUMAN, SHARON
9522, the statute now under scrutiny. The change was
ESCOTO, RODRIGO FAJARDO III, GIRLIE FERRER,
prompted by the need to make RA 3046 compliant with the We left unacted petitioners’ prayer for an injunctive writ.
RAOULLE OSEN FERRER, CARLA REGINA GREPO,
terms of the United Nations Convention on the Law of the
ANNA MARIE CECILIA GO, IRISH KAY KALAW, MARY
Sea (UNCLOS III),5 which the Philippines ratified on 27
ANN JOY LEE, MARIA LUISA MANALAYSAY, MIGUEL The Issues
February 1984.6 Among others, UNCLOS III prescribes the
RAFAEL MUSNGI, MICHAEL OCAMPO, JAKLYN HANNA
water-land ratio, length, and contour of baselines of
PINEDA, WILLIAM RAGAMAT, MARICAR RAMOS, ENRIK
archipelagic States like the Philippines7 and sets the The petition raises the following issues:
FORT REVILLAS, JAMES MARK TERRY RIDON,
deadline for the filing of application for the extended
JOHANN FRANTZ RIVERA IV, CHRISTIAN RIVERO,
continental shelf.8 Complying with these requirements, RA
DIANNE MARIE ROA, NICHOLAS SANTIZO, MELISSA
9522 shortened one baseline, optimized the location of some 1. Preliminarily –
CHRISTINA SANTOS, CRISTINE MAE TABING,
basepoints around the Philippine archipelago and classified
VANESSA ANNE TORNO, MARIA ESTER VANGUARDIA,
adjacent territories, namely, the Kalayaan Island Group 1. Whether petitioners possess locus
and MARCELINO VELOSO III, Petitioners,
(KIG) and the Scarborough Shoal, as "regimes of islands" standi to bring this suit; and
vs.
whose islands generate their own applicable maritime zones.
HON. EDUARDO ERMITA, IN HIS CAPACITY AS
EXECUTIVE SECRETARY, HON. ALBERTO ROMULO, IN 2. Whether the writs of certiorari and
HIS CAPACITY AS SECRETARY OF THE DEPARTMENT Petitioners, professors of law, law students and a legislator, prohibition are the proper remedies to
OF FOREIGN AFFAIRS, HON. ROLANDO ANDAYA, IN in their respective capacities as "citizens, taxpayers or x x x assail the constitutionality of RA 9522.
HIS CAPACITY AS SECRETARY OF THE DEPARTMENT legislators,"9 as the case may be, assail the constitutionality
OF BUDGET AND MANAGEMENT, HON. DIONY of RA 9522 on two principal grounds, namely: (1) RA 9522
VENTURA, IN HIS CAPACITY AS ADMINISTRATOR OF reduces Philippine maritime territory, and logically, the reach 2. On the merits, whether RA 9522 is
THE NATIONAL MAPPING & RESOURCE INFORMATION of the Philippine state’s sovereign power, in violation of unconstitutional.
AUTHORITY, and HON. HILARIO DAVIDE, JR., IN HIS Article 1 of the 1987 Constitution,10 embodying the terms of
CAPACITY AS REPRESENTATIVE OF THE PERMANENT the Treaty of Paris11 and ancillary treaties,12 and (2) RA 9522 The Ruling of the Court
MISSION OF THE REPUBLIC OF THE PHILIPPINES TO opens the country’s waters landward of the baselines to
THE UNITED NATIONS,Respondents. maritime passage by all vessels and aircrafts, undermining
Philippine sovereignty and national security, contravening On the threshold issues, we hold that (1) petitioners
the country’s nuclear-free policy, and damaging marine possess locus standi to bring this suit as citizens and (2) the
DECISION writs of certiorari and prohibition are proper remedies to test
resources, in violation of relevant constitutional provisions.13
the constitutionality of RA 9522. On the merits, we find no
CARPIO, J.: basis to declare RA 9522 unconstitutional.
In addition, petitioners contend that RA 9522’s treatment of
the KIG as "regime of islands" not only results in the loss of a
The Case large maritime area but also prejudices the livelihood of On the Threshold Issues
subsistence fishermen.14 To buttress their argument of Petitioners Possess Locus
territorial diminution, petitioners facially attack RA 9522 for Standi as Citizens
This original action for the writs of certiorari and prohibition what it excluded and included – its failure to reference either
assails the constitutionality of Republic Act No. 95221(RA the Treaty of Paris or Sabah and its use of UNCLOS III’s
9522) adjusting the country’s archipelagic baselines and Petitioners themselves undermine their assertion of locus
framework of regime of islands to determine the maritime standi as legislators and taxpayers because the petition
classifying the baseline regime of nearby territories. zones of the KIG and the Scarborough Shoal. alleges neither infringement of legislative prerogative15 nor
misuse of public funds,16 occasioned by the passage and technical description, Philippine sovereignty over territorial draw the baselines in conformity with UNCLOS III. The
implementation of RA 9522. Nonetheless, we recognize waters extends hundreds of nautical miles around the baselines cannot be drawn from the boundaries or other
petitioners’ locus standi as citizens with constitutionally Philippine archipelago, embracing the rectangular area portions of the rectangular area delineated in the Treaty of
sufficient interest in the resolution of the merits of the case delineated in the Treaty of Paris.22 Paris, but from the "outermost islands and drying reefs of the
which undoubtedly raises issues of national significance archipelago."24
necessitating urgent resolution. Indeed, owing to the peculiar
Petitioners’ theory fails to persuade us.
nature of RA 9522, it is understandably difficult to find other
UNCLOS III and its ancillary baselines laws play no role in
litigants possessing "a more direct and specific interest" to
the acquisition, enlargement or, as petitioners claim,
bring the suit, thus satisfying one of the requirements for UNCLOS III has nothing to do with the acquisition (or loss) of
diminution of territory. Under traditional international law
granting citizenship standing.17 territory. It is a multilateral treaty regulating, among others,
typology, States acquire (or conversely, lose) territory
sea-use rights over maritime zones (i.e., the territorial waters
through occupation, accretion, cession and
[12 nautical miles from the baselines], contiguous zone [24
The Writs of Certiorari and Prohibition prescription,25 not by executing multilateral treaties on the
nautical miles from the baselines], exclusive economic zone
Are Proper Remedies to Test regulations of sea-use rights or enacting statutes to comply
[200 nautical miles from the baselines]), and continental
the Constitutionality of Statutes with the treaty’s terms to delimit maritime zones and
shelves that UNCLOS III delimits.23 UNCLOS III was the
continental shelves. Territorial claims to land features are
culmination of decades-long negotiations among United
outside UNCLOS III, and are instead governed by the rules
In praying for the dismissal of the petition on preliminary Nations members to codify norms regulating the conduct of
on general international law.26
grounds, respondents seek a strict observance of the offices States in the world’s oceans and submarine areas,
of the writs of certiorari and prohibition, noting that the writs recognizing coastal and archipelagic States’ graduated
cannot issue absent any showing of grave abuse of authority over a limited span of waters and submarine lands RA 9522’s Use of the Framework
discretion in the exercise of judicial, quasi-judicial or along their coasts. of Regime of Islands to Determine the
ministerial powers on the part of respondents and resulting Maritime Zones of the KIG and the
prejudice on the part of petitioners.18 Scarborough Shoal, not Inconsistent
On the other hand, baselines laws such as RA 9522 are
with the Philippines’ Claim of Sovereignty
enacted by UNCLOS III States parties to mark-out specific
Over these Areas
Respondents’ submission holds true in ordinary civil basepoints along their coasts from which baselines are
proceedings. When this Court exercises its constitutional drawn, either straight or contoured, to serve as geographic
power of judicial review, however, we have, by tradition, starting points to measure the breadth of the maritime zones Petitioners next submit that RA 9522’s use of UNCLOS III’s
viewed the writs of certiorari and prohibition as proper and continental shelf. Article 48 of UNCLOS III on regime of islands framework to draw the baselines, and to
remedial vehicles to test the constitutionality of archipelagic States like ours could not be any clearer: measure the breadth of the applicable maritime zones of the
statutes,19 and indeed, of acts of other branches of KIG, "weakens our territorial claim" over that
government.20 Issues of constitutional import are sometimes area.27Petitioners add that the KIG’s (and Scarborough
Article 48. Measurement of the breadth of the territorial sea,
crafted out of statutes which, while having no bearing on the Shoal’s) exclusion from the Philippine archipelagic baselines
the contiguous zone, the exclusive economic zone and the
personal interests of the petitioners, carry such relevance in results in the loss of "about 15,000 square nautical miles of
continental shelf. – The breadth of the territorial sea, the
the life of this nation that the Court inevitably finds itself territorial waters," prejudicing the livelihood of subsistence
contiguous zone, the exclusive economic zone and the
constrained to take cognizance of the case and pass upon fishermen.28 A comparison of the configuration of the
continental shelf shall be measured from archipelagic
the issues raised, non-compliance with the letter of baselines drawn under RA 3046 and RA 9522 and the extent
baselines drawn in accordance with article 47. (Emphasis
procedural rules notwithstanding. The statute sought to be of maritime space encompassed by each law, coupled with a
supplied)
reviewed here is one such law. reading of the text of RA 9522 and its congressional
deliberations, vis-à-vis the Philippines’ obligations under
Thus, baselines laws are nothing but statutory mechanisms UNCLOS III, belie this view.1avvphi1
RA 9522 is Not Unconstitutional
for UNCLOS III States parties to delimit with precision the
RA 9522 is a Statutory Tool
extent of their maritime zones and continental shelves. In
to Demarcate the Country’s The configuration of the baselines drawn under RA 3046 and
turn, this gives notice to the rest of the international
Maritime Zones and Continental RA 9522 shows that RA 9522 merely followed the
community of the scope of the maritime space and
Shelf Under UNCLOS III, not to basepoints mapped by RA 3046, save for at least nine
submarine areas within which States parties exercise treaty-
Delineate Philippine Territory basepoints that RA 9522 skipped to optimize the location of
based rights, namely, the exercise of sovereignty over
basepoints and adjust the length of one baseline (and thus
territorial waters (Article 2), the jurisdiction to enforce
comply with UNCLOS III’s limitation on the maximum length
Petitioners submit that RA 9522 "dismembers a large portion customs, fiscal, immigration, and sanitation laws in the
of baselines). Under RA 3046, as under RA 9522, the KIG
of the national territory"21 because it discards the pre- contiguous zone (Article 33), and the right to exploit the living
and the Scarborough Shoal lie outside of the baselines
UNCLOS III demarcation of Philippine territory under the and non-living resources in the exclusive economic zone
drawn around the Philippine archipelago. This undeniable
Treaty of Paris and related treaties, successively encoded in (Article 56) and continental shelf (Article 77).
cartographic fact takes the wind out of petitioners’ argument
the definition of national territory under the 1935, 1973 and
branding RA 9522 as a statutory renunciation of the
1987 Constitutions. Petitioners theorize that this
Even under petitioners’ theory that the Philippine territory Philippines’ claim over the KIG, assuming that baselines are
constitutional definition trumps any treaty or statutory
embraces the islands and all the waters within the relevant for this purpose.
provision denying the Philippines sovereign control over
rectangular area delimited in the Treaty of Paris, the
waters, beyond the territorial sea recognized at the time of
baselines of the Philippines would still have to be drawn in
the Treaty of Paris, that Spain supposedly ceded to the Petitioners’ assertion of loss of "about 15,000 square
accordance with RA 9522 because this is the only way to
United States. Petitioners argue that from the Treaty of Paris’ nautical miles of territorial waters" under RA 9522 is similarly
unfounded both in fact and law. On the contrary, RA 9522, SEC. 2. The baselines in the following areas over which the
by optimizing the location of basepoints, increased the Philippines likewise exercises sovereignty and
Philippines’ total maritime space (covering its internal waters, jurisdiction shall be determined as "Regime of Islands"
territorial sea and exclusive economic zone) by 145,216 under the Republic of the Philippines consistent with Article
square nautical miles, as shown in the table below:29 121 of the United Nations Convention on the Law of the Sea
(UNCLOS):

Extent of maritime area


using RA 3046, as Extent of maritime area a) The Kalayaan Island Group as constituted
amended, taking into using RA 9522, taking into under Presidential Decree No. 1596 and
account the Treaty of Paris’ account UNCLOS III (in
delimitation (in square square nautical miles) b) Bajo de Masinloc, also known as Scarborough
nautical miles) Shoal. (Emphasis supplied)
Internal or archipelagic
waters 166,858 171,435 Had Congress in RA 9522 enclosed the KIG and the
Scarborough Shoal as part of the Philippine archipelago,
Territorial Sea 274,136 32,106 adverse legal effects would have ensued. The Philippines
would have committed a breach of two provisions of
Exclusive Economic UNCLOS III. First, Article 47 (3) of UNCLOS III requires that
Zone 382,669 "[t]he drawing of such baselines shall not depart to any
appreciable extent from the general configuration of the
TOTAL 440,994 586,210 archipelago." Second, Article 47 (2) of UNCLOS III requires
Thus, as the map below shows, the reach of the exclusive that "the length of the baselines shall not exceed 100
economic zone drawn under RA 9522 even extends way nautical miles," save for three per cent (3%) of the total
beyond the waters covered by the rectangular demarcation number of baselines which can reach up to 125 nautical
under the Treaty of Paris. Of course, where there are miles.31
overlapping exclusive economic zones of opposite or
adjacent States, there will have to be a delineation of
Although the Philippines has consistently claimed
maritime boundaries in accordance with UNCLOS III.30
sovereignty over the KIG32 and the Scarborough Shoal for
several decades, these outlying areas are located at an
appreciable distance from the nearest shoreline of the
Philippine archipelago,33 such that any straight baseline
loped around them from the nearest basepoint will inevitably
"depart to an appreciable extent from the general
configuration of the archipelago."

The principal sponsor of RA 9522 in the Senate, Senator


Miriam Defensor-Santiago, took pains to emphasize the
foregoing during the Senate deliberations:

What we call the Kalayaan Island Group or what the rest of


the world call[] the Spratlys and the Scarborough Shoal are
outside our archipelagic baseline because if we put them
inside our baselines we might be accused of violating the
provision of international law which states: "The drawing of
such baseline shall not depart to any appreciable extent from
the general configuration of the archipelago." So sa loob ng
ating baseline, dapat magkalapit ang mga islands. Dahil
Further, petitioners’ argument that the KIG now lies outside malayo ang Scarborough Shoal, hindi natin masasabing
Philippine territory because the baselines that RA 9522 malapit sila sa atin although we are still allowed by
draws do not enclose the KIG is negated by RA 9522 itself. international law to claim them as our own.
Section 2 of the law commits to text the Philippines’
continued claim of sovereignty and jurisdiction over the KIG
This is called contested islands outside our configuration.
and the Scarborough Shoal:
We see that our archipelago is defined by the orange line
which [we] call[] archipelagic baseline. Ngayon, tingnan
ninyo ang maliit na circle doon sa itaas, that is Scarborough
Shoal, itong malaking circle sa ibaba, that is Kalayaan Group islands," whose islands generate their own applicable bed and subsoil, and the resources contained
or the Spratlys. Malayo na sila sa ating archipelago kaya maritime zones.37 therein.
kung ilihis pa natin ang dating archipelagic baselines para
lamang masama itong dalawang circles, hindi na sila
Statutory Claim Over Sabah under xxxx
magkalapit at baka hindi na tatanggapin ng United Nations
RA 5446 Retained
because of the rule that it should follow the natural
configuration of the archipelago.34 (Emphasis supplied) 4. The regime of archipelagic sea lanes passage
Petitioners’ argument for the invalidity of RA 9522 for its established in this Part shall not in other
failure to textualize the Philippines’ claim over Sabah in respects affect the status of the archipelagic
Similarly, the length of one baseline that RA 3046 drew
North Borneo is also untenable. Section 2 of RA 5446, which waters, including the sea lanes, or the exercise
exceeded UNCLOS III’s limits.1avvphi1 The need to shorten
RA 9522 did not repeal, keeps open the door for drawing the by the archipelagic State of its sovereignty
this baseline, and in addition, to optimize the location of
baselines of Sabah: over such waters and their air space, bed and
basepoints using current maps, became imperative as
subsoil, and the resources contained therein.
discussed by respondents:
(Emphasis supplied)
Section 2. The definition of the baselines of the territorial sea
of the Philippine Archipelago as provided in this Act is
[T]he amendment of the baselines law was necessary to
without prejudice to the delineation of the baselines of The fact of sovereignty, however, does not preclude the
enable the Philippines to draw the outer limits of its maritime
the territorial sea around the territory of Sabah, situated operation of municipal and international law norms
zones including the extended continental shelf in the manner
in North Borneo, over which the Republic of the subjecting the territorial sea or archipelagic waters to
provided by Article 47 of [UNCLOS III]. As defined by R.A.
Philippines has acquired dominion and sovereignty. necessary, if not marginal, burdens in the interest of
3046, as amended by R.A. 5446, the baselines suffer from
(Emphasis supplied) maintaining unimpeded, expeditious international navigation,
some technical deficiencies, to wit:
consistent with the international law principle of freedom of
navigation. Thus, domestically, the political branches of the
UNCLOS III and RA 9522 not
1. The length of the baseline across Moro Gulf Philippine government, in the competent discharge of their
Incompatible with the Constitution’s
(from Middle of 3 Rock Awash to Tongquil Point) is constitutional powers, may pass legislation designating
Delineation of Internal Waters
140.06 nautical miles x x x. This exceeds the routes within the archipelagic waters to regulate innocent
maximum length allowed under Article 47(2) of the and sea lanes passage.40 Indeed, bills drawing nautical
[UNCLOS III], which states that "The length of As their final argument against the validity of RA 9522, highways for sea lanes passage are now pending in
such baselines shall not exceed 100 nautical petitioners contend that the law unconstitutionally "converts" Congress.41
miles, except that up to 3 per cent of the total internal waters into archipelagic waters, hence subjecting
number of baselines enclosing any archipelago these waters to the right of innocent and sea lanes passage
In the absence of municipal legislation, international law
may exceed that length, up to a maximum length under UNCLOS III, including overflight. Petitioners
norms, now codified in UNCLOS III, operate to grant
of 125 nautical miles." extrapolate that these passage rights indubitably expose
innocent passage rights over the territorial sea or
Philippine internal waters to nuclear and maritime pollution
archipelagic waters, subject to the treaty’s limitations and
hazards, in violation of the Constitution.38
2. The selection of basepoints is not optimal. At conditions for their exercise.42 Significantly, the right of
least 9 basepoints can be skipped or deleted from innocent passage is a customary international law,43 thus
the baselines system. This will enclose an Whether referred to as Philippine "internal waters" under automatically incorporated in the corpus of Philippine
additional 2,195 nautical miles of water. Article I of the Constitution39 or as "archipelagic waters" law.44 No modern State can validly invoke its sovereignty to
under UNCLOS III (Article 49 [1]), the Philippines exercises absolutely forbid innocent passage that is exercised in
sovereignty over the body of water lying landward of the accordance with customary international law without risking
3. Finally, the basepoints were drawn from maps
baselines, including the air space over it and the submarine retaliatory measures from the international community.
existing in 1968, and not established by geodetic
areas underneath. UNCLOS III affirms this:
survey methods. Accordingly, some of the points,
particularly along the west coasts of Luzon down The fact that for archipelagic States, their archipelagic
to Palawan were later found to be located either Article 49. Legal status of archipelagic waters, of the air waters are subject to both the right of innocent passage and
inland or on water, not on low-water line and space over archipelagic waters and of their bed and subsoil. sea lanes passage45 does not place them in lesser
drying reefs as prescribed by Article 47.35 – footing vis-à-vis continental coastal States which are subject,
in their territorial sea, to the right of innocent passage and
the right of transit passage through international straits. The
Hence, far from surrendering the Philippines’ claim over the 1. The sovereignty of an archipelagic State
imposition of these passage rights through archipelagic
KIG and the Scarborough Shoal, Congress’ decision to extends to the waters enclosed by the
waters under UNCLOS III was a concession by archipelagic
classify the KIG and the Scarborough Shoal as "‘Regime[s] archipelagic baselines drawn in accordance with
States, in exchange for their right to claim all the waters
of Islands’ under the Republic of the Philippines consistent article 47, described as archipelagic waters, landward of their baselines, regardless of their depth or
with Article 121"36 of UNCLOS III manifests the Philippine regardless of their depth or distance from the distance from the coast, as archipelagic waters subject to
State’s responsible observance of its pacta sunt coast.
their territorial sovereignty. More importantly, the recognition
servanda obligation under UNCLOS III. Under Article 121 of
of archipelagic States’ archipelago and the waters enclosed
UNCLOS III, any "naturally formed area of land, surrounded
2. This sovereignty extends to the air space by their baselines as one cohesive entity prevents the
by water, which is above water at high tide," such as portions
over the archipelagic waters, as well as to their treatment of their islands as separate islands under
of the KIG, qualifies under the category of "regime of
UNCLOS III.46 Separate islands generate their own maritime
zones, placing the waters between islands separated by is recipe for a two-fronted disaster: first, it sends an open belonging to the UP to satisfy the writ of execution issued to
more than 24 nautical miles beyond the States’ territorial invitation to the seafaring powers to freely enter and exploit enforce the already final and executory judgment against the
sovereignty, subjecting these waters to the rights of other the resources in the waters and submarine areas around our UP.
States under UNCLOS III.47 archipelago; and second, it weakens the country’s case in
any international dispute over Philippine maritime space.
Antecedents
These are consequences Congress wisely avoided.
Petitioners’ invocation of non-executory constitutional
provisions in Article II (Declaration of Principles and State
On August 30, 1990, the UP, through its then President Jose
Policies)48 must also fail. Our present state of jurisprudence The enactment of UNCLOS III compliant baselines law for
V. Abueva, entered into a General Construction Agreement
considers the provisions in Article II as mere legislative the Philippine archipelago and adjacent areas, as embodied
with respondent Stern Builders Corporation (Stern Builders),
guides, which, absent enabling legislation, "do not embody in RA 9522, allows an internationally-recognized delimitation
represented by its President and General Manager
judicially enforceable constitutional rights x x x."49 Article II of the breadth of the Philippines’ maritime zones and
Servillano dela Cruz, for the construction of the extension
provisions serve as guides in formulating and interpreting continental shelf. RA 9522 is therefore a most vital step on
building and the renovation of the College of Arts and
implementing legislation, as well as in interpreting executory the part of the Philippines in safeguarding its maritime zones,
Sciences Building in the campus of the University of the
provisions of the Constitution. Although Oposa v. consistent with the Constitution and our national interest.
Philippines in Los Baños (UPLB).3
Factoran50 treated the right to a healthful and balanced
ecology under Section 16 of Article II as an exception, the
WHEREFORE, we DISMISS the petition.
present petition lacks factual basis to substantiate the In the course of the implementation of the contract, Stern
claimed constitutional violation. The other provisions Builders submitted three progress billings corresponding to
petitioners cite, relating to the protection of marine wealth SO ORDERED. the work accomplished, but the UP paid only two of the
(Article XII, Section 2, paragraph 251 ) and subsistence billings. The third billing worth ₱ 273,729.47 was not paid
fishermen (Article XIII, Section 752 ), are not violated by RA due to its disallowance by the Commission on Audit (COA).
G.R. No. 171182 August 23, 2012
9522. Despite the lifting of the disallowance, the UP failed to pay
the billing, prompting Stern Builders and dela Cruz to sue the
UNIVERSITY OF THE PHILIPPINES, JOSE V. ABUEVA, UP and its co-respondent officials to collect the unpaid billing
In fact, the demarcation of the baselines enables the
RAUL P. DE GUZMAN, RUBEN P. ASPIRAS, EMMANUEL and to recover various damages. The suit, entitled Stern
Philippines to delimit its exclusive economic zone, reserving
P. BELLO, WILFREDO P. DAVID, CASIANO S. ABRIGO, Builders Corporation and Servillano R. Dela Cruz v.
solely to the Philippines the exploitation of all living and non-
and JOSEFINA R. LICUANAN,Petitioners, University of the Philippines Systems, Jose V. Abueva, Raul
living resources within such zone. Such a maritime
vs. P. de Guzman, Ruben P. Aspiras, Emmanuel P. Bello,
delineation binds the international community since the
HON. AGUSTIN S. DIZON, his capacity as Presiding Wilfredo P. David, Casiano S. Abrigo, and Josefina R.
delineation is in strict observance of UNCLOS III. If the
Judge of the Regional Trial Court of Quezon City, Licuanan, was docketed as Civil Case No. Q-93-14971 of
maritime delineation is contrary to UNCLOS III, the
Branch 80, STERN BUILDERS, INC., and SERVILLANO the Regional Trial Court in Quezon City (RTC).4
international community will of course reject it and will refuse
DELA CRUZ, Respondents.
to be bound by it.
After trial, on November 28, 2001, the RTC rendered its
DECISION decision in favor of the plaintiffs,5 viz:
UNCLOS III favors States with a long coastline like the
Philippines. UNCLOS III creates a sui generis maritime
space – the exclusive economic zone – in waters previously BERSAMIN, J.: Wherefore, in the light of the foregoing, judgment is hereby
part of the high seas. UNCLOS III grants new rights to rendered in favor of the plaintiff and against the defendants
coastal States to exclusively exploit the resources found ordering the latter to pay plaintiff, jointly and severally, the
within this zone up to 200 nautical miles.53 UNCLOS III, Trial judges should not immediately issue writs of execution following, to wit:
however, preserves the traditional freedom of navigation of or garnishment against the Government or any of its
other States that attached to this zone beyond the territorial subdivisions, agencies and instrumentalities to enforce
sea before UNCLOS III. money judgments.1 They should bear in mind that the 1. ₱ 503,462.74 amount of the third billing,
primary jurisdiction to examine, audit and settle all claims of additional accomplished work and retention money
any sort due from the Government or any of its subdivisions,
RA 9522 and the Philippines’ Maritime Zones agencies and instrumentalities pertains to the Commission
2. ₱ 5,716,729.00 in actual damages
on Audit (COA) pursuant to Presidential Decree No. 1445
(Government Auditing Code of the Philippines).
Petitioners hold the view that, based on the permissive text
of UNCLOS III, Congress was not bound to pass RA 3. ₱ 10,000,000.00 in moral damages
9522.54 We have looked at the relevant provision of The Case
UNCLOS III55 and we find petitioners’ reading plausible. 4. ₱ 150,000.00 and ₱ 1,500.00 per appearance
Nevertheless, the prerogative of choosing this option as attorney’s fees; and
belongs to Congress, not to this Court. Moreover, the luxury On appeal by the University of the Philippines and its then
of choosing this option comes at a very steep price. Absent incumbent officials (collectively, the UP) is the decision
an UNCLOS III compliant baselines law, an archipelagic promulgated on September 16, 2005,2 whereby the Court of 5. Costs of suit.
State like the Philippines will find itself devoid of Appeals (CA) upheld the order of the Regional Trial Court
internationally acceptable baselines from where the breadth (RTC), Branch 80, in Quezon City that directed the
SO ORDERED.
of its maritime zones and continental shelf is measured. This garnishment of public funds amounting to ₱ 16,370,191.74
Following the RTC’s denial of its motion for reconsideration Studio and Photographic Equipment, Inc. vs. Court of opposition,29 the RTC granted the motion to release the
on May 7, 2002,6 the UP filed a notice of appeal on June 3, Appeals, 346 SCRA 691, 696). Indeed, Atty. Nolasco garnished funds on March 16, 2004.30 On April 20, 2004,
2002.7 Stern Builders and dela Cruz opposed the notice of received the order of denial of the Motion for however, the RTC held in abeyance the enforcement of the
appeal on the ground of its filing being belated, and moved Reconsideration on May 17, 2002 but filed a Notice of writs of execution issued on October 4, 2002 and June 3,
for the execution of the decision. The UP countered that the Appeal only on June 3, 3003. As such, the decision of the 2003 and all the ensuing notices of garnishment, citing
notice of appeal was filed within the reglementary period lower court ipso facto became final when no appeal was Section 4, Rule 52, Rules of Court, which provided that the
because the UP’s Office of Legal Affairs (OLS) in Diliman, perfected after the lapse of the reglementary period. This pendency of a timely motion for reconsideration stayed the
Quezon City received the order of denial only on May 31, procedural caveat cannot be trifled with, not even by the execution of the judgment.31
2002. On September 26, 2002, the RTC denied due course High Court.15
to the notice of appeal for having been filed out of time and
On December 21, 2004, the RTC, through respondent Judge
granted the private respondents’ motion for execution.8
The UP sought a reconsideration, but the CA denied the Agustin S. Dizon, authorized the release of the garnished
UP’s motion for reconsideration on April 19, 2004.16 funds of the UP,32 to wit:
The RTC issued the writ of execution on October 4,
2002,9 and the sheriff of the RTC served the writ of execution
On May 11, 2004, the UP appealed to the Court by petition WHEREFORE, premises considered, there being no more
and notice of demand upon the UP, through its counsel, on
for review on certiorari (G.R. No. 163501). legal impediment for the release of the garnished amount in
October 9, 2002.10 The UP filed an urgent motion to
satisfaction of the judgment award in the instant case, let the
reconsider the order dated September 26, 2002, to quash
amount garnished be immediately released by the
the writ of execution dated October 4, 2002, and to restrain On June 23, 2004, the Court denied the petition for
Development Bank of the Philippines, Commonwealth
the proceedings.11 However, the RTC denied the urgent review.17 The UP moved for the reconsideration of the denial
Branch, Quezon City in favor of the plaintiff.
motion on April 1, 2003.12 of its petition for review on August 29, 2004,18 but the Court
denied the motion on October 6, 2004.19 The denial became
final and executory on November 12, 2004.20 SO ORDERED.
On June 24, 2003, the UP assailed the denial of due course
to its appeal through a petition for certiorari in the Court of
Appeals (CA), docketed as CA-G.R. No. 77395.13 In the meanwhile that the UP was exhausting the available The UP was served on January 3, 2005 with the order of
remedies to overturn the denial of due course to the appeal December 21, 2004 directing DBP to release the garnished
and the issuance of the writ of execution, Stern Builders and funds.33
On February 24, 2004, the CA dismissed the petition
dela Cruz filed in the RTC their motions for execution despite
for certiorari upon finding that the UP’s notice of appeal had
their previous motion having already been granted and
been filed late,14 stating: On January 6, 2005, Stern Builders and dela Cruz moved to
despite the writ of execution having already issued. On June
cite DBP in direct contempt of court for its non-compliance
11, 2003, the RTC granted another motion for execution filed
with the order of release.34
Records clearly show that petitioners received a copy of the on May 9, 2003 (although the RTC had already issued the
Decision dated November 28, 2001 and January 7, 2002, writ of execution on October 4, 2002).21
thus, they had until January 22, 2002 within which to file their Thereupon, on January 10, 2005, the UP brought a petition
appeal. On January 16, 2002 or after the lapse of nine (9) for certiorari in the CA to challenge the jurisdiction of the
On June 23, 2003 and July 25, 2003, respectively, the sheriff
days, petitioners through their counsel Atty. Nolasco filed a RTC in issuing the order of December 21, 2004 (CA-G.R. CV
served notices of garnishment on the UP’s depository banks,
Motion for Reconsideration of the aforesaid decision, hence, No. 88125).35 Aside from raising the denial of due process,
namely: Land Bank of the Philippines (Buendia Branch) and
pursuant to the rules, petitioners still had six (6) remaining the UP averred that the RTC committed grave abuse of
the Development Bank of the Philippines (DBP),
days to file their appeal. As admitted by the petitioners in discretion amounting to lack or excess of jurisdiction in ruling
Commonwealth Branch.22 The UP assailed the garnishment
their petition (Rollo, p. 25), Atty. Nolasco received a copy of that there was no longer any legal impediment to the release
through an urgent motion to quash the notices of
the Order denying their motion for reconsideration on May of the garnished funds. The UP argued that government
garnishment;23 and a motion to quash the writ of execution
17, 2002, thus, petitioners still has until May 23, 2002 (the funds and properties could not be seized by virtue of writs of
dated May 9, 2003.24
remaining six (6) days) within which to file their appeal. execution or garnishment, as held in Department of
Obviously, petitioners were not able to file their Notice of Agriculture v. National Labor Relations Commission,36 and
Appeal on May 23, 2002 as it was only filed on June 3, 2002. On their part, Stern Builders and dela Cruz filed their ex citing Section 84 of Presidential Decree No. 1445 to the
parte motion for issuance of a release order.25 effect that "revenue funds shall not be paid out of any public
treasury or depository except in pursuance of an
In view of the said circumstances, We are of the belief and
appropriation law or other specific statutory authority;" and
so holds that the Notice of Appeal filed by the petitioners was On October 14, 2003, the RTC denied the UP’s urgent
that the order of garnishment clashed with the ruling in
really filed out of time, the same having been filed seventeen motion to quash, and granted Stern Builders and dela Cruz’s
University of the Philippines Board of Regents v. Ligot-
(17) days late of the reglementary period. By reason of ex parte motion for issuance of a release order.26
Telan37 to the effect that the funds belonging to the UP were
which, the decision dated November 28, 2001 had already
public funds.
become final and executory. "Settled is the rule that the
perfection of an appeal in the manner and within the period The UP moved for the reconsideration of the order of
October 14, 2003, but the RTC denied the motion on
permitted by law is not only mandatory but jurisdictional, and On January 19, 2005, the CA issued a temporary restraining
November 7, 2003.27
failure to perfect that appeal renders the challenged order (TRO) upon application by the UP.38
judgment final and executory. This is not an empty
procedural rule but is grounded on fundamental On January 12, 2004, Stern Builders and dela Cruz again
considerations of public policy and sound practice." (Ram’s sought the release of the garnished funds.28 Despite the UP’s
On March 22, 2005, Stern Builders and dela Cruz filed in the is directed to accompany and/or escort the plaintiff in making and legality of the claim. Thus, the allegation of the
RTC their amended motion for sheriff’s assistance to the deposit of the check in question. defendants that considering no appropriation for
implement the release order dated December 21, 2004, the payment of any amount awarded to plaintiffs
stating that the 60-day period of the TRO of the CA had appellee the funds of defendant-appellants may
SO ORDERED.
already lapsed.39 The UP opposed the amended motion and not be seized pursuant to a writ of execution
countered that the implementation of the release order be issued by the regular court is misplaced. Surely
suspended.40 On September 16, 2005, the CA promulgated its assailed when the defendants and the plaintiff entered into
decision dismissing the UP’s petition for certiorari, ruling that the General Construction of Agreement there is an
the UP had been given ample opportunity to contest the amount already allocated by the latter for the said
On May 3, 2005, the RTC granted the amended motion for
motion to direct the DBP to deposit the check in the name of project which is no longer subject of future
sheriff’s assistance and directed the sheriff to proceed to the
Stern Builders and dela Cruz; and that the garnished funds appropriation."49
DBP to receive the check in satisfaction of the judgment.41
could be the proper subject of garnishment because they
had been already earmarked for the project, with the UP
After the CA denied their motion for reconsideration on
The UP sought the reconsideration of the order of May 3, holding the funds only in a fiduciary capacity,48 viz:
December 23, 2005, the petitioners appealed by petition for
2005.42
review.
Petitioners next argue that the UP funds may not be seized
On May 16, 2005, DBP filed a motion to consign the check for execution or garnishment to satisfy the judgment award.
Matters Arising During the Pendency of the Petition
representing the judgment award and to dismiss the motion Citing Department of Agriculture vs. NLRC, University of the
to cite its officials in contempt of court.43 Philippines Board of Regents vs. Hon. Ligot-Telan,
petitioners contend that UP deposits at Land Bank and the On January 30, 2006, Judge Dizon of the RTC (Branch 80)
Development Bank of the Philippines, being government denied Stern Builders and dela Cruz’s motion to withdraw
On May 23, 2005, the UP presented a motion to withhold the
funds, may not be released absent an appropriations bill the deposit, in consideration of the UP’s intention to appeal
release of the payment of the judgment award.44
from Congress. to the CA,50 stating:

On July 8, 2005, the RTC resolved all the pending


The argument is specious. UP entered into a contract with Since it appears that the defendants are intending to file a
matters,45 noting that the DBP had already delivered to the
private respondents for the expansion and renovation of the petition for review of the Court of Appeals resolution in CA-
sheriff Manager’s Check No. 811941 for ₱ 16,370,191.74
Arts and Sciences Building of its campus in Los Baños, G.R. No. 88125 within the reglementary period of fifteen (15)
representing the garnished funds payable to the order of
Laguna. Decidedly, there was already an appropriations days from receipt of resolution, the Court agrees with the
Stern Builders and dela Cruz as its compliance with the
earmarked for the said project. The said funds are retained defendants stand that the granting of plaintiffs’ subject
RTC’s order dated December 21, 2004.46 However, the RTC
by UP, in a fiduciary capacity, pending completion of the motion is premature.
directed in the same order that Stern Builders and dela Cruz
construction project.
should not encash the check or withdraw its amount pending
the final resolution of the UP’s petition for certiorari, to wit: 47 Let it be stated that what the Court meant by its Order dated
We agree with the trial Court [sic] observation on July 8, 2005 which states in part that the "disposition of the
this score: amount represented therein being subject to the final
To enable the money represented in the check in question
outcome of the case of the University of the Philippines, et.
(No. 00008119411) to earn interest during the pendency of
al., vs. Hon. Agustin S. Dizon et al., (CA G.R. No. 88125
the defendant University of the Philippines application for a "4. Executive Order No. 109 (Directing all National
before the Court of Appeals) is that the judgment or
writ of injunction with the Court of Appeals the same may Government Agencies to Revert Certain Accounts
resolution of said court has to be final and executory, for if
now be deposited by the plaintiff at the garnishee Bank Payable to the Cumulative Result of Operations of
the same will still be elevated to the Supreme Court, it will
(Development Bank of the Philippines), the disposition of the the National Government and for Other Purposes)
not attain finality yet until the highest court has rendered its
amount represented therein being subject to the final Section 9. Reversion of Accounts Payable,
own final judgment or resolution.51
outcome of the case of the University of the Philippines et provides that, all 1995 and prior years documented
al., vs. Hon. Agustin S. Dizon et al., (CA G.R. 88125) before accounts payable and all undocumented accounts
the Court of Appeals. regardless of the year they were incurred shall be However, on January 22, 2007, the UP filed an Urgent
reverted to the Cumulative Result of Operations of Application for A Temporary Restraining Order and/or A Writ
the National Government (CROU). This shall apply of Preliminary Injunction,52 averring that on January 3, 2007,
Let it be stated herein that the plaintiff is not authorized to
to accounts payable of all funds, except fiduciary Judge Maria Theresa dela Torre-Yadao (who had meanwhile
encash and withdraw the amount represented in the check in
funds, as long as the purpose for which the funds replaced Judge Dizon upon the latter’s appointment to the
question and enjoy the same in the fashion of an owner
were created have not been accomplished and CA) had issued another order allowing Stern Builders and
during the pendency of the case between the parties before
accounts payable under foreign assisted projects dela Cruz to withdraw the deposit,53 to wit:
the Court of Appeals which may or may not be resolved in
for the duration of the said project. In this regard,
plaintiff’s favor.
the Department of Budget and Management
It bears stressing that defendants’ liability for the payment of
issued Joint-Circular No. 99-6 4.0 (4.3) Procedural
the judgment obligation has become indubitable due to the
With the end in view of seeing to it that the check in question Guidelines which provides that all accounts
final and executory nature of the Decision dated November
is deposited by the plaintiff at the Development Bank of the payable that reverted to the CROU may be
28, 2001. Insofar as the payment of the [sic] judgment
Philippines (garnishee bank), Branch Sheriff Herlan Velasco considered for payment upon determination thru
obligation is concerned, the Court believes that there is
administrative process, of the existence, validity
nothing more the defendant can do to escape liability. It is
observed that there is nothing more the defendant can do to Although the Court issued a TRO on January 24, 2007 to c) a writ of execution had been issued;
escape liability. It is observed that defendant U.P. System enjoin Judge Yadao and all persons acting pursuant to her
had already exhausted all its legal remedies to overturn, set authority from enforcing her order of January 3, 2007, 55 it
d) defendant U.P. System’s deposit with DBP was
aside or modify the decision (dated November 28, 2001( appears that on January 16, 2007, or prior to the issuance of
garnished pursuant to a lawful writ of execution
rendered against it. The way the Court sees it, defendant the TRO, she had already directed the DBP to forthwith
issued by the Court; and
U.P. System’s petition before the Supreme Court concerns release the garnished amount to Stern Builders and dela
only with the manner by which said judgment award should Cruz; 56 and that DBP had forthwith complied with the order
be satisfied. It has nothing to do with the legality or propriety on January 17, 2007 upon the sheriff’s service of the order of e) the garnished amount had already been turned
thereof, although it prays for the deletion of [sic] reduction of Judge Yadao.57 over to the plaintiffs and deposited in their account
the award of moral damages. with DBP.
These intervening developments impelled the UP to file in
It must be emphasized that this Court’s finding, i.e., that this Court a supplemental petition on January 26, The garnished amount, as discussed in the Order dated
there was sufficient appropriation earmarked for the project, 2007,58alleging that the RTC (Judge Yadao) gravely erred in January 16, 2007, was already owned by the plaintiffs,
was upheld by the Court of Appeals in its decision dated ordering the immediate release of the garnished amount having been delivered to them by the Deputy Sheriff of this
September 16, 2005. Being a finding of fact, the Supreme despite the pendency of the petition for review in this Court. Court pursuant to par. (c), Section 9, Rule 39 of the 1997
Court will, ordinarily, not disturb the same was said Court is Rules of Civil Procedure. Moreover, the judgment obligation
not a trier of fact. Such being the case, defendants’ has already been fully satisfied as per Report of the Deputy
The UP filed a second supplemental petition59 after the RTC
arguments that there was no sufficient appropriation for the Sheriff.
(Judge Yadao) denied the UP’s motion for the redeposit of
payment of the judgment obligation must fail.
the withdrawn amount on April 10, 2007,60 to wit:
Anent the Temporary Restraining Order issued by the
While it is true that the former Presiding Judge of this Court Supreme Court, the same has become functus oficio, having
This resolves defendant U.P. System’s Urgent Motion to
in its Order dated January 30, 2006 had stated that: been issued after the garnished amount had been released
Redeposit Judgment Award praying that plaintiffs be directed
to the plaintiffs. The judgment debt was released to the
to redeposit the judgment award to DBP pursuant to the
plaintiffs on January 17, 2007, while the Temporary
Let it be stated that what the Court meant by its Order dated Temporary Restraining Order issued by the Supreme Court.
Restraining Order issued by the Supreme Court was
July 8, 2005 which states in part that the "disposition of the Plaintiffs opposed the motion and countered that the
received by this Court on February 2, 2007. At the time of
amount represented therein being subject to the final Temporary Restraining Order issued by the Supreme Court
the issuance of the Restraining Order, the act sought to be
outcome of the case of the University of the Philippines, et. has become moot and academic considering that the act
restrained had already been done, thereby rendering the
al., vs. Hon. Agustin S. Dizon et al., (CA G.R. No. 88125 sought to be restrained by it has already been performed.
said Order ineffectual.
before the Court of Appeals) is that the judgment or They also alleged that the redeposit of the judgment award
resolution of said court has to be final and executory, for if was no longer feasible as they have already spent the same.
the same will still be elevated to the Supreme Court, it will After a careful and thorough study of the arguments
not attain finality yet until the highest court has rendered its advanced by the parties, the Court is of the considered
It bears stressing, if only to set the record straight, that this
own final judgment or resolution. opinion that there is no legal basis to grant defendant U.P.
Court did not – in its Order dated January 3, 2007 (the
System’s motion to redeposit the judgment amount. Granting
implementation of which was restrained by the Supreme
said motion is not only contrary to law, but it will also render
it should be noted that neither the Court of Appeals nor the Court in its Resolution dated January 24, 2002) – direct that
this Court’s final executory judgment nugatory. Litigation
Supreme Court issued a preliminary injunction enjoining the that garnished amount "be deposited with the garnishee
must end and terminate sometime and somewhere, and it is
release or withdrawal of the garnished amount. In fact, in its bank (Development Bank of the Philippines)". In the first
essential to an effective administration of justice that once a
present petition for review before the Supreme Court, U.P. place, there was no need to order DBP to make such
judgment has become final the issue or cause involved
System has not prayed for the issuance of a writ of deposit, as the garnished amount was already deposited in
therein should be laid to rest. This doctrine of finality of
preliminary injunction. Thus, the Court doubts whether such the account of plaintiffs with the DBP as early as May 13,
judgment is grounded on fundamental considerations of
writ is forthcoming. 2005. What the Court granted in its Order dated January 3,
public policy and sound practice. In fact, nothing is more
2007 was plaintiff’s motion to allow the release of said
settled in law than that once a judgment attains finality it
deposit. It must be recalled that the Court found plaintiff’s
The Court honestly believes that if defendants’ petition thereby becomes immutable and unalterable. It may no
motion meritorious and, at that time, there was no restraining
assailing the Order of this Court dated December 31, 2004 longer be modified in any respect, even if the modification is
order or preliminary injunction from either the Court of
granting the motion for the release of the garnished amount meant to correct what is perceived to be an erroneous
Appeals or the Supreme Court which could have enjoined
was meritorious, the Court of Appeals would have issued a conclusion of fact or law, and regardless of whether the
the release of plaintiffs’ deposit. The Court also took into
writ of injunction enjoining the same. Instead, said appellate modification is attempted to be made by the court rendering
account the following factors:
court not only refused to issue a wit of preliminary injunction it or by the highest court of the land.
prayed for by U.P. System but denied the petition, as well.54
a) the Decision in this case had long been final
WHEREFORE, premises considered, finding defendant U.P.
and executory after it was rendered on November
The UP contended that Judge Yadao thereby effectively System’s Urgent Motion to Redeposit Judgment Award
28, 2001;
reversed the January 30, 2006 order of Judge Dizon devoid of merit, the same is hereby DENIED.
disallowing the withdrawal of the garnished amount until after
the decision in the case would have become final and b) the propriety of the dismissal of U.P. System’s
SO ORDERED.
executory. appeal was upheld by the Supreme Court;
Issues LANGUAGE OF THE SUPREME COURT RESOLUTION miserably because of the wrongful actuations of the UP; and
DATED 24 JANUARY 2007. that the RTC correctly declared the Court’s TRO to be
already functus officio by reason of the withdrawal of the
The UP now submits that:
garnished amount from the DBP.
The UP argues that the amount earmarked for the
construction project had been purposely set aside only for
I
the aborted project and did not include incidental matters like The decisive issues to be considered and passed upon are,
the awards of actual damages, moral damages and therefore:
THE COURT OF APPEALS COMMITTED GRAVE ERROR attorney’s fees. In support of its argument, the UP cited
IN DISMISSING THE PETITION, ALLOWING IN EFFECT Article 12.2 of the General Construction Agreement, which
(a) whether the funds of the UP were the proper subject of
THE GARNISHMENT OF UP FUNDS, WHEN IT RULED stipulated that no deductions would be allowed for the
garnishment in order to satisfy the judgment award; and (b)
THAT FUNDS HAVE ALREADY BEEN EARMARKED FOR payment of claims, damages, losses and expenses,
whether the UP’s prayer for the deletion of the awards of
THE CONSTRUCTION PROJECT; AND THUS, THERE IS including attorney’s fees, in case of any litigation arising out
actual damages of ₱ 5,716,729.00, moral damages of ₱
NO NEED FOR FURTHER APPROPRIATIONS. of the performance of the work. The UP insists that the CA
10,000,000.00 and attorney’s fees of ₱ 150,000.00 plus ₱
decision was inconsistent with the rulings in Commissioner
1,500.00 per appearance could be granted despite the
of Public Highways v. San Diego61 and Department of
II finality of the judgment of the RTC.
Agriculture v. NLRC62 to the effect that government funds
and properties could not be seized under writs of execution
THE COURT OF APPEALS COMMITTED GRAVE ERROR or garnishment to satisfy judgment awards. Ruling
IN ALLOWING GARNISHMENT OF A STATE
UNIVERSITY’S FUNDS IN VIOLATION OF ARTICLE XIV,
Furthermore, the UP contends that the CA contravened The petition for review is meritorious.
SECTION 5(5) OF THE CONSTITUTION. Section 5, Article XIV of the Constitution by allowing the
garnishment of UP funds, because the garnishment resulted
I.
III in a substantial reduction of the UP’s limited budget allocated
UP’s funds, being government funds,
for the remuneration, job satisfaction and fulfillment of the
are not subject to garnishment
best available teachers; that Judge Yadao should have
IN THE ALTERNATIVE, THE UNIVERSITY INVOKES exhibited judicial courtesy towards the Court due to the
EQUITY AND THE REVIEW POWERS OF THIS pendency of the UP’s petition for review; and that she should The UP was founded on June 18, 1908 through Act 1870 to
HONORABLE COURT TO MODIFY, IF NOT TOTALLY have also desisted from declaring that the TRO issued by provide advanced instruction in literature, philosophy, the
DELETE THE AWARD OF ₱ 10 MILLION AS MORAL this Court had become functus officio. sciences, and arts, and to give professional and technical
DAMAGES TO RESPONDENTS.
training to deserving students.63 Despite its establishment as
Lastly, the UP states that the awards of actual damages of ₱ a body corporate,64 the UP remains to be a "chartered
IV 5,716,729.00 and moral damages of ₱ 10 million should be institution"65 performing a legitimate government function. It
reduced, if not entirely deleted, due to its being is an institution of higher learning, not a corporation
unconscionable, inequitable and detrimental to public established for profit and declaring any dividends.66 In
THE RTC-BRANCH 80 COMMITTED GRAVE ERROR IN enacting Republic Act No. 9500 (The University of the
ORDERING THE IMMEDIATE RELEASE OF THE service.
Philippines Charter of 2008), Congress has declared the UP
JUDGMENT AWARD IN ITS ORDER DATED 3 JANUARY as the national university67 "dedicated to the search for truth
2007 ON THE GROUND OF EQUITY AND JUDICIAL In contrast, Stern Builders and dela Cruz aver that the and knowledge as well as the development of future
COURTESY. petition for review was fatally defective for its failure to leaders."68
mention the other cases upon the same issues pending
V between the parties (i.e., CA-G.R. No. 77395 and G.R No.
163501); that the UP was evidently resorting to forum Irrefragably, the UP is a government
shopping, and to delaying the satisfaction of the final instrumentality,69 performing the State’s constitutional
THE RTC-BRANCH 80 COMMITTED GRAVE ERROR IN mandate of promoting quality and accessible education. 70 As
judgment by the filing of its petition for review; that the ruling
ORDERING THE IMMEDIATE RELEASE OF THE in Commissioner of Public Works v. San Diego had no a government instrumentality, the UP administers special
JUDGMENT AWARD IN ITS ORDER DATED 16 JANUARY application because there was an appropriation for the funds sourced from the fees and income enumerated under
2007 ON THE GROUND THAT PETITIONER UNIVERSITY Act No. 1870 and Section 1 of Executive Order No.
project; that the UP retained the funds allotted for the project
STILL HAS A PENDING MOTION FOR only in a fiduciary capacity; that the contract price had been 714,71 and from the yearly appropriations, to achieve the
RECONSIDERATION OF THE ORDER DATED 3 JANUARY meanwhile adjusted to ₱ 22,338,553.25, an amount already purposes laid down by Section 2 of Act 1870, as expanded
2007. in Republic Act No. 9500.72 All the funds going into the
more than sufficient to cover the judgment award; that the
UP’s prayer to reduce or delete the award of damages had possession of the UP, including any interest accruing from
no factual basis, because they had been gravely wronged, the deposit of such funds in any banking institution,
VI constitute a "special trust fund," the disbursement of which
had been deprived of their source of income, and had
suffered untold miseries, discomfort, humiliation and should always be aligned with the UP’s mission and
THE RTC-BRANCH 80 COMMITTED GRAVE ERROR IN sleepless years; that dela Cruz had even been constrained purpose,73 and should always be subject to auditing by the
NOT ORDERING THE REDEPOSIT OF THE GARNISHED COA.74
to sell his house, his equipment and the implements of his
AMOUNT TO THE DBP IN VIOLATION OF THE CLEAR trade, and together with his family had been forced to live
Presidential Decree No. 1445 defines a "trust fund" as a fund The UP correctly submits here that the garnishment of its share, and those for which the government has put up a
that officially comes in the possession of an agency of the funds to satisfy the judgment awards of actual and moral counterpart fund or those partly funded by the government.
government or of a public officer as trustee, agent or damages (including attorney’s fees) was not validly made if
administrator, or that is received for the fulfillment of some there was no special appropriation by Congress to cover the
It was of no moment that a final and executory decision
obligation.75 A trust fund may be utilized only for the "specific liability. It was, therefore, legally unwarranted for the CA to
already validated the claim against the UP. The settlement of
purpose for which the trust was created or the funds agree with the RTC’s holding in the order issued on April 1,
the monetary claim was still subject to the primary
received."76 2003 that no appropriation by Congress to allocate and set
jurisdiction of the COA despite the final decision of the RTC
aside the payment of the judgment awards was necessary
having already validated the claim.85 As such, Stern Builders
because "there (were) already an appropriations (sic)
The funds of the UP are government funds that are public in and dela Cruz as the claimants had no alternative except to
earmarked for the said project."82 The CA and the RTC
character. They include the income accruing from the use of first seek the approval of the COA of their monetary claim.
thereby unjustifiably ignored the legal restriction imposed on
real property ceded to the UP that may be spent only for the
the trust funds of the Government and its agencies and
attainment of its institutional objectives.77 Hence, the funds
instrumentalities to be used exclusively to fulfill the purposes On its part, the RTC should have exercised utmost caution,
subject of this action could not be validly made the subject of
for which the trusts were created or for which the funds were prudence and judiciousness in dealing with the motions for
the RTC’s writ of execution or garnishment. The adverse
received except upon express authorization by Congress or execution against the UP and the garnishment of the UP’s
judgment rendered against the UP in a suit to which it had
by the head of a government agency in control of the funds, funds. The RTC had no authority to direct the immediate
impliedly consented was not immediately enforceable by
and subject to pertinent budgetary laws, rules and withdrawal of any portion of the garnished funds from the
execution against the UP,78 because suability of the State did
regulations.83 depository banks of the UP. By eschewing utmost caution,
not necessarily mean its liability.79
prudence and judiciousness in dealing with the execution
and garnishment, and by authorizing the withdrawal of the
Indeed, an appropriation by Congress was required before
A marked distinction exists between suability of the State garnished funds of the UP, the RTC acted beyond its
the judgment that rendered the UP liable for moral and
and its liability. As the Court succinctly stated in Municipality jurisdiction, and all its orders and issuances thereon were
actual damages (including attorney’s fees) would be satisfied
of San Fernando, La Union v. Firme:80 void and of no legal effect, specifically: (a) the order Judge
considering that such monetary liabilities were not covered
Yadao issued on January 3, 2007 allowing Stern Builders
by the "appropriations earmarked for the said project." The
and dela Cruz to withdraw the deposited garnished amount;
A distinction should first be made between suability and Constitution strictly mandated that "(n)o money shall be paid
(b) the order Judge Yadao issued on January 16, 2007
liability. "Suability depends on the consent of the state to be out of the Treasury except in pursuance of an appropriation
directing DBP to forthwith release the garnish amount to
sued, liability on the applicable law and the established facts. made by law."84
Stern Builders and dela Cruz; (c) the sheriff’s report of
The circumstance that a state is suable does not necessarily
January 17, 2007 manifesting the full satisfaction of the writ
mean that it is liable; on the other hand, it can never be held
II of execution; and (d) the order of April 10, 2007 deying the
liable if it does not first consent to be sued. Liability is not
COA must adjudicate private respondents’ claim UP’s motion for the redeposit of the withdrawn amount.
conceded by the mere fact that the state has allowed itself to
before execution should proceed Hence, such orders and issuances should be struck down
be sued. When the state does waive its sovereign immunity,
without exception.
it is only giving the plaintiff the chance to prove, if it can, that
the defendant is liable. The execution of the monetary judgment against the UP was
within the primary jurisdiction of the COA. This was Nothing extenuated Judge Yadao’s successive violations of
expressly provided in Section 26 of Presidential Decree No. Presidential Decree No. 1445. She was aware of
Also, in Republic v. Villasor,81 where the issuance of an alias
1445, to wit: Presidential Decree No. 1445, considering that the Court
writ of execution directed against the funds of the Armed
circulated to all judges its Administrative Circular No. 10-
Forces of the Philippines to satisfy a final and executory
2000,86 issued on October 25, 2000, enjoining them "to
judgment was nullified, the Court said: Section 26. General jurisdiction. - The authority and powers
observe utmost caution, prudence and judiciousness in the
of the Commission shall extend to and comprehend all
issuance of writs of execution to satisfy money judgments
matters relating to auditing procedures, systems and
xxx The universal rule that where the State gives its consent against government agencies and local government units"
controls, the keeping of the general accounts of the
to be sued by private parties either by general or special law, precisely in order to prevent the circumvention of
Government, the preservation of vouchers pertaining thereto
it may limit claimant’s action "only up to the completion of Presidential Decree No. 1445, as well as of the rules and
for a period of ten years, the examination and inspection of
proceedings anterior to the stage of execution" and that the procedures of the COA, to wit:
the books, records, and papers relating to those accounts;
power of the Courts ends when the judgment is rendered,
and the audit and settlement of the accounts of all persons
since government funds and properties may not be seized
respecting funds or property received or held by them in an In order to prevent possible circumvention of the rules
under writs of execution or garnishment to satisfy such
accountable capacity, as well as the examination, audit, and and procedures of the Commission on Audit, judges are
judgments, is based on obvious considerations of public
settlement of all debts and claims of any sort due from or hereby enjoined to observe utmost caution, prudence
policy. Disbursements of public funds must be covered by
owing to the Government or any of its subdivisions, agencies and judiciousness in the issuance of writs of execution
the corresponding appropriation as required by law. The
and instrumentalities. The said jurisdiction extends to all to satisfy money judgments against government
functions and public services rendered by the State cannot
government-owned or controlled corporations, including their agencies and local government units.
be allowed to be paralyzed or disrupted by the diversion of
subsidiaries, and other self-governing boards, commissions,
public funds from their legitimate and specific objects, as
or agencies of the Government, and as herein prescribed,
appropriated by law. Judges should bear in mind that in Commissioner of Public
including non governmental entities subsidized by the
Highways v. San Diego (31 SCRA 617, 625 1970), this Court
government, those funded by donations through the
explicitly stated:
government, those required to pay levies or government
"The universal rule that where the State gives its consent to capacity, property not used or used for a public purpose but party. Unjustified delay in the enforcement of such judgment
be sued by private parties either by general or special law, it for quasi-private purposes, it is the general rule that such sets at naught the role and purpose of the courts to resolve
may limit claimant’s action ‘only up to the completion of property may be seized and sold under execution against the justiciable controversies with finality.89Indeed, all litigations
proceedings anterior to the stage of execution’ and that the corporation. must at some time end, even at the risk of occasional errors.
power of the Court ends when the judgment is rendered,
since government funds and properties may not be seized
3. Property held for public purposes is not subject to But the doctrine of immutability of a final judgment has not
under writs of execution or garnishment to satisfy such
execution merely because it is temporarily used for private been absolute, and has admitted several exceptions, among
judgments, is based on obvious considerations of public
purposes. If the public use is wholly abandoned, such them: (a) the correction of clerical errors; (b) the so-called
policy. Disbursements of public funds must be covered by
property becomes subject to execution. nunc pro tunc entries that cause no prejudice to any party;
the corresponding appropriation as required by law. The
(c) void judgments; and (d) whenever circumstances
functions and public services rendered by the State cannot
transpire after the finality of the decision that render its
be allowed to be paralyzed or disrupted by the diversion of This Administrative Circular shall take effect immediately and
execution unjust and inequitable.90 Moreover, in Heirs of
public funds from their legitimate and specific objects, as the Court Administrator shall see to it that it is faithfully
Maura So v. Obliosca,91 we stated that despite the absence
appropriated by law. implemented.
of the preceding circumstances, the Court is not precluded
from brushing aside procedural norms if only to serve the
Moreover, it is settled jurisprudence that upon Although Judge Yadao pointed out that neither the CA nor higher interests of justice and equity. Also, in Gumaru v.
determination of State liability, the prosecution, the Court had issued as of then any writ of preliminary Quirino State College,92 the Court nullified the proceedings
enforcement or satisfaction thereof must still be injunction to enjoin the release or withdrawal of the and the writ of execution issued by the RTC for the reason
pursued in accordance with the rules and procedures garnished amount, she did not need any writ of injunction that respondent state college had not been represented in
laid down in P.D. No. 1445, otherwise known as the from a superior court to compel her obedience to the law. the litigation by the Office of the Solicitor General.
Government Auditing Code of the Philippines The Court is disturbed that an experienced judge like her
(Department of Agriculture v. NLRC, 227 SCRA 693, 701- should look at public laws like Presidential Decree No. 1445
We rule that the UP’s plea for equity warrants the Court’s
02 1993 citing Republic vs. Villasor, 54 SCRA 84 1973). dismissively instead of loyally following and unquestioningly
exercise of the exceptional power to disregard the
All money claims against the Government must first be implementing them. That she did so turned her court into an
declaration of finality of the judgment of the RTC for being in
filed with the Commission on Audit which must act upon oppressive bastion of mindless tyranny instead of having it
clear violation of the UP’s right to due process.
it within sixty days. Rejection of the claim will authorize as a true haven for the seekers of justice like the UP.
the claimant to elevate the matter to the Supreme Court
on certiorari and in effect, sue the State thereby (P.D. Both the CA and the RTC found the filing on June 3, 2002 by
1445, Sections 49-50). III
the UP of the notice of appeal to be tardy. They based their
Period of appeal did not start without effective
finding on the fact that only six days remained of the UP’s
service of decision upon counsel of record;
reglementary 15-day period within which to file the notice of
However, notwithstanding the rule that government Fresh-period rule announced in
appeal because the UP had filed a motion for
properties are not subject to levy and execution unless Neypes v. Court of Appeals
reconsideration on January 16, 2002 vis-à-vis the RTC’s
otherwise provided for by statute (Republic v. Palacio, 23 can be given retroactive application
decision the UP received on January 7, 2002; and that
SCRA 899 1968; Commissioner of Public Highways v. San
because the denial of the motion for reconsideration had
Diego, supra) or municipal ordinance (Municipality of Makati
The UP next pleads that the Court gives due course to its been served upon Atty. Felimon D. Nolasco of the UPLB
v. Court of Appeals, 190 SCRA 206 1990), the Court has, in
petition for review in the name of equity in order to reverse or Legal Office on May 17, 2002, the UP had only until May 23,
various instances, distinguished between government funds
modify the adverse judgment against it despite its finality. At 2002 within which to file the notice of appeal.
and properties for public use and those not held for public
use. Thus, in Viuda de Tan Toco v. Municipal Council of stake in the UP’s plea for equity was the return of the
amount of ₱ 16,370,191.74 illegally garnished from its trust
Iloilo (49 Phil 52 1926, the Court ruled that "where property The UP counters that the service of the denial of the motion
of a municipal or other public corporation is sought to be funds. Obstructing the plea is the finality of the judgment
for reconsideration upon Atty. Nolasco was defective
subjected to execution to satisfy judgments recovered based on the supposed tardiness of UP’s appeal, which the
considering that its counsel of record was not Atty. Nolasco
RTC declared on September 26, 2002. The CA upheld the
against such corporation, the question as to whether such of the UPLB Legal Office but the OLS in Diliman, Quezon
property is leviable or not is to be determined by the usage declaration of finality on February 24, 2004, and the Court
City; and that the period of appeal should be reckoned from
and purposes for which it is held." The following can be itself denied the UP’s petition for review on that issue on May
May 31, 2002, the date when the OLS received the order.
11, 2004 (G.R. No. 163501). The denial became final on
culled from Viuda de Tan Toco v. Municipal Council of Iloilo: The UP submits that the filing of the notice of appeal on June
November 12, 2004.
3, 2002 was well within the reglementary period to appeal.
1. Properties held for public uses – and generally
everything held for governmental purposes – are not It is true that a decision that has attained finality becomes
We agree with the submission of the UP.
subject to levy and sale under execution against such immutable and unalterable, and cannot be modified in any
corporation. The same rule applies to funds in the hands respect,87 even if the modification is meant to correct
of a public officer and taxes due to a municipal erroneous conclusions of fact and law, and whether the Firstly, the service of the denial of the motion for
corporation. modification is made by the court that rendered it or by this reconsideration upon Atty. Nolasco of the UPLB Legal Office
Court as the highest court of the land.88 Public policy dictates was invalid and ineffectual because he was admittedly not
that once a judgment becomes final, executory and the counsel of record of the UP. The rule is that it is on the
2. Where a municipal corporation owns in its proprietary unappealable, the prevailing party should not be deprived of counsel and not the client that the service should be made. 93
capacity, as distinguished from its public or government the fruits of victory by some subterfuge devised by the losing
That counsel was the OLS in Diliman, Quezon City, which within which to file the notice of appeal in the Regional Trial IV
was served with the denial only on May 31, 2002. As such, Court, counted from receipt of the order dismissing a motion Awards of monetary damages,
the running of the remaining period of six days resumed only for a new trial or motion for reconsideration. being devoid of factual and legal bases,
on June 1, 2002,94 rendering the filing of the UP’s notice of did not attain finality and should be deleted
appeal on June 3, 2002 timely and well within the remaining
The retroactive application of the fresh-period rule, a
days of the UP’s period to appeal.
procedural law that aims "to regiment or make the appeal Section 14 of Article VIII of the Constitution prescribes that
period uniform, to be counted from receipt of the order express findings of fact and of law should be made in the
Verily, the service of the denial of the motion for denying the motion for new trial, motion for reconsideration decision rendered by any court, to wit:
reconsideration could only be validly made upon the OLS in (whether full or partial) or any final order or resolution,"99 is
Diliman, and no other. The fact that Atty. Nolasco was in the impervious to any serious challenge. This is because there
Section 14. No decision shall be rendered by any court
employ of the UP at the UPLB Legal Office did not render are no vested rights in rules of procedure.100 A law or
without expressing therein clearly and distinctly the facts and
the service upon him effective. It is settled that where a party regulation is procedural when it prescribes rules and forms of
the law on which it is based.
has appeared by counsel, service must be made upon such procedure in order that courts may be able to administer
counsel.95 Service on the party or the party’s employee is not justice.101 It does not come within the legal conception of a
effective because such notice is not notice in law.96 This is retroactive law, or is not subject of the general rule No petition for review or motion for reconsideration of a
clear enough from Section 2, second paragraph, of Rule 13, prohibiting the retroactive operation of statues, but is given decision of the court shall be refused due course or denied
Rules of Court, which explicitly states that: "If any party has retroactive effect in actions pending and undetermined at the without stating the legal basis therefor.
appeared by counsel, service upon him shall be made upon time of its passage without violating any right of a person
his counsel or one of them, unless service upon the party who may feel that he is adversely affected.
Implementing the constitutional provision in civil actions is
himself is ordered by the court. Where one counsel appears
for several parties, he shall only be entitled to one copy of Section 1 of Rule 36, Rules of Court, viz:
We have further said that a procedural rule that is amended
any paper served upon him by the opposite side." As such,
for the benefit of litigants in furtherance of the administration
the period to appeal resumed only on June 1, 2002, the date Section 1. Rendition of judgments and final orders. — A
of justice shall be retroactively applied to likewise favor
following the service on May 31, 2002 upon the OLS in judgment or final order determining the merits of the case
actions then pending, as equity delights in equality. 102 We
Diliman of the copy of the decision of the RTC, not from the shall be in writing personally and directly prepared by the
may even relax stringent procedural rules in order to serve
date when the UP was notified.97 judge, stating clearly and distinctly the facts and the law on
substantial justice and in the exercise of this Court’s equity
jurisdiction.103 Equity jurisdiction aims to do complete justice which it is based, signed by him, and filed with the clerk of
Accordingly, the declaration of finality of the judgment of the in cases where a court of law is unable to adapt its the court. (1a)
RTC, being devoid of factual and legal bases, is set aside. judgments to the special circumstances of a case because of
the inflexibility of its statutory or legal jurisdiction.104 The Constitution and the Rules of Court apparently delineate
Secondly, even assuming that the service upon Atty. two main essential parts of a judgment, namely: the body
Nolasco was valid and effective, such that the remaining It is cogent to add in this regard that to deny the benefit of and the decretal portion. Although the latter is the controlling
period for the UP to take a timely appeal would end by May the fresh-period rule to the UP would amount to injustice and part,106 the importance of the former is not to be lightly
23, 2002, it would still not be correct to find that the judgment absurdity – injustice, because the judgment in question was regarded because it is there where the court clearly and
of the RTC became final and immutable thereafter due to the issued on November 28, 2001 as compared to the judgment distinctly states its findings of fact and of law on which the
notice of appeal being filed too late on June 3, 2002. in Neypes that was rendered in 1998; absurdity, because decision is based. To state it differently, one without the
other is ineffectual and useless. The omission of either
parties receiving notices of judgment and final orders issued
in the year 1998 would enjoy the benefit of the fresh-period inevitably results in a judgment that violates the letter and
In so declaring the judgment of the RTC as final against the the spirit of the Constitution and the Rules of Court.
rule but the later rulings of the lower courts like that herein
UP, the CA and the RTC applied the rule contained in the
would not.105
second paragraph of Section 3, Rule 41 of the Rules of
Court to the effect that the filing of a motion for The term findings of fact that must be found in the body of
reconsideration interrupted the running of the period for filing Consequently, even if the reckoning started from May 17, the decision refers to statements of fact, not to conclusions
of law.107 Unlike in pleadings where ultimate facts alone need
the appeal; and that the period resumed upon notice of the 2002, when Atty. Nolasco received the denial, the UP’s filing
denial of the motion for reconsideration. For that reason, the on June 3, 2002 of the notice of appeal was not tardy within to be stated, the Constitution and the Rules of Court require
CA and the RTC might not be taken to task for strictly the context of the fresh-period rule. For the UP, the fresh not only that a decision should state the ultimate facts but
also that it should specify the supporting evidentiary facts, for
adhering to the rule then prevailing. period of 15-days counted from service of the denial of the
motion for reconsideration would end on June 1, 2002, which they are what are called the findings of fact.
was a Saturday. Hence, the UP had until the next working
However, equity calls for the retroactive application in the
day, or June 3, 2002, a Monday, within which to appeal, The importance of the findings of fact and of law cannot be
UP’s favor of the fresh-period rule that the Court first
conformably with Section 1 of Rule 22, Rules of Court, which overstated. The reason and purpose of the Constitution and
announced in mid-September of 2005 through its ruling in
holds that: "If the last day of the period, as thus computed, the Rules of Court in that regard are obviously to inform the
Neypes v. Court of Appeals,98 viz:
falls on a Saturday, a Sunday, or a legal holiday in the place parties why they win or lose, and what their rights and
where the court sits, the time shall not run until the next obligations are. Only thereby is the demand of due process
To standardize the appeal periods provided in the Rules and working day." met as to the parties. As Justice Isagani A. Cruz explained
to afford litigants fair opportunity to appeal their cases, the in Nicos Industrial Corporation v. Court of Appeals:108
Court deems it practical to allow a fresh period of 15 days
It is a requirement of due process that the parties to a moral damages constituted another judicial ipse dixit, the Nonetheless, the absence of findings of fact and of any
litigation be informed of how it was decided, with an inevitable consequence of which was to render the award of statement of the law and jurisprudence on which the awards
explanation of the factual and legal reasons that led to the moral damages incapable of attaining finality. In addition, the of actual and moral damages, as well as of attorney’s fees,
conclusions of the court. The court cannot simply say that grant of moral damages in that manner contravened the law were based was a fatal flaw that invalidated the decision of
judgment is rendered in favor of X and against Y and just that permitted the recovery of moral damages as the means the RTC only as to such awards. As the Court declared in
leave it at that without any justification whatsoever for its to assuage "physical suffering, mental anguish, fright, Velarde v. Social Justice Society,123 the failure to comply with
action. The losing party is entitled to know why he lost, so he serious anxiety, besmirched reputation, wounded feelings, the constitutional requirement for a clear and distinct
may appeal to a higher court, if permitted, should he believe moral shock, social humiliation, and similar injury."111 The statement of the supporting facts and law "is a grave abuse
that the decision should be reversed. A decision that does contravention of the law was manifest considering that Stern of discretion amounting to lack or excess of jurisdiction" and
not clearly and distinctly state the facts and the law on which Builders, as an artificial person, was incapable of that "(d)ecisions or orders issued in careless disregard of the
it is based leaves the parties in the dark as to how it was experiencing pain and moral sufferings.112 Assuming that in constitutional mandate are a patent nullity and must be
reached and is especially prejudicial to the losing party, who granting the substantial amount of ₱ 10,000,000.00 as moral struck down as void."124 The other item granted by the RTC
is unable to pinpoint the possible errors of the court for damages, the RTC might have had in mind that dela Cruz (i.e., ₱ 503,462.74) shall stand, subject to the action of the
review by a higher tribunal. had himself suffered mental anguish and anxiety. If that was COA as stated herein.
the case, then the RTC obviously disregarded his separate
and distinct personality from that of Stern
Here, the decision of the RTC justified the grant of actual WHEREFORE, the Court GRANTS the petition for review on
Builders.113 Moreover, his moral and emotional sufferings as
and moral damages, and attorney’s fees in the following certiorari; REVERSES and SETS ASIDE the decision of the
the President of Stern Builders were not the sufferings of
terse manner, viz: Court of Appeals under review; ANNULS the orders for the
Stern Builders. Lastly, the RTC violated the basic principle
garnishment of the funds of the University of the Philippines
that moral damages were not intended to enrich the plaintiff
and for the release of the garnished amount to Stern
xxx The Court is not unmindful that due to defendants’ at the expense of the defendant, but to restore the plaintiff to
Builders Corporation and Servillano dela Cruz;
unjustified refusal to pay their outstanding obligation to his status quo ante as much as possible. Taken together,
and DELETES from the decision of the Regional Trial Court
plaintiff, the same suffered losses and incurred expenses as therefore, all these considerations exposed the substantial
dated November 28, 2001 for being void only the awards of
he was forced to re-mortgage his house and lot located in amount of ₱ 10,000,000.00 allowed as moral damages not
actual damages of ₱ 5,716,729.00, moral damages of ₱
Quezon City to Metrobank (Exh. "CC") and BPI Bank just to only to be factually baseless and legally indefensible, but
10,000,000.00, and attorney's fees of ₱ 150,000.00, plus ₱
pay its monetary obligations in the form of interest and also to be unconscionable, inequitable and unreasonable.
1,500.00 per appearance, in favor of Stern Builders
penalties incurred in the course of the construction of the
Corporation and Servillano dela Cruz.
subject project.109
Like the actual and moral damages, the ₱ 150,000.00, plus
₱ 1,500.00 per appearance, granted as attorney’s fees were
The Court ORDERS Stem Builders Corporation and
The statement that "due to defendants’ unjustified refusal to factually unwarranted and devoid of legal basis. The general
Servillano dela Cruz to redeposit the amount of ₱
pay their outstanding obligation to plaintiff, the same suffered rule is that a successful litigant cannot recover attorney’s
16,370,191.74 within 10 days from receipt of this decision.
losses and incurred expenses as he was forced to re- fees as part of the damages to be assessed against the
mortgage his house and lot located in Quezon City to losing party because of the policy that no premium should be
Metrobank (Exh. "CC") and BPI Bank just to pay its placed on the right to litigate.114 Prior to the effectivity of the Costs of suit to be paid by the private respondents.
monetary obligations in the form of interest and penalties present Civil Code, indeed, such fees could be recovered
incurred in the course of the construction of the subject only when there was a stipulation to that effect. It was only
SO ORDERED.
project" was only a conclusion of fact and law that did not under the present Civil Code that the right to collect
comply with the constitutional and statutory prescription. The attorney’s fees in the cases mentioned in Article 2208115 of
statement specified no detailed expenses or losses the Civil Code came to be recognized.116 Nonetheless, with G.R. No. 85284 February 28, 1990
constituting the ₱ 5,716,729.00 actual damages sustained by attorney’s fees being allowed in the concept of actual
Stern Builders in relation to the construction project or to damages,117 their amounts must be factually and legally
justified in the body of the decision and not stated for the first REPUBLIC OF THE PHILIPPINES, petitioner
other pecuniary hardships. The omission of such expenses
or losses directly indicated that Stern Builders did not prove time in the decretal portion.118 Stating the amounts only in the vs.
dispositive portion of the judgment is not enough;119 a SANDIGANBAYAN, Third Division, SIMPLICIO A.
them at all, which then contravened Article 2199, Civil Code,
rendition of the factual and legal justifications for them must PALANCA in his own behalf as a stockholder of Bacolod
the statutory basis for the award of actual damages, which
also be laid out in the body of the decision.120 Real Estate Development Corporation (BREDCO), and
entitled a person to an adequate compensation only for such
other stockholders similarly situated, respondents.
pecuniary loss suffered by him as he has duly proved. As
such, the actual damages allowed by the RTC, being bereft
That the attorney’s fees granted to the private respondents
of factual support, were speculative and whimsical. Without Hilado, Hagad & Hilado for private respondents.
did not satisfy the foregoing requirement suffices for the
the clear and distinct findings of fact and law, the award
Court to undo them.121 The grant was ineffectual for being
amounted only to an ipse dixit on the part of the RTC, 110 and
contrary to law and public policy, it being clear that the RESOLUTION
did not attain finality.
express findings of fact and law were intended to bring the
case within the exception and thereby justify the award of the
There was also no clear and distinct statement of the factual attorney’s fees. Devoid of such express findings, the award
and legal support for the award of moral damages in the was a conclusion without a premise, its basis being PADILLA, J.:
substantial amount of ₱ 10,000,000.00. The award was thus improperly left to speculation and conjecture.122
also speculative and whimsical. Like the actual damages, the
This is a petition for certiorari to annul and set aside the the other hand, that the titles mentioned intervene and giving the private respondents in turn ten (10)
resolution of the Sandiganbayan (Third Division), dated 3 in aforesaid Annex of the complaint days within which to file their reply thereto.
June 1988, granting the private respondents' motion to covering the lots in question are not
intervene in Civil Case No. 0025 and admitting their answer registered in the names of any of the
On 23 March 1988, petitioner filed its Motion to Dismiss
in intervention, as well as its resolution, dated 25 August defendants but in the name of Bacolod
"Answer In Intervention," on the grounds that; (1) respondent
1988, denying the petitioner's motion for reconsideration; Real Estate Development Corporation.
court lacks jurisdiction and (2) intervenors have no legal
PROHIBITION to order the respondent court to cease and
interest in the matter in litigation, 10 which the private
desist from proceeding with the intervention filed with it; and
2. Similarly, the shares of stock in respondents opposed. 11
alternatively, mandamus to compel the respondent court to
Bacolod Real Estate Development
dismiss the intervention case.
Corporation appealing under
On 6 June 1988, respondent court promulgated a Resolution
PERSONAL PROPERTY on page two
dated 3 June 1988 12 granting the private respondents'
The antecedents are as follows: of Annex A of the complaint t are '
motion to intervene and admitting their Answer in
carried not in the names of any of the
Intervention.
defendants, but in the name of Marsteel
On 29 July 1987, the Republic of the Philippines, as Plaintiff,
Consolidated Inc. and were acquired
through its governmental instrumentality the Presidential
under the circumstances averred more Petitioner moved for reconsideration but this was denied by
Commission on Good Government (PCGG) filed with the
in detail in the accompanying Answer in respondent court in its resolution of 25 August 1989.13
respondent Sandiganbayan a complaint against Ferdinand
Intervention by reason of which detail
E. Marcos, et al. for reconveyance, reversion, accounting,
shares should not be involved in the
restitution and damages, docketed therein as Civil Case No. Hence, the instant petition.
present action.
0025 (PCGG No. 26). 1

3. If intervention is allowed, intervenors The petitioner, through the Solicitor General, contends that in
On or about 3 September 1987, before the said Civil Case issuing the questioned resolutions granting the Motion to
are prepared to prove that if ever any of
No. 0025 could be set for hearing, private respondent Intervene and admitting the Answer-in-Intervention,
the defendants through Marsteel
Simplicio A. Palanca in his own behalf as a stockholder of respondent Sandiganbayan acted in contravention of a
Consolidated, Inc. and Marsteel
Bacolod Real Estate Development Corporation (BREDCO) national or public policy embedded in Executive Order Nos.
Corporation came to have any interest in
and other stockholders similarly situated, filed with the 1, 2, 4 and related issuances, or otherwise acted in a way
Bacolod Real Estate Development
respondent Sandiganbayan a "Motion For Leave To not in accord with law or with the applicable decisions of this
Corporation, it was only by way of
Intervene" 2 attaching thereto their "Answer in Intervention Court, because:
accommodation on the part of BREDCO
." 3
stockholders who transferred their
shareholdings aggregating 70% of the (a) Petitioner, being the sovereign state, cannot be sued
In their motion, private respondents alleged that they be — subscribed capital to enable Marsteel without its consent, and the Intervention is, in legal effect, a
Consolidated to secure adequate suit or counter- suit against the sovereign state, the Republic
financing for the reclamation and port of the Philippines;
... allowed to intervene in the present development project . 4
action and to file the Answer in
intervention hereto attached as Annex (b) The cause of action of intervenors does not fall within the
'A', the said stockholders having a legal The foregoing allegations were further expanded and jurisdiction of the Sandiganbayan as expressly spelled out in
interest in the matter in litigation and in elaborated in the private respondents' Answer in P.D. No. 1606 and Executive Order No. 14;
the disposition of the properties listed in Intervention.
Annex 'A' of the Complaint as BREDCO
(c) Intervenors have no legal interest in the matter in
LOTS and shares of stock in Bacolod
On 2 December 1987, petitioner filed its Reply 5 to Answer In litigation, and the subject matter is not in custodia legis of
Real Estate Development Corporation.
Intervention, while private respondents filed a "Rejoinder to respondent court; and
Reply With Motion To Release BREDCO Lots 6 and also a
In justification, it is further respectfully "Motion To Calendar For Hearing" the motion to release
alleged that. BREDCO lots. 7 (d) Intervenors' claims, as contained in their Motion for
Intervention and Answer-in-Intervention, are claims between
and/or among Ferdinand and Imelda Marcos and their
1. Close examination of the Complaint, On 22 January 1988, respondent court promulgated a cronies, i.e., "members of their immediate family close
in particular par. 12 thereto under 'V. resolution 8 holding in abeyance action on the private relatives, subordinates, and/or business associates,
SPECIFIC AVERMENTS OF respondents' "Rejoinder to Reply with Motion to Release dummies, agents and nominees" and are cognizable not by
DEFENDANTS' ILLEGAL ACTS', makes BREDCO lots", and set the Motion for Leave to Intervene for respondent court but by the regular courts or other for a
no mention at all about BREDCO being hearing on 2 February 1988. Even if there would be multiple litigations, as among
the subject of any anomalous themselves, the legal effect remains, i.e., that there is only
transaction engaged in by any of the one case filed by the Republic against the named
On 11 March 1988, respondent court issued an order 9 giving
defendants, in consequence of which defendants in Civil Case No. 0025, grounded on causes of
petitioner fifteen (1 5) days from 11 March 1988 within which
the listed BREDCO lots could have been action entirely distinct from any cause of action which
to file its opposition and/or comment on the motion to
gotten illegally. It is to be observed, on intervenors may have against Mr. Marcos and his cronies.
The petition is not impressed with merit. jurisdiction of the Sandiganbayan' trial, be permitted by the court, in its discretion, to intervene
and all incidents arising from, incidental in an action, if he has legal interest in the matter in litigation,
to, or related to, such cases necessarily or in the success of either of the parties or an interest
The Rules of Court permit an aggrieved party, generally, to
fall likewise under the Sandiganbayan's against both, or when he is so situated as to be adversely
take a cause and apply for relief with the appellate courts by
exclusive and original jurisdiction, affected by a distribution or other disposition of property in
way of either of two distinct and dissimilar modes through the
subject to review on certiorari the custody of the court or of an officer thereof. 19
broad process of appeal or the limited special civil action of
exclusively by the Supreme Court.
certiorari. An appeal brings up for review errors of
(emphasis supplied)
judgment committed by a court of competent jurisdiction over The Court is not impressed with the contention of petitioner
the subject of the suit or the persons of the parties or any that the intervenors have no legal interest in the matter in
such error committed by the court in the exercise of its In reiterating the aforequoted ruling in six (6) subsequent litigation. In this connection, it would suffice to quote what
jurisdiction amounting to nothing more than an error of cases 16 which were decided jointly, again, the Court held the respondent court said in holding that the intervenors
judgment. On the other hand, the writ of certiorari issues for that- have a legal interest in the matter in litigation. Thus —
the correction of errors of jurisdiction only or grave abuse of
discretion amounting to lack or excess of jurisdiction. The
... the exclusive jurisdiction conferred on Has Palanca shown a proper case for
writ of certiorari cannot legally be used for any other
the Sandiganbayan would evidently intervention by him and his co-
purpose. In terms of its function, the writ of certiorari serves
extend not only to the principal causes stockholders who are similarly situated
to keep a lower court within the bounds of its jurisdiction or to
of action, i.e., the recovery of alleged ill- as he is?
prevent it from committing such a grave abuse of discretion
gotten wealth, but also to 'all incidents
amounting to excess of jurisdiction or to relieve parties from
arising from, incidental to, or related to,
arbitrary acts of courts — acts which courts have no power A narration of the pertinent facts alleged
such cases,' such as the dispute over
or authority in law to perform. 14 by Palanca and the plaintiff indicates the
the sale of the shares, the propriety of
answer.
the issuance of ancillary writs or
Hence, the main issue to be resolved in the present case, provisional remedies relative thereto, the
which is principally a petition for certiorari to annul and set sequestration thereof, which may not be In 1961, BREDCO
aside the questioned resolutions of respondent court is, made the subject of separate actions or was awarded by
whether or not the Sandiganbayan has jurisdiction over the proceedings in another forum. Bacolod City a
action for intervention, or if it has, whether respondent court contract to
acted with grave abuse of discretion amounting to lack or undertake the
Intervention is not an independent action, but is ancillary and
excess of its jurisdiction in rendering the questioned reclamation and
supplemental to an existing litigation. 17 Hence, the private
resolutions. port development of
respondents' action for intervention in Civil Case No. 0025,
the city. As of 1975,
not being an independent action, is merely incidental to, or
a sizeable portion of
In the present case, petitioner merely contends that the related to, the said civil case. Since the respondent
land had already
cause of action of intervenors does not fall within the Sandiganbayan has the exclusive and original jurisdiction
been reclaimed
jurisdiction of the Sandiganbayan as expressly spelled out in over Civil Case No. 0025, it has likewise original and
from the sea and
Presidential Decree No. 1606 and Executive Order No. 14; it exclusive jurisdiction over the private respondents' action for
corresponding
does not claim that respondent court committed grave abuse intervention therein.
torrens titles issued
of discretion amounting to lack or excess of its jurisdiction in
in BREDCO's
rendering the questioned resolutions.
Now, considering that respondent Sandiganbayan has name.
jurisdiction not only over Civil Case No. 0025 but also over
The jurisdiction of the Sandiganbayan has already been the private respondents' action for intervention, any error or
In that year,
settled in Presidential Commission on Good Government vs. irregularity that it may have committed in rendering its
BREDCO engaged
Hon. Emmanuel G. Penal, etc., et al. 15 where the Court held questioned resolutions, in the exercise of its jurisdiction,
MARSTEEL as a
that — amounts to an error of judgment, which is not correctable in
contractor to
the present petition for certiorari but by appeal.
complete the project
... Under Section 2 of the President's with power to
Executive Order No. 14 issued on May Accordingly, this case may be dismissed outright without the negotiate in its
7, 1986, all cases of the Commission Court having to pass upon the other issues raised in the name or jointly
regarding 'the funds, Moneys, Assets, petition. However, considering that the litigation below is of and/or severally
and Properties Illegally Acquired or I great public interest and involves a matter of public policy, with BREDCO for
Misappropriated by Former President the Court has decided to review the other errors allegedly loans to finance the
Ferdinand Marcos, Mrs. Imelda committed by respondent court in rendering its questioned reclamation and
Romualdez Marcos, their Close resolutions. port development,
Relatives, Subordinates, Business and to mortgage all
Associates, Dummies, Agents, or reclaimed lots and
In this jurisdiction, the law on "intervention" is found in the
Nominees whether civil or criminal, are other assets of the
Rules of Court. 18 Thus, a person may, before or during a
lodged within the 'exclusive and original project as security.
For its services, In September 1986, 'to intervene in an action, if he has legal
MARSTEEL shall the Presidential interest in the matter in litigation.'
receive 65% of the Commission on
excess of all Good Government
As a general rule
revenues over all (PCGG)
the right to
disbursements. sequestered all
intervene exists in
Accordingly, assets, properties,
favor of one who
BREDCO conveyed records and
claims to be the
to MARSTEEL 65% documents' of
owner or to have
of each lot already MARSTEEL, MCI,
some interest in the
reclaimed and that and BREDCO'. In
property which is
to be reclaimed. July 1987, the
the subject of
complaint at bar
litigation, and this
was filed and
In 1977, without particular
expanded in March
MARSTEEL regard to the value
1988. The
assigned to MCI, of the property or
pleadings, original
which owned 100% the right claimed
and expanded,
of its capital stock, therein. A third party
allege that the
all its rights, may intervene in a
defendants, acting
interests, sequestration suit
singly or
obligations, and involving title to
collectively,
undertakings in the personal property,
amassed ill-gotten
project. To enable and have his claims
wealth listed in
MCI to expand its to the possession of
Annex 'A' thereof,
base of negotiation the property
among which are
for loans needed in vindicated therein
the BREDCO lots
the reclamation and So, in an action for
and shares of stock,
port development possession of real
and pray that the ill-
the BREDCO or personal
gotten wealth be
stockholders property, an
reconveyed to the
transferred to MCI intervenor may be
plaintiff, plus
their respective admitted on the
damages.
shares of stock ground that he is an
Significantly,
amounting to 70% owner thereof,
however, the bodies
of the capital stock either to assist in
of the complaints do
of BREDCO. In the defense, or to
not mention
return, they 'shall be claim the property
anything about
entitled to a share for himself, or to
BREDCO, its
of 35% in excess of obtain some other
project, lots, and
all revenues over all relief germane to
stocks, nor about
disbursements of the action.' (59 Am
MCI.
the projects,' it Jur 2d, Parties, Sec.
being understood 152, p. 585,
that payment of the Under these alleged facts, Palanca has
corresponding established a proper case for
Secondly, the same Section 2, Rule 12,
share shall be due intervention. Firstly, he and his co-
further provides that intervention by a
to BREDCO stockholders have a legal interest in the
person may be permitted 'when he is so
stockholders as matter in litigation, namely, their 70% of
situated as to be adversely affected by a
owners of existing the capital stock of BREDCO, which
distribution or other disposition of
interests in the they transferred to MCI by way of
property in the custody of the court or of
project, regardless alleged accommodation, or its
an officer thereof.' On this point, the
of the fact that by equivalent of 35% of the excess of all
Supreme Court observed:
implementation of revenues over all disbursements, to
this AGREEMENT, which they are entitled 'as owners of
they ceased to be existing interests in the project.' Section We shall now speak
stockholders of 2, Rule 12, Revised Rules of Court, of the case where
BREDCO. provides that a person may be permitted the stranger desires
to intervene for the
purpose of Idly by and see the the fund or property
asserting a property property disposed in question, the
right in the res, or of without asserting motion to intervene
thing, which is the his rights. Though it should be granted,
subject-matter of be granted that the especially if such
the ligitation, litigation would not interest cannot be
without becoming a be technically otherwise properly
formal plaintiff or binding on him, protected. (Joaquin
defendant, and because of his not v. Herrera, 37 Phil.
without acquiring being a party, yet it 705, 722-724)
the control over the might well happen
course of a that complications
Here, the BREDCO lots and stocks were
litigation, which is would ensue
sequestered and are now in custodia
conceded to the whereby his rights
legis (Bernas, The Constitution of the
main actions (sic) would be materially
Republic of the Philippines, An
therein. The mode prejudiced. For
Annotated Text, 1987 ed., p. 129,
of intervention to instance, the
footnote 42). From the facts averred by
which reference is subject-matter of
Palanca and the plaintiff, it is easy to
now made is the litigation might
see that in the event We decide to order
denominated in consist of a fund to
the reconveyance of those assets to the
equity procedure he distributed, and
plaintiff, Palanca and his co-
the intervention pro the conditions might
stockholders in BREDCO stand to be
interesse suo and is be such that if it
adversely affected.
somewhat were turned over to
analogous to the the particular litigant
trial of a right of who should appear And thirdly, the legal interest of Palanca
property in an to have the better and his co-stockholders in the matter in
action of law, its right in the original litigation and the possibility of a
purpose being to action, the person judgment ordering reconveyance in
enable a person really having a favor of the plaintiff, invest them with
whose property gets superior title might legal interest in the success of the
into the clutches of be left without defendants, at least insofar as the
a court, in a redress. BREDCO lots and shares are
controversy Accordingly concerned. Section 2, Rule 12, also
between others, to provision is made permits intervention by a person who
go into court and to whereby persons has legal interest in the success of
procure it or its who have not been either of the parties. 20
proceeds to be joined as parties in
surrendered to him. the original
The petitioner's contention that the State cannot be sued
It often happens proceedings may
that a person who intervene and without its consent and that private respondents' action for
really owns assert a right intervention is, in legal effect, a suit or counter-suit against
the sovereign is also untenable.
property, or has a antagonistic or
superior lien or superior to that of
other interest in it, one or both of the The Rules of Court 21 provide that the intervention shall be
sees a litigation parties. (Bosworth made by complaint filed and served in regular form, and may
spring up between vs. Terminal etc. be answered as if it where an original complaint; but where
others who assert Assoc. of St. Louis, the intervenor unites with the defendant in resisting the
rights in or 174 U.S. 182,187, claims of the plaintiff, the intervention may be made in the
concerning it. If the 43 L. ed., 941, 943). form of an answer to the complaint. In order words, a third
court takes As regards the right person who makes himself a party to an existing litigation,
possession of the to intervene in this may either join the plaintiff in claiming what is sought in the
res, or otherwise manner, it may be filing a complaint in intervention, or by uniting with the
gets jurisdiction stated that if the defendant in resisting the claims of the plaintiff, by filing an
over it in such a party desiring to answer in intervention.
controversy, the intervene shows a
real owner is not legitimate and
compelled to stand proper interest in In Froilan v. Pan Oriental Shipping Co., 22 the plaintiff therein
Fernando A. Froilan filed a complaint against the defendant,
Pan Oriental Shipping Co. The Republic of the Philippines surrendering its privileged position and ACCORDINGLY, the petition in the present case is hereby
intervened by filing a complaint in intervention. Thereafter, coming down to the level of the DISMISSED.
the defendant filed its answer to the complaint in defendants what happened in the case
intervention, and set up a counterclaim against the Republic of Froilan vs. Pan Oriental Shipping Co.,
SO ORDERED.
of the Philippines. The trial court dismissed the defendants et al.-95 Phil. 905 cited by the plaintiff
counterclaim against the Republic on the ground, among but one where the State, as one of the
others, that the state is immune from suit. On appeal, this defendants merely resisted a claim G.R. No. 206510 September 16, 2014
Court held that the dismissal of the counterclaim was against it precisely on the ground,
untenable, because by filing its complaint in intervention the among others, of its privileged position
MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto
Government in effect waived its right to non-suability. which exempts it from suit. (emphasis
Princesa D.D.; MOST REV. DEOGRACIAS S. INIGUEZ,
supplied).
JR., Bishop-Emeritus of Caloocan, FRANCES Q.
In another case, Lim vs. Brownell, Jr. and Kagawa, 23 the QUIMPO, CLEMENTE G. BAUTISTA, JR., Kalikasan-PNE,
plaintiff Benito E. Lim, as administrator of the intestate estate In the present case, the private respondents intervened in MARIA CAROLINA P. ARAULLO, RENATO M. REYES,
of Arsenia Enriquez, filed a complaint in the Court of First Civil Case No. 0025 merely to unite with the defendants JR., Bagong Alyansang Makabayan, HON. NERI JAVIER
Instance of Manila against the Alien Property Administrator therein in resisting the claims of petitioner, as plaintiff, and COLMENARES, Bayan Muna Partylist, ROLAND G.
(later substituted by the Attorney General of the United for that reason asked for no affirmative relief against any SIMBULAN, PH.D., Junk VF A Movement, TERESITA R.
States) for the recovery of four (4) parcels of land (which party in their answer in intervention. In other words, this is PEREZ, PH.D., HON. RAYMOND V. PALATINO, Kabataan
were subsequently transferred to the Republic of the not a case where the private respondents take the initiative Party-list, PETER SJ. GONZALES, Pamalakaya,
Philippines) with a prayer for the payment of back rentals. in an action against petitioner by filing a complaint in GIOVANNI A. TAPANG, PH. D., Agham, ELMER C.
The Republic of the Philippines intervened in the case. The intervention or a complaint. As observed by respondent LABOG, Kilusang Mayo Uno, JOAN MAY E. SALVADOR,
defendant Attorney General of the United States and the Sandiganbayan: Gabriela, JOSE ENRIQUE A. AFRICA, THERESA A.
defendant- intervenor Republic of the Philippines each filed CONCEPCION, MARY JOAN A. GUAN, NESTOR T.
an answer, alleging by way of affirmative defense, among BAGUINON, PH.D., A. EDSEL F. TUPAZ, Petitioners,
In intervening, Palanca and his co-
others, that the lower court had no jurisdiction over the claim vs.
stockholders have for their purpose to
for rentals since the action in that regard constituted a suit SCOTT H. SWIFT in his capacity as Commander of the
exclude the BREDCO lots and stocks or,
against the Republic to which it had not given its consent. US. 7th Fleet, MARK A. RICE in his capacity as
at least, their 35% interest in the
The trial court dismissed the complaint for lack of jurisdiction. Commanding Officer of the USS Guardian, PRESIDENT
BREDCO project from any possible
On appeal, this Court affirmed, with the following reasons: BENIGNO S. AQUINO III in his capacity as Commander-
judgment directing reconveyance of the
in-Chief of the Armed Forces of the Philippines, HON.
alleged ill-gotten wealth to the plaintiff.
ALBERT F. DEL ROSARIO, Secretary, pepartment of
The claim for damages for the use of the They do not pray for damages against
Foreign Affair.s, HON. PAQUITO OCHOA, JR.,
property against the intervenor the latter. In effect, they occupy a
Executiv~.:Secretary, Office of the President, . HON.
defendant Republic of the Philippines to defensive position as regards those
VOLTAIRE T. GAZMIN, Secretary, Department of
which it was transferred, likewise, shares of stock or interest. The fact that
National Defense, HON. RAMON JESUS P. P AJE,
cannot be maintained because of the they interjected themselves into his
Secretary, Department of Environment and Natural
immunity of the state from suit. The litigation at their own initiative does not
Resoz!rces, VICE ADMIRAL JOSE LUIS M. ALANO,
claim obviously constitutes a charge alter the essential nature of their
Philippine Navy Flag Officer in Command, Armed Forces
against, or financial liability to, the intervention." 24
of the Philippines, ADMIRAL RODOLFO D. ISO RENA,
Government and consequently cannot
Commandant, Philippine Coast Guard, COMMODORE
be entertained by the courts except with
Private respondents' action for intervention in Civil Case No. ENRICO EFREN EVANGELISTA, Philippine Coast Guard
the consent of said government. (Syquia
0025 is not, therefore, a suit or counter-suit against petitioner Palawan, MAJOR GEN. VIRGILIO 0. DOMINGO,
vs. Almeda Lopez, 84 Phil. 312; 47 Off.
Republic of the Philippines. Commandant of Armed Forces of the Philippines
Gaz., 665; Compania General de
Command and LT. GEN. TERRY G. ROBLING, US Marine
Tabacos vs. Govt. of the PI 45 Phil.,
Corps Forces. Pacific and Balikatan 2013 Exercise Co-
663). Plaintiff argues that by its Having arrived at the above conclusions, the Court finds no
Director, Respondents.
intervention, the Republic of the need to further discuss the petitioner's pretense that the
Philippines, in effect, waived its right of private respondents' claims are claims as between and/or
non-suability, but it will be remembered among Ferdinand and Imelda Marcos, et al., and that the DECISION
that the Republic intervened in the case same is not cognizable by respondent Sandiganbayan but by
merely to unite with the defendant the regular courts. It suffices to state that, as already stated,
VILLARAMA, JR, J.:
Attorney General of the United States in in intervening in Civil Case No. 0025, private respondents
resisting plaintiffs claims, and for that merely joined the defendants therein in resisting the claims
reason asked no affirmative relief of petitioner, as plaintiff, and that they asked no affirmative Before us is a petition for the issuance of a Writ of Kalikasan
against any party in the answer in relief against any party in their answer in intervention. They with prayer for the issuance of a Temporary Environmental
intervention. x x x. Clearly, this is not a do not appear to have any controversy with the defendants, Protection Order (TEPO) under Rule 7 of A.M. No. 09-6-8-
case where the State takes the initiative Ferdinand and Imelda Marcos, et al. SC, otherwise known as the Rules of Procedure for
in an action against a private party by Environmental Cases (Rules), involving violations of
filing a complaint in intervention, thereby environmental laws and regulations in relation to the
grounding of the US military ship USS Guardian over the Bay for the purpose of routine ship replenishment, events violate their constitutional rights to a balanced and
Tubbataha Reefs. maintenance, and crew liberty."4 On January 6, 2013, the healthful ecology. They also seek a directive from this Court
ship left Sasebo, Japan for Subic Bay, arriving on January for the institution of civil, administrative and criminal suits for
13, 2013 after a brief stop for fuel in Okinawa, acts committed in violation of environmental laws and
Factual Background
Japan.1âwphi1 regulations in connection with the grounding incident.

The name "Tubbataha" came from the Samal (seafaring


On January 15, 2013, the USS Guardian departed Subic Bay Specifically, petitioners cite the following violations
people of southern Philippines) language which means "long
for its next port of call in Makassar, Indonesia. On January committed by US respondents under R.A. No. 10067:
reef exposed at low tide." Tubbataha is composed of two
17, 2013 at 2:20 a.m. while transiting the Sulu Sea, the ship unauthorized entry (Section 19); non-payment of
huge coral atolls - the north atoll and the south atoll - and the
ran aground on the northwest side of South Shoal of the conservation fees (Section 21 ); obstruction of law
Jessie Beazley Reef, a smaller coral structure about 20
Tubbataha Reefs, about 80 miles east-southeast of enforcement officer (Section 30); damages to the reef
kilometers north of the atolls. The reefs of Tubbataha and
Palawan. No cine was injured in the incident, and there have (Section 20); and destroying and disturbing resources
Jessie Beazley are considered part of Cagayancillo, a
been no reports of leaking fuel or oil. (Section 26[g]). Furthermore, petitioners assail certain
remote island municipality of Palawan.1
provisions of the Visiting Forces Agreement (VFA) which
they want this Court to nullify for being unconstitutional.
On January 20, 2013, U.S. 7th Fleet Commander, Vice
In 1988, Tubbataha was declared a National Marine Park by
Admiral Scott Swift, expressed regret for the incident in a
virtue of Proclamation No. 306 issued by President Corazon
press statement.5 Likewise, US Ambassador to the The numerous reliefs sought in this case are set forth in the
C. Aquino on August 11, 1988. Located in the middle of
Philippines Harry K. Thomas, Jr., in a meeting at the final prayer of the petition, to wit: WHEREFORE, in view of
Central Sulu Sea, 150 kilometers southeast of Puerto
Department of Foreign Affairs (DFA) on February 4, the foregoing, Petitioners respectfully pray that the
Princesa City, Tubbataha lies at the heart of the Coral
"reiterated his regrets over the grounding incident and Honorable Court: 1. Immediately issue upon the filing of this
Triangle, the global center of marine biodiversity.
assured Foreign Affairs Secretazy Albert F. del Rosario that petition a Temporary Environmental Protection Order
the United States will provide appropriate compensation for (TEPO) and/or a Writ of Kalikasan, which shall, in particular,
In 1993, Tubbataha was inscribed by the United Nations damage to the reef caused by the ship."6 By March 30, 2013,
Educational Scientific and Cultural Organization (UNESCO) the US Navy-led salvage team had finished removing the
a. Order Respondents and any person acting on
as a World Heritage Site. It was recognized as one of the last piece of the grounded ship from the coral reef.
their behalf, to cease and desist all operations
Philippines' oldest ecosystems, containing excellent
over the Guardian grounding incident;
examples of pristine reefs and a high diversity of marine life.
On April 1 7, 2013, the above-named petitioners on their
The 97,030-hectare protected marine park is also an
behalf and in representation of their respective
important habitat for internationally threatened and b. Initially demarcating the metes and bounds of
sector/organization and others, including minors or
endangered marine species. UNESCO cited Tubbataha's the damaged area as well as an additional buffer
generations yet unborn, filed the present petition agairtst
outstanding universal value as an important and significant zone;
Scott H. Swift in his capacity as Commander of the US 7th
natural habitat for in situ conservation of biological diversity;
Fleet, Mark A. Rice in his capacity as Commanding Officer of
an example representing significant on-going ecological and
the USS Guardian and Lt. Gen. Terry G. Robling, US Marine c. Order Respondents to stop all port calls and war
biological processes; and an area of exceptional natural
Corps Forces, Pacific and Balikatan 2013 Exercises Co- games under 'Balikatan' because of the absence
beauty and aesthetic importance.2
Director ("US respondents"); President Benigno S. Aquino III of clear guidelines, duties, and liability schemes for
in his capacity as Commander-in-Chief of the Armed Forces breaches of those duties, and require
On April 6, 2010, Congress passed Republic Act (R.A.) No. of the Philippines (AFP), DF A Secretary Albert F. Del Respondents to assume responsibility for prior and
10067,3 otherwise known as the "Tubbataha Reefs Natural Rosario, Executive Secretary Paquito Ochoa, Jr., Secretary future environmental damage in general, and
Park (TRNP) Act of 2009" "to ensure the protection and Voltaire T. Gazmin (Department of National Defense), environmental damage under the Visiting Forces
conservation of the globally significant economic, biological, Secretary Jesus P. Paje (Department of Environment and Agreement in particular.
sociocultural, educational and scientific values of the Natural Resources), Vice-Admiral Jose Luis M. Alano
Tubbataha Reefs into perpetuity for the enjoyment of present (Philippine Navy Flag Officer in Command, AFP), Admiral
d. Temporarily define and describe allowable
and future generations." Under the "no-take" policy, entry Rodolfo D. Isorena (Philippine Coast Guard Commandant),
Commodore Enrico Efren Evangelista (Philippine Coast activities of ecotourism, diving, recreation, and
into the waters of TRNP is strictly regulated and many
Guard-Palawan), and Major General Virgilio 0. Domingo limited commercial activities by fisherfolk and
human activities are prohibited and penalized or fined,
indigenous communities near or around the TRNP
including fishing, gathering, destroying and disturbing the (AFP Commandant), collectively the "Philippine
respondents." but away from the damaged site and an additional
resources within the TRNP. The law likewise created the
buffer zone;
Tubbataha Protected Area Management Board (TPAMB)
which shall be the sole policy-making and permit-granting
The Petition
body of the TRNP. 2. After summary hearing, issue a Resolution
extending the TEPO until further orders of the
Petitioners claim that the grounding, salvaging and post- Court;
The USS Guardian is an Avenger-class mine
salvaging operations of the USS Guardian cause and
countermeasures ship of the US Navy. In December 2012,
continue to cause environmental damage of such magnitude
the US Embassy in the Philippines requested diplomatic 3. After due proceedings, render a Decision which
as to affect the provinces of Palawan, Antique, Aklan,
clearance for the said vessel "to enter and exit the territorial shall include, without limitation:
Guimaras, Iloilo, Negros Occidental, Negros Oriental,
waters of the Philippines and to arrive at the port of Subic
Zamboanga del Norte, Basilan, Sulu, and Tawi-Tawi, which
a. Order Respondents Secretary of Foreign j. Direct Respondents to undertake measures to Respondents' Consolidated Comment
Affairs, following the dispositive portion of Nicolas rehabilitate the areas affected by the grounding of
v. Romulo, "to forthwith negotiate with the United the Guardian in light of Respondents' experience
In their consolidated comment with opposition to the
States representatives for the appropriate in the Port Royale grounding in 2009, among other
application for a TEPO and ocular inspection and production
agreement on [environmental guidelines and similar grounding incidents;
orders, respondents assert that: ( 1) the grounds relied upon
environmental accountability] under Philippine
for the issuance of a TEPO or writ of Kalikasan have become
authorities as provided in Art. V[] of the VFA ... "
k. Require Respondents to regularly publish on a fait accompli as the salvage operations on the USS Guardian
quarterly basis and in the name of transparency were already completed; (2) the petition is defective in form
b. Direct Respondents and appropriate agencies and accountability such environmental damage and substance; (3) the petition improperly raises issues
to commence administrative, civil, and criminal assessment, valuation, and valuation methods, in involving the VFA between the Republic of the Philippines
proceedings against erring officers and individuals all stages of negotiation; and the United States of America; and ( 4) the determination
to the full extent of the law, and to make such of the extent of responsibility of the US Government as
proceedings public; regards the damage to the Tubbataha Reefs rests
l. Convene a multisectoral technical working group
exdusively with the executive branch.
to provide scientific and technical support to the
c. Declare that Philippine authorities may exercise TPAMB;
primary and exclusive criminal jurisdiction over The Court's Ruling
erring U.S. personnel under the circumstances of
m. Order the Department of Foreign Affairs,
this case;
Department of National Defense, and the As a preliminary matter, there is no dispute on the legal
Department of Environment and Natural standing of petitioners to file the present petition.
d. Require Respondents to pay just and Resources to review the Visiting Forces
reasonable compensation in the settlement of all Agreement and the Mutual Defense Treaty to
Locus standi is "a right of appearance in a court of justice on
meritorious claims for damages caused to the consider whether their provisions allow for the
a given question."10 Specifically, it is "a party's personal and
Tubbataha Reef on terms and conditions no less exercise of erga omnes rights to a balanced and
substantial interest in a case where he has sustained or will
severe than those applicable to other States, and healthful ecology and for damages which follow
sustain direct injury as a result" of the act being challenged,
damages for personal injury or death, if such had from any violation of those rights;
and "calls for more than just a generalized
been the case;
grievance."11 However, the rule on standing is a procedural
n. Narrowly tailor the provisions of the Visiting matter which this Court has relaxed for non-traditional
e. Direct Respondents to cooperate in providing Forces Agreement for purposes of protecting the plaintiffs like ordinary citizens, taxpayers and legislators
for the attendance of witnesses and in the damaged areas of TRNP; when the public interest so requires, such as when the
collection and production of evidence, including subject matter of the controversy is of transcendental
seizure and delivery of objects connected with the importance, of overreaching significance to society, or of
o. Declare the grant of immunity found in Article V
offenses related to the grounding of the Guardian; paramount public interest.12
("Criminal Jurisdiction") and Article VI of the
Visiting Forces Agreement unconstitutional for
f. Require the authorities of the Philippines and the violating equal protection and/or for violating the In the landmark case of Oposa v. Factoran, Jr., 13 we
United States to notify each other of the preemptory norm of nondiscrimination recognized the "public right" of citizens to "a balanced and
disposition of all cases, wherever heard, related to incorporated as part of the law of the land under healthful ecology which, for the first time in our constitutional
the grounding of the Guardian; Section 2, Article II, of the Philippine Constitution; history, is solemnly incorporated in the fundamental law." We
declared that the right to a balanced and healthful ecology
need not be written in the Constitution for it is assumed, like
g. Restrain Respondents from proceeding with any p. Allow for continuing discovery measures;
other civil and polittcal rights guaranteed in the Bill of Rights,
purported restoration, repair, salvage or post
to exist from the inception of mankind and it is an issue of
salvage plan or plans, including cleanup plans
q. Supervise marine wildlife rehabilitation in the transcendental importance with intergenerational
covering the damaged area of the Tubbataha Reef
Tubbataha Reefs in all other respects; and implications.1âwphi1 Such right carries with it the correlative
absent a just settlement approved by the
duty to refrain from impairing the environment.14
Honorable Court;
4. Provide just and equitable environmental
rehabilitation measures and such other reliefs as On the novel element in the class suit filed by the petitioners
h. Require Respondents to engage in stakeholder
are just and equitable under the minors in Oposa, this Court ruled that not only do ordinary
and LOU consultations in accordance with the
premises.7 (Underscoring supplied.) citizens have legal standing to sue for the enforcement of
Local Government Code and R.A. 10067;
environmental rights, they can do so in representation of
their own and future generations. Thus:
Since only the Philippine respondents filed their comment8 to
i. Require Respondent US officials and their
the petition, petitioners also filed a motion for early resolution
representatives to place a deposit to the TRNP
and motion to proceed ex parte against the US Petitioners minors assert that they represent their generation
Trust Fund defined under Section 17 of RA 10067
respondents.9 as well as generations yet unborn. We find no difficulty in
as a bona .fide gesture towards full reparations;
ruling that they can, for themselves, for others of their
generation and for the succeeding generations, file a class
suit. Their personality to sue in behalf of the succeeding and consequence of its membership in the society of capacity, the complaint could be barred by the immunity of
generations can only be based on the concept of nations. Upon its admission to such society, the state is the foreign sovereign from suit without its consent. Suing a
intergenerational responsibility insofar as the right to a automatically obligated to comply with these principles in its representative of a state is believed to be, in effect, suing the
balanced and healthful ecology is concerned. Such a right, relations with other states. state itself. The proscription is not accorded for the benefit of
as hereinafter expounded, considers the "rhythm and an individual but for the State, in whose service he is, under
harmony of nature." Nature means the created world in its the maxim -par in parem, non habet imperium -that all states
As applied to the local state, the doctrine of state immunity is
entirety. Such rhythm and harmony indispensably include, are soverr~ign equals and cannot assert jurisdiction over one
based on the justification given by Justice Holmes that ''there
inter alia, the judicious disposition, utilization, management, another. The implication, in broad terms, is that if the
can be no legal right against the authority which makes the
renewal and conservation of the country's forest, mineral, judgment against an official would rec 1uire the state itself to
law on which the right depends." [Kawanakoa v. Polybank,
land, waters, fisheries, wildlife, off-shore areas and other perform an affirmative act to satisfy the award, such as the
205 U.S. 349] There are other practical reasons for the
natural resources to the end that their exploration, appropriation of the amount needed to pay the damages
enforcement of the doctrine. In the case of the foreign state
development and utilization be equitably accessible to the decreed against him, the suit must be regarded as being
sought to be impleaded in the local jurisdiction, the added
present a:: well as future generations. Needless to say, against the state itself, although it has not been formally
inhibition is expressed in the maxim par in parem, non habet
every generation has a responsibility to the next to preserve impleaded.21 (Emphasis supplied.)
imperium. All states are sovereign equals and cannot assert
that rhythm and harmony for the full 1:njoyment of a
jurisdiction over one another. A contrary disposition would, in
balanced and healthful ecology. Put a little differently, the
the language of a celebrated case, "unduly vex the peace of In the same case we also mentioned that in the case of
minors' assertion of their right to a sound environment
nations." [De Haber v. Queen of Portugal, 17 Q. B. 171] diplomatic immunity, the privilege is not an immunity from the
constitutes, at the same time, the performance of their
observance of the law of the territorial sovereign or from
obligation to ensure the protection of that right for the
ensuing legal liability; it is, rather, an immunity from the
generations to come.15 (Emphasis supplied.) While the doctrine appears to prohibit only suits against the
exercise of territorial jurisdiction.22
state without its consent, it is also applicable to complaints
filed against officials of the state for acts allegedly performed
The liberalization of standing first enunciated in Oposa,
by them in the discharge of their duties. The rule is that if the In United States of America v. Judge Guinto,23 one of the
insofar as it refers to minors and generations yet unborn, is
judgment against such officials will require the state itself to consolidated cases therein involved a Filipino employed at
now enshrined in the Rules which allows the filing of a citizen
perform an affirmative act to satisfy the same,. such as the Clark Air Base who was arrested following a buy-bust
suit in environmental cases. The provision on citizen suits in
appropriation of the amount needed to pay the damages operation conducted by two officers of the US Air Force, and
the Rules "collapses the traditional rule on personal and
awarded against them, the suit must be regarded as against was eventually dismissed from his employment when he was
direct interest, on the principle that humans are stewards of
the state itself although it has not been formally impleaded. charged in court for violation of R.A. No. 6425. In a complaint
nature."16
[Garcia v. Chief of Staff, 16 SCRA 120] In such a situation, for damages filed by the said employee against the military
the state may move to dismiss the comp.taint on the ground officers, the latter moved to dismiss the case on the ground
Having settled the issue of locus standi, we shall address the that it has been filed without its consent. 19 (Emphasis that the suit was against the US Government which had not
more fundamental question of whether this Court has supplied.) given its consent. The RTC denied the motion but on a
jurisdiction over the US respondents who did not submit any petition for certiorari and prohibition filed before this Court,
pleading or manifestation in this case. we reversed the RTC and dismissed the complaint. We held
Under the American Constitution, the doctrine is expressed
that petitioners US military officers were acting in the
in the Eleventh Amendment which reads:
exercise of their official functions when they conducted the
The immunity of the State from suit, known also as the
buy-bust operation against the complainant and thereafter
doctrine of sovereign immunity or non-suability of the
The Judicial power of the United States shall not be testified against him at his trial. It follows that for discharging
State,17is expressly provided in Article XVI of the 1987
construed to extend to any suit in law or equity, commenced their duties as agents of the United States, they cannot be
Constitution which states:
or prosecuted against one of the United States by Citizens of directly impleaded for acts imputable to their principal, which
another State, or by Citizens or Subjects of any Foreign has not given its consent to be sued.
Section 3. The State may not be sued without its consent. State.
This traditional rule of State immunity which exempts a State
In United States of America v. Judge Guinto,18 we discussed In the case of Minucher v. Court of Appeals, 20 we further from being sued in the courts of another State without the
the principle of state immunity from suit, as follows: expounded on the immunity of foreign states from the former's consent or waiver has evolved into a restrictive
jurisdiction of local courts, as follows: doctrine which distinguishes sovereign and governmental
acts (Jure imperil") from private, commercial and proprietary
The rule that a state may not be sued without its consent, acts (Jure gestionis). Under the restrictive rule of State
now · expressed in Article XVI, Section 3, of the 1987 The precept that a State cannot be sued in the courts of a immunity, State immunity extends only to acts Jure imperii.
Constitution, is one of the generally accepted principles of foreign state is a long-standing rule of customary
The restrictive application of State immunity is proper only
international law that we have adopted as part of the law of international law then closely identified with the personal when the proceedings arise out of commercial transactions
our land under Article II, Section 2. x x x. immunity of a foreign sovereign from suit and, with the of the foreign sovereign, its commercial activities or
emergence of democratic states, made to attach not just to
economic affairs.24
the person of the head of state, or his representative, but
Even without such affirmation, we would still be bound by the
also distinctly to the state itself in its sovereign capacity. If
generally accepted principles of international law under the In Shauf v. Court of Appeals,25 we discussed the limitations
the acts giving rise to a suit arc those of a foreign
doctrine of incorporation. Under this doctrine, as accepted by
government done by its foreign agent, although not of the State immunity principle, thus:
the majority of states, such principles are deemed
necessarily a diplomatic personage, but acting in his official
incorporated in the law of every civilized state as a condition
It is a different matter where the public official is made to (UNCLOS). He explained that while historically, warships territorial sea and disregards any request for compliance
account in his capacity as such for acts contrary to law and enjoy sovereign immunity from suit as extensions of their flag therewith which is made to it, the coastal State may require it
injurious to the rights of plaintiff. As was clearly set forth by State, Art. 31 of the UNCLOS creates an exception to this to leave the territorial sea immediately.
JustiGe Zaldivar in Director of the Bureau of rule in cases where they fail to comply with the rules and
Telecommunications, et al. vs. Aligaen, etc., et al. : regulations of the coastal State regarding passage through
Article 31
"Inasmuch as the State authorizes only legal acts by its the latter's internal waters and the territorial sea.
Responsibility of the flag State for damage caused by a
officers, unauthorized acts of government officials or officers
warship
are not acts of the State, and an action against the officials
According to Justice Carpio, although the US to date has not
or officers by one whose rights have been invaded or
ratified the UNCLOS, as a matter of long-standing policy the
violated by such acts, for the protection of his rights, is not a or other government ship operated for non-commercial
US considers itself bound by customary international rules
suit against the State within the rule of immunity of the State purposes
on the "traditional uses of the oceans" as codified in
from suit. In the same tenor, it has been said that an action
UNCLOS, as can be gleaned from previous declarations by
at law or suit in equity against a State officer or the director
former Presidents Reagan and Clinton, and the US judiciary The flag State shall bear international responsibility for any
of a State department on the ground that, while claiming to
in the case of United States v. Royal Caribbean Cruise loss or damage to the coastal State resulting from the non-
act for the State, he violates or invades the personal and
Lines, Ltd.27 compliance by a warship or other government ship operated
property rights of the plaintiff, under an unconstitutional act
for non-commercial purposes with the laws and regulations
or under an assumption of authority which he does not have,
is not a suit against the State within the constitutional of the coastal State concerning passage through the
The international law of the sea is generally defined as "a
provision that the State may not be sued without its consent." territorial sea or with the provisions of this Convention or
body of treaty rules arid customary norms governing the
other rules of international law.
The rationale for this ruling is that the doctrine of state uses of the sea, the exploitation of its resources, and the
immunity cannot be used as an instrument for perpetrating exercise of jurisdiction over maritime regimes. It is a branch
an injustice. of public international law, regulating the relations of states Article 32
with respect to the uses of the oceans."28 The UNCLOS is a Immunities of warships and other government ships
multilateral treaty which was opened for signature on operated for non-commercial purposes
xxxx
December 10, 1982 at Montego Bay, Jamaica. It was ratified
by the Philippines in 1984 but came into force on November
With such exceptions as are contained in subsection A and
The aforecited authorities are clear on the matter. They state 16, 1994 upon the submission of the 60th ratification.
that the doctrine of immunity from suit will not apply and may in articles 30 and 31, nothing in this Convention affects the
not be invoked where the public official is being sued in his immunities of warships and other government ships operated
The UNCLOS is a product of international negotiation that for non-commercial purposes. (Emphasis supplied.) A
private and personal capacity as an ordinary citizen. The
seeks to balance State sovereignty (mare clausum) and the foreign warship's unauthorized entry into our internal waters
cloak of protection afforded the officers and agents of the
principle of freedom of the high seas (mare liberum).29 The with resulting damage to marine resources is one situation in
government is removed the moment they are sued in their
freedom to use the world's marine waters is one of the oldest which the above provisions may apply. But what if the
individual capacity. This situation usually arises where the
customary principles of international law.30 The UNCLOS offending warship is a non-party to the UNCLOS, as in this
public official acts without authority or in excess of the
gives to the coastal State sovereign rights in varying degrees case, the US?
powers vested in him. It is a well-settled principle of law that
over the different zones of the sea which are: 1) internal
a public official may be liable in his personal private capacity
waters, 2) territorial sea, 3) contiguous zone, 4) exclusive
for whatever damage he may have caused by his act done An overwhelming majority - over 80% -- of nation states are
economic zone, and 5) the high seas. It also gives coastal
with malice and in bad faith, or beyond the scope of his now members of UNCLOS, but despite this the US, the
States more or less jurisdiction over foreign vessels
authority or jurisdiction.26 (Emphasis supplied.) In this case, world's leading maritime power, has not ratified it.
depending on where the vessel is located.31
the US respondents were sued in their official capacity as
commanding officers of the US Navy who had control and
supervision over the USS Guardian and its crew. The While the Reagan administration was instrumental in
Insofar as the internal waters and territorial sea is
alleged act or omission resulting in the unfortunate concerned, the Coastal State exercises sovereignty, subject UNCLOS' negotiation and drafting, the U.S. delegation
grounding of the USS Guardian on the TRNP was committed to the UNCLOS and other rules of international law. Such ultimately voted against and refrained from signing it due to
while they we:re performing official military duties. concerns over deep seabed mining technology transfer
sovereignty extends to the air space over the territorial sea
Considering that the satisfaction of a judgment against said as well as to its bed and subsoil.32 provisions contained in Part XI. In a remarkable, multilateral
officials will require remedial actions and appropriation of effort to induce U.S. membership, the bulk of UNCLOS
funds by the US government, the suit is deemed to be one member states cooperated over the succeeding decade to
against the US itself. The principle of State immunity In the case of warships,33 as pointed out by Justice Carpio, revise the objection.able provisions. The revisions satisfied
they continue to enjoy sovereign immunity subject to the the Clinton administration, which signed the revised Part XI
therefore bars the exercise of jurisdiction by this Court over
the persons of respondents Swift, Rice and Robling. following exceptions: implementing agreement in 1994. In the fall of 1994,
President Clinton transmitted UNCLOS and the Part XI
implementing agreement to the Senate requesting its advice
Article 30
During the deliberations, Senior Associate Justice Antonio T. and consent. Despite consistent support from President
Carpio took the position that the conduct of the US in this Non-compliance by warships with the laws and regulations of
Clinton, each of his successors, and an ideologically diverse
case, when its warship entered a restricted area in violation the coastal State
array of stakeholders, the Senate has since withheld the
of R.A. No. 10067 and caused damage to the TRNP reef consent required for the President to internationally bind the
system, brings the matter within the ambit of Article 31 of the If any warship does not comply with the laws and regulations United States to UNCLOS.
United Nations Convention on the Law of the Sea of the coastal State concerning passage through the
While UNCLOS cleared the Senate Foreign Relations of the Sea Convention that first established the concept of a promote "common security interests" between the US and
Committee (SFRC) during the 108th and 110th Congresses, maritime Exclusive Economic Zone out to 200 nautical miles, the Philippines in the region. It provides for the guidelines to
its progress continues to be hamstrung by significant pockets and recognized the rights of coastal states to conserve and govern such visits of military personnel, and further defines
of political ambivalence over U.S. participation in manage the natural resources in this Zone.35 the rights of the United States and the Philippine government
international institutions. Most recently, 111 th Congress in the matter of criminal jurisdiction, movement of vessel and
SFRC Chairman Senator John Kerry included "voting out" aircraft, importation and exportation of equipment, materials
We fully concur with Justice Carpio's view that non-
UNCLOS for full Senate consideration among his highest and supplies.36 The invocation of US federal tort laws and
membership in the UNCLOS does not mean that the US will
priorities. This did not occur, and no Senate action has been even common law is thus improper considering that it is the
disregard the rights of the Philippines as a Coastal State
taken on UNCLOS by the 112th Congress.34 VF A which governs disputes involving US military ships and
over its internal waters and territorial sea. We thus expect
crew navigating Philippine waters in pursuance of the
the US to bear "international responsibility" under Art. 31 in
objectives of the agreement.
Justice Carpio invited our attention to the policy statement connection with the USS Guardian grounding which
given by President Reagan on March 10, 1983 that the US adversely affected the Tubbataha reefs. Indeed, it is difficult
will "recognize the rights of the other , states in the waters off to imagine that our long-time ally and trading partner, which As it is, the waiver of State immunity under the VF A pertains
their coasts, as reflected in the convention [UNCLOS], so has been actively supporting the country's efforts to preserve only to criminal jurisdiction and not to special civil actions
long as the rights and freedom of the United States and our vital marine resources, would shirk from its obligation to such as the present petition for issuance of a writ of
others under international law are recognized by such compensate the damage caused by its warship while Kalikasan. In fact, it can be inferred from Section 17, Rule 7
coastal states", and President Clinton's reiteration of the US transiting our internal waters. Much less can we comprehend of the Rules that a criminal case against a person charged
policy "to act in a manner consistent with its [UNCLOS] a Government exercising leadership in international affairs, with a violation of an environmental law is to be filed
provisions relating to traditional uses of the oceans and to unwilling to comply with the UNCLOS directive for all nations separately:
encourage other countries to do likewise." Since Article 31 to cooperate in the global task to protect and preserve the
relates to the "traditional uses of the oceans," and "if under marine environment as provided in Article 197, viz:
SEC. 17. Institution of separate actions.-The filing of a
its policy, the US 'recognize[s] the rights of the other states in
petition for the issuance of the writ of kalikasan shall not
the waters off their coasts,"' Justice Carpio postulates that
Article 197 preclude the filing of separate civil, criminal or administrative
"there is more reason to expect it to recognize the rights of
Cooperation on a global or regional basis actions.
other states in their internal waters, such as the Sulu Sea in
this case."
States shall cooperate on a global basis and, as appropriate, In any case, it is our considered view that a ruling on the
on a regional basis, directly or through competent application or non-application of criminal jurisdiction
As to the non-ratification by the US, Justice Carpio
international organizations, in formulating and elaborating provisions of the VF A to US personnel who may be found
emphasizes that "the US' refusal to join the UN CLOS was
international rules, standards and recommended practices responsible for the grounding of the USS Guardian, would be
centered on its disagreement with UN CLOS' regime of deep
and procedures consistent with this Convention, for the premature and beyond the province of a petition for a writ of
seabed mining (Part XI) which considers the oceans and
protection and preservation of the marine environment, Kalikasan. We also find it unnecessary at this point to
deep seabed commonly owned by mankind," pointing out
taking into account characteristic regional features. determine whether such waiver of State immunity is indeed
that such "has nothing to do with its [the US'] acceptance of
absolute. In the same vein, we cannot grant damages which
customary international rules on navigation."
have resulted from the violation of environmental laws. The
In fine, the relevance of UNCLOS provisions to the present
Rules allows the recovery of damages, including the
controversy is beyond dispute. Although the said treaty
It may be mentioned that even the US Navy Judge Advocate collection of administrative fines under R.A. No. 10067, in a
upholds the immunity of warships from the jurisdiction of
General's Corps publicly endorses the ratification of the separate civil suit or that deemed instituted with the criminal
Coastal States while navigating the.latter's territorial sea, the
UNCLOS, as shown by the following statement posted on its action charging the same violation of an environmental law.37
flag States shall be required to leave the territorial '::;ea
official website:
immediately if they flout the laws and regulations of the
Coastal State, and they will be liable for damages caused by Section 15, Rule 7 enumerates the reliefs which may be
The Convention is in the national interest of the United their warships or any other government vessel operated for granted in a petition for issuance of a writ of Kalikasan, to
States because it establishes stable maritime zones, non-commercial purposes under Article 31. wit:
including a maximum outer limit for territorial seas; codifies
innocent passage, transit passage, and archipelagic sea
Petitioners argue that there is a waiver of immunity from suit SEC. 15. Judgment.-Within sixty (60) days from the time the
lanes passage rights; works against "jurisdictiomtl creep" by
found in the VFA. Likewise, they invoke federal statutes in petition is submitted for decision, the court shall render
preventing coastal nations from expanding their own
the US under which agencies of the US have statutorily judgment granting or denying the privilege of the writ of
maritime zones; and reaffirms sovereign immunity of
waived their immunity to any action. Even under the common kalikasan.
warships, auxiliaries anJ government aircraft.
law tort claims, petitioners asseverate that the US
respondents are liable for negligence, trespass and
The reliefs that may be granted under the writ are the
xxxx nuisance.
following:

Economically, accession to the Convention would support We are not persuaded.


(a) Directing respondent to permanently cease and
our national interests by enhancing the ability of the US to
desist from committing acts or neglecting the
assert its sovereign rights over the resources of one of the
The VFA is an agreement which defines the treatment of performance of a duty in violation of environmental
largest continental shelves in the world. Further, it is the Law
United States troops and personnel visiting the Philippines to
laws resulting in environmental destruction or SEC. 3. Referral to mediation.-At the start of the pre-trial To underscore that the US government is prepared to pay
damage; conference, the court shall inquire from the parties if they appropriate compensation for the damage caused by the
have settled the dispute; otherwise, the court shall USS Guardian grounding, the US Embassy in the Philippines
immediately refer the parties or their counsel, if authorized has announced the formation of a US interdisciplinary
(b) Directing the respondent public official,
by their clients, to the Philippine Mediation Center (PMC) unit scientific team which will "initiate discussions with the
govemment agency, private person or entity to
for purposes of mediation. If not available, the court shall Government of the Philippines to review coral reef
protect, preserve, rehabilitate or restore the
refer the case to the clerk of court or legal researcher for rehabilitation options in Tubbataha, based on assessments
environment;
mediation. by Philippine-based marine scientists." The US team intends
to "help assess damage and remediation options, in
(c) Directing the respondent public official, coordination with the Tubbataha Management Office,
Mediation must be conducted within a non-extendible period
government agency, private person or entity to appropriate Philippine government entities, non-
of thirty (30) days from receipt of notice of referral to
monitor strict compliance with the decision and governmental organizations, and scientific experts from
mediation.
orders of the court; Philippine universities."39

The mediation report must be submitted within ten (10) days


(d) Directing the respondent public official, A rehabilitation or restoration program to be implemented at
from the expiration of the 30-day period.
government agency, or private person or entity to the cost of the violator is also a major relief that may be
make periodic reports on the execution of the final obtained under a judgment rendered in a citizens' suit under
judgment; and SEC. 4. Preliminary conference.-If mediation fails, the court the Rules, viz:
will schedule the continuance of the pre-trial. Before the
scheduled date of continuance, the court may refer the case
(e) Such other reliefs which relate to the right of RULES
to the branch clerk of court for a preliminary conference for
the people to a balanced and healthful ecology or
the following purposes:
to the protection, preservation, rehabilitation or
SECTION 1. Reliefs in a citizen suit.-If warranted, the court
restoration of the environment, except the award
may grant to the plaintiff proper reliefs which shall include
of damages to individual petitioners. (Emphasis (a) To assist the parties in reaching a settlement;
the protection, preservation or rehabilitation of the
supplied.)
environment and the payment of attorney's fees, costs of suit
xxxx and other litigation expenses. It may also require the violator
We agree with respondents (Philippine officials) in asserting to submit a program of rehabilitation or restoration of the
that this petition has become moot in the sense that the environment, the costs of which shall be borne by the
SEC. 5. Pre-trial conference; consent decree.-The judge
salvage operation sought to be enjoined or restrained had violator, or to contribute to a special trust fund for that
shall put the parties and their counsels under oath, and they purpose subject to the control of the court.1âwphi1
already been accomplished when petitioners sought
shall remain under oath in all pre-trial conferences.
recourse from this Court. But insofar as the directives to
Philippine respondents to protect and rehabilitate the coral
In the light of the foregoing, the Court defers to the Executive
reef stn icture and marine habitat adversely affected by the The judge shall exert best efforts to persuade the parties to Branch on the matter of compensation and rehabilitation
grounding incident are concerned, petitioners are entitled to arrive at a settlement of the dispute. The judge may issue a measures through diplomatic channels. Resolution of these
these reliefs notwithstanding the completion of the removal consent decree approving the agreement between the issues impinges on our relations with another State in the
of the USS Guardian from the coral reef. However, we are parties in accordance with law, morals, public order and context of common security interests under the VFA. It is
mindful of the fact that the US and Philippine governments public policy to protect the right of the people to a balanced
settled that "[t]he conduct of the foreign relations of our
both expressed readiness to negotiate and discuss the and healthful ecology. government is committed by the Constitution to the executive
matter of compensation for the damage caused by the USS
and legislative-"the political" --departments of the
Guardian. The US Embassy has also declared it is closely
xxxx government, and the propriety of what may be done in the
coordinating with local scientists and experts in assessing
exercise of this political power is not subject to judicial
the extent of the damage and appropriate methods of
inquiry or decision."40
rehabilitation. SEC. 10. Efforts to settle.- The court shall endeavor to make
the parties to agree to compromise or settle in accordance
with law at any stage of the proceedings before rendition of On the other hand, we cannot grant the additional reliefs
Exploring avenues for settlement of environmental cases is
judgment. (Underscoring supplied.) prayed for in the petition to order a review of the VFA and to
not proscribed by the Rules. As can be gleaned from the
nullify certain immunity provisions thereof.
following provisions, mediation and settlement are available
for the consideration of the parties, and which dispute The Court takes judicial notice of a similar incident in 2009
resolution methods are encouraged by the court, to wit: when a guided-missile cruiser, the USS Port Royal, ran As held in BAYAN (Bagong Alyansang Makabayan) v. Exec.
aground about half a mile off the Honolulu Airport Reef Sec. Zamora,41 the VFA was duly concurred in by the
Runway and remained stuck for four days. After spending Philippine Senate and has been recognized as a treaty by
RULE3
$6.5 million restoring the coral reef, the US government was the United States as attested and certified by the duly
reported to have paid the State of Hawaii $8.5 million in authorized representative of the United States government.
xxxx settlement over coral reef damage caused by the The VF A being a valid and binding agreement, the parties
grounding.38 are required as a matter of international law to abide by its
terms and provisions.42 The present petition under the Rules
is not the proper remedy to assail the constitutionality of its certain Jose Iñigo, an informer of the Intelligence Unit of the obtaining a visa for plaintiff's wife. The defendant told him
provisions. WHEREFORE, the petition for the issuance of military. Jose Iñigo, on the other hand, was met by plaintiff at that he would be leaving the Philippines very soon and
the privilege of the Writ of Kalikasan is hereby DENIED. the office of Atty. Crisanto Saruca, a lawyer for several requested him to come out of the house for a while so that
Iranians whom plaintiff assisted as head of the anti-Khomeini he can introduce him to his cousin waiting in a cab. Without
movement in the Philippines. much ado, and without putting on his shirt as he was only in
No pronouncement as to costs.
his pajama pants, he followed the defendant where he saw a
parked cab opposite the street. To his complete surprise, an
"During his first meeting with the defendant on May 13, 1986,
SO ORDERED. American jumped out of the cab with a drawn high-powered
upon the introduction of Jose Iñigo, the defendant expressed
gun. He was in the company of about 30 to 40 Filipino
his interest in buying caviar. As a matter of fact, he bought
soldiers with 6 Americans, all armed. He was handcuffed
G.R. No. 142396 February 11, 2003 two kilos of caviar from plaintiff and paid P10,000.00 for it.
and after about 20 minutes in the street, he was brought
Selling caviar, aside from that of Persian carpets, pistachio
inside the house by the defendant. He was made to sit down
nuts and other Iranian products was his business after the
KHOSROW MINUCHER, petitioner, while in handcuffs while the defendant was inside his
Khomeini government cut his pension of over $3,000.00 per
vs. bedroom. The defendant came out of the bedroom and out
month. During their introduction in that meeting, the
HON. COURT OF APPEALS and ARTHUR from defendant's attaché case, he took something and
defendant gave the plaintiff his calling card, which showed
SCALZO, respondents. placed it on the table in front of the plaintiff. They also took
that he is working at the US Embassy in the Philippines, as a
plaintiff's wife who was at that time at the boutique near his
special agent of the Drug Enforcement Administration,
house and likewise arrested Torabian, who was playing
DECISION Department of Justice, of the United States, and gave his
chess with him in the bedroom and both were handcuffed
address as US Embassy, Manila. At the back of the card
together. Plaintiff was not told why he was being handcuffed
appears a telephone number in defendant’s own
VITUG, J.: and why the privacy of his house, especially his bedroom
handwriting, the number of which he can also be contacted.
was invaded by defendant. He was not allowed to use the
telephone. In fact, his telephone was unplugged. He asked
Sometime in May 1986, an Information for violation of "It was also during this first meeting that plaintiff expressed for any warrant, but the defendant told him to `shut up.’ He
Section 4 of Republic Act No. 6425, otherwise also known as his desire to obtain a US Visa for his wife and the wife of a was nevertheless told that he would be able to call for his
the "Dangerous Drugs Act of 1972," was filed against countryman named Abbas Torabian. The defendant told him lawyer who can defend him.
petitioner Khosrow Minucher and one Abbas Torabian with that he [could] help plaintiff for a fee of $2,000.00 per visa.
the Regional Trial Court, Branch 151, of Pasig City. The Their conversation, however, was more concentrated on
criminal charge followed a "buy-bust operation" conducted "The plaintiff took note of the fact that when the defendant
politics, carpets and caviar. Thereafter, the defendant
by the Philippine police narcotic agents in the house of invited him to come out to meet his cousin, his safe was
promised to see plaintiff again.
Minucher, an Iranian national, where a quantity of heroin, a opened where he kept the $24,000.00 the defendant paid for
prohibited drug, was said to have been seized. The narcotic the carpets and another $8,000.00 which he also placed in
agents were accompanied by private respondent Arthur "On May 19, 1986, the defendant called the plaintiff and the safe together with a bracelet worth $15,000.00 and a pair
Scalzo who would, in due time, become one of the principal invited the latter for dinner at Mario's Restaurant at Makati. of earrings worth $10,000.00. He also discovered missing
witnesses for the prosecution. On 08 January 1988, He wanted to buy 200 grams of caviar. Plaintiff brought the upon his release his 8 pieces hand-made Persian carpets,
Presiding Judge Eutropio Migrino rendered a decision merchandize but for the reason that the defendant was not valued at $65,000.00, a painting he bought for P30,000.00
acquitting the two accused. yet there, he requested the restaurant people to x x x place together with his TV and betamax sets. He claimed that
the same in the refrigerator. Defendant, however, came and when he was handcuffed, the defendant took his keys from
plaintiff gave him the caviar for which he was paid. Then his wallet. There was, therefore, nothing left in his house.
On 03 August 1988, Minucher filed Civil Case No. 88-45691 their conversation was again focused on politics and
before the Regional Trial Court (RTC), Branch 19, of Manila business.
for damages on account of what he claimed to have been "That his arrest as a heroin trafficker x x x had been well
trumped-up charges of drug trafficking made by Arthur publicized throughout the world, in various newspapers,
Scalzo. The Manila RTC detailed what it had found to be the "On May 26, 1986, defendant visited plaintiff again at the particularly in Australia, America, Central Asia and in the
facts and circumstances surrounding the case. latter's residence for 18 years at Kapitolyo, Pasig. The Philippines. He was identified in the papers as an
defendant wanted to buy a pair of carpets which plaintiff international drug trafficker. x x x
valued at $27,900.00. After some haggling, they agreed at
"The testimony of the plaintiff disclosed that he is an Iranian $24,000.00. For the reason that defendant did not yet have
national. He came to the Philippines to study in the In fact, the arrest of defendant and Torabian was likewise on
the money, they agreed that defendant would come back the
University of the Philippines in 1974. In 1976, under the television, not only in the Philippines, but also in America
next day. The following day, at 1:00 p.m., he came back with
regime of the Shah of Iran, he was appointed Labor Attaché and in Germany. His friends in said places informed him that
his $24,000.00, which he gave to the plaintiff, and the latter,
for the Iranian Embassies in Tokyo, Japan and Manila, they saw him on TV with said news.
in turn, gave him the pair of carpets.1awphi1.nét
Philippines. When the Shah of Iran was deposed by
Ayatollah Khomeini, plaintiff became a refugee of the United "After the arrest made on plaintiff and Torabian, they were
Nations and continued to stay in the Philippines. He headed "At about 3:00 in the afternoon of May 27, 1986, the
brought to Camp Crame handcuffed together, where they
the Iranian National Resistance Movement in the Philippines. defendant came back again to plaintiff's house and directly
were detained for three days without food and water."1
proceeded to the latter's bedroom, where the latter and his
countryman, Abbas Torabian, were playing chess. Plaintiff
"He came to know the defendant on May 13, 1986, when the opened his safe in the bedroom and obtained $2,000.00 During the trial, the law firm of Luna, Sison and Manas, filed
latter was brought to his house and introduced to him by a from it, gave it to the defendant for the latter's fee in a special appearance for Scalzo and moved for extension of
time to file an answer pending a supposed advice from the entitled to diplomatic immunity. He attached to his motion While the trial court gave credence to the claim of Scalzo
United States Department of State and Department of Diplomatic Note No. 414 of the United States Embassy, and the evidence presented by him that he was a diplomatic
Justice on the defenses to be raised. The trial court granted dated 29 May 1990, addressed to the Department of Foreign agent entitled to immunity as such, it ruled that he,
the motion. On 27 October 1988, Scalzo filed another special Affairs of the Philippines and a Certification, dated 11 June nevertheless, should be held accountable for the acts
appearance to quash the summons on the ground that he, 1990, of Vice Consul Donna Woodward, certifying that the complained of committed outside his official duties. On
not being a resident of the Philippines and the action being note is a true and faithful copy of its original. In an order of appeal, the Court of Appeals reversed the decision of the
one in personam, was beyond the processes of the court. 25 June 1990, the trial court denied the motion to dismiss. trial court and sustained the defense of Scalzo that he was
The motion was denied by the court, in its order of 13 sufficiently clothed with diplomatic immunity during his term
December 1988, holding that the filing by Scalzo of a motion of duty and thereby immune from the criminal and civil
On 27 July 1990, Scalzo filed a petition for certiorari with
for extension of time to file an answer to the complaint was a jurisdiction of the "Receiving State" pursuant to the terms of
injunction with this Court, docketed G.R. No. 94257 and
voluntary appearance equivalent to service of summons the Vienna Convention.
entitled "Arthur W. Scalzo, Jr., vs. Hon. Wenceslao Polo, et
which could likewise be construed a waiver of the
al.," asking that the complaint in Civil Case No. 88-45691 be
requirement of formal notice. Scalzo filed a motion for
ordered dismissed. The case was referred to the Court of Hence, this recourse by Minucher. The instant petition for
reconsideration of the court order, contending that a motion
Appeals, there docketed CA-G.R. SP No. 22505, per this review raises a two-fold issue: (1) whether or not the doctrine
for an extension of time to file an answer was not a voluntary
Court’s resolution of 07 August 1990. On 31 October 1990, of conclusiveness of judgment, following the decision
appearance equivalent to service of summons since it did
the Court of Appeals promulgated its decision sustaining the rendered by this Court in G.R. No. 97765, should have
not seek an affirmative relief. Scalzo argued that in cases
diplomatic immunity of Scalzo and ordering the dismissal of precluded the Court of Appeals from resolving the appeal to
involving the United States government, as well as its
the complaint against him. Minucher filed a petition for it in an entirely different manner, and (2) whether or not
agencies and officials, a motion for extension was peculiarly
review with this Court, docketed G.R. No. 97765 and entitled Arthur Scalzo is indeed entitled to diplomatic immunity.
unavoidable due to the need (1) for both the Department of
"Khosrow Minucher vs. the Honorable Court of Appeals, et.
State and the Department of Justice to agree on the
al." (cited in 214 SCRA 242), appealing the judgment of the
defenses to be raised and (2) to refer the case to a The doctrine of conclusiveness of judgment, or its kindred
Court of Appeals. In a decision, dated 24 September 1992,
Philippine lawyer who would be expected to first review the rule of res judicata, would require 1) the finality of the prior
penned by Justice (now Chief Justice) Hilario Davide, Jr.,
case. The court a quo denied the motion for reconsideration judgment, 2) a valid jurisdiction over the subject matter and
this Court reversed the decision of the appellate court and
in its order of 15 October 1989. the parties on the part of the court that renders it, 3) a
remanded the case to the lower court for trial. The remand
judgment on the merits, and 4) an identity of the parties,
was ordered on the theses (a) that the Court of Appeals
subject matter and causes of action.3 Even while one of the
Scalzo filed a petition for review with the Court of Appeals, erred in granting the motion to dismiss of Scalzo for lack of
issues submitted in G.R. No. 97765 - "whether or not public
there docketed CA-G.R. No. 17023, assailing the denial. In a jurisdiction over his person without even considering the
respondent Court of Appeals erred in ruling that private
decision, dated 06 October 1989, the appellate court denied issue of the authenticity of Diplomatic Note No. 414 and (b)
respondent Scalzo is a diplomat immune from civil suit
the petition and affirmed the ruling of the trial court. Scalzo that the complaint contained sufficient allegations to the
conformably with the Vienna Convention on Diplomatic
then elevated the incident in a petition for review on effect that Scalzo committed the imputed acts in his personal
Relations" - is also a pivotal question raised in the instant
certiorari, docketed G.R. No. 91173, to this Court. The capacity and outside the scope of his official duties and,
petition, the ruling in G.R. No. 97765, however, has not
petition, however, was denied for its failure to comply with absent any evidence to the contrary, the issue on Scalzo’s
resolved that point with finality. Indeed, the Court there has
SC Circular No. 1-88; in any event, the Court added, Scalzo diplomatic immunity could not be taken up.
made this observation -
had failed to show that the appellate court was in error in its
questioned judgment.
The Manila RTC thus continued with its hearings on the
"It may be mentioned in this regard that private respondent
case. On 17 November 1995, the trial court reached a
himself, in his Pre-trial Brief filed on 13 June 1990,
Meanwhile, at the court a quo, an order, dated 09 February decision; it adjudged:
unequivocally states that he would present documentary
1990, was issued (a) declaring Scalzo in default for his
evidence consisting of DEA records on his investigation and
failure to file a responsive pleading (answer) and (b) setting
"WHEREFORE, and in view of all the foregoing surveillance of plaintiff and on his position and duties as DEA
the case for the reception of evidence. On 12 March 1990,
considerations, judgment is hereby rendered for the plaintiff, special agent in Manila. Having thus reserved his right to
Scalzo filed a motion to set aside the order of default and to
who successfully established his claim by sufficient present evidence in support of his position, which is the
admit his answer to the complaint. Granting the motion, the
evidence, against the defendant in the manner following: basis for the alleged diplomatic immunity, the barren self-
trial court set the case for pre-trial. In his answer, Scalzo
serving claim in the belated motion to dismiss cannot be
denied the material allegations of the complaint and raised
relied upon for a reasonable, intelligent and fair resolution of
the affirmative defenses (a) of Minucher’s failure to state a "`Adjudging defendant liable to plaintiff in actual and
the issue of diplomatic immunity."4
cause of action in his complaint and (b) that Scalzo had compensatory damages of P520,000.00; moral damages in
acted in the discharge of his official duties as being merely the sum of P10 million; exemplary damages in the sum of
an agent of the Drug Enforcement Administration of the P100,000.00; attorney's fees in the sum of P200,000.00 plus Scalzo contends that the Vienna Convention on Diplomatic
United States Department of Justice. Scalzo interposed a costs. Relations, to which the Philippines is a signatory, grants him
counterclaim of P100,000.00 to answer for attorneys' fees absolute immunity from suit, describing his functions as an
and expenses of litigation. agent of the United States Drugs Enforcement Agency as
`The Clerk of the Regional Trial Court, Manila, is ordered to
"conducting surveillance operations on suspected drug
take note of the lien of the Court on this judgment to answer
dealers in the Philippines believed to be the source of
Then, on 14 June 1990, after almost two years since the for the unpaid docket fees considering that the plaintiff in this
prohibited drugs being shipped to the U.S., (and) having
institution of the civil case, Scalzo filed a motion to dismiss case instituted this action as a pauper litigant.’"2
ascertained the target, (he then) would inform the Philippine
the complaint on the ground that, being a special agent of
the United States Drug Enforcement Administration, he was
narcotic agents (to) make the actual arrest." Scalzo has surveillance and subsequent arrest of Minucher, the or internuncios accredited to the heads of states; and (c)
submitted to the trial court a number of documents - certification of the Drug Enforcement Administration of the charges d' affairs12 accredited to the ministers of foreign
United States Department of Justice that Scalzo was a affairs.13 Comprising the "staff of the (diplomatic) mission"
special agent assigned to the Philippines at all times relevant are the diplomatic staff, the administrative staff and the
1. Exh. '2' - Diplomatic Note No. 414 dated 29 May
to the complaint, and the special power of attorney executed technical and service staff. Only the heads of missions, as
1990;
by him in favor of his previous counsel6 to show (a) that the well as members of the diplomatic staff, excluding the
United States Embassy, affirmed by its Vice Consul, members of the administrative, technical and service staff of
2. Exh. '1' - Certification of Vice Consul Donna K. acknowledged Scalzo to be a member of the diplomatic staff the mission, are accorded diplomatic rank. Even while the
Woodward dated 11 June 1990; of the United States diplomatic mission from his arrival in the Vienna Convention on Diplomatic Relations provides for
Philippines on 14 October 1985 until his departure on 10 immunity to the members of diplomatic missions, it does so,
August 1988, (b) that, on May 1986, with the cooperation of nevertheless, with an understanding that the same be
3. Exh. '5' - Diplomatic Note No. 757 dated 25 the Philippine law enforcement officials and in the exercise of restrictively applied. Only "diplomatic agents," under the
October 1991; his functions as member of the mission, he investigated terms of the Convention, are vested with blanket diplomatic
Minucher for alleged trafficking in a prohibited drug, and (c) immunity from civil and criminal suits. The Convention
4. Exh. '6' - Diplomatic Note No. 791 dated 17 that the Philippine Department of Foreign Affairs itself defines "diplomatic agents" as the heads of missions or
November 1992; and recognized that Scalzo during his tour of duty in the members of the diplomatic staff, thus impliedly withholding
Philippines (14 October 1985 up to 10 August 1988) was the same privileges from all others. It might bear stressing
listed as being an Assistant Attaché of the United States that even consuls, who represent their respective states in
5. Exh. '7' - Diplomatic Note No. 833 dated 21 diplomatic mission and accredited with diplomatic status by concerns of commerce and navigation and perform certain
October 1988. the Government of the Philippines. In his Exhibit 12, Scalzo administrative and notarial duties, such as the issuance of
described the functions of the overseas office of the United passports and visas, authentication of documents, and
6. Exh. '3' - 1st Indorsement of the Hon. Jorge R. States Drugs Enforcement Agency, i.e., (1) to provide administration of oaths, do not ordinarily enjoy the traditional
Coquia, Legal Adviser, Department of Foreign criminal investigative expertise and assistance to foreign law diplomatic immunities and privileges accorded diplomats,
Affairs, dated 27 June 1990 forwarding Embassy enforcement agencies on narcotic and drug control programs mainly for the reason that they are not charged with the duty
Note No. 414 to the Clerk of Court of RTC Manila, upon the request of the host country, 2) to establish and of representing their states in political matters. Indeed, the
Branch 19 (the trial court); maintain liaison with the host country and counterpart foreign main yardstick in ascertaining whether a person is a diplomat
law enforcement officials, and 3) to conduct complex criminal entitled to immunity is the determination of whether or not he
investigations involving international criminal conspiracies performs duties of diplomatic nature.
7. Exh. '4' - Diplomatic Note No. 414, appended to which affect the interests of the United States.
the 1st Indorsement (Exh. '3'); and
Scalzo asserted, particularly in his Exhibits "9" to "13," that
The Vienna Convention on Diplomatic Relations was a he was an Assistant Attaché of the United States diplomatic
8. Exh. '8' - Letter dated 18 November 1992 from codification of centuries-old customary law and, by the time mission and was accredited as such by the Philippine
the Office of the Protocol, Department of Foreign of its ratification on 18 April 1961, its rules of law had long Government. An attaché belongs to a category of officers in
Affairs, through Asst. Sec. Emmanuel Fernandez, become stable. Among the city states of ancient Greece, the diplomatic establishment who may be in charge of its
addressed to the Chief Justice of this Court.5 among the peoples of the Mediterranean before the cultural, press, administrative or financial affairs. There could
establishment of the Roman Empire, and among the states also be a class of attaches belonging to certain ministries or
The documents, according to Scalzo, would show that: (1) of India, the person of the herald in time of war and the departments of the government, other than the foreign
the United States Embassy accordingly advised the person of the diplomatic envoy in time of peace were ministry or department, who are detailed by their respective
Executive Department of the Philippine Government that universally held sacrosanct.7 By the end of the 16th century, ministries or departments with the embassies such as the
Scalzo was a member of the diplomatic staff of the United when the earliest treatises on diplomatic law were published, military, naval, air, commercial, agricultural, labor, science,
States diplomatic mission from his arrival in the Philippines the inviolability of ambassadors was firmly established as a and customs attaches, or the like. Attaches assist a chief of
on 14 October 1985 until his departure on 10 August 1988; rule of customary international law.8Traditionally, the mission in his duties and are administratively under him, but
(2) that the United States Government was firm from the very exercise of diplomatic intercourse among states was their main function is to observe, analyze and interpret
beginning in asserting the diplomatic immunity of Scalzo with undertaken by the head of state himself, as being the trends and developments in their respective fields in the host
respect to the case pursuant to the provisions of the Vienna preeminent embodiment of the state he represented, and the country and submit reports to their own ministries or
Convention on Diplomatic Relations; and (3) that the United foreign secretary, the official usually entrusted with the departments in the home government.14 These officials are
States Embassy repeatedly urged the Department of Foreign external affairs of the state. Where a state would wish to not generally regarded as members of the diplomatic
Affairs to take appropriate action to inform the trial court of have a more prominent diplomatic presence in the receiving mission, nor are they normally designated as having
Scalzo’s diplomatic immunity. The other documentary state, it would then send to the latter a diplomatic mission. diplomatic rank.
exhibits were presented to indicate that: (1) the Philippine Conformably with the Vienna Convention, the functions of
government itself, through its Executive Department, the diplomatic mission involve, by and large, the
In an attempt to prove his diplomatic status, Scalzo
recognizing and respecting the diplomatic status of Scalzo, representation of the interests of the sending state and
presented Diplomatic Notes Nos. 414, 757 and 791, all
formally advised the "Judicial Department" of his diplomatic promoting friendly relations with the receiving state.9
issued post litem motam, respectively, on 29 May 1990, 25
status and his entitlement to all diplomatic privileges and October 1991 and 17 November 1992. The presentation did
immunities under the Vienna Convention; and (2) the The Convention lists the classes of heads of diplomatic nothing much to alleviate the Court's initial reservations in
Department of Foreign Affairs itself authenticated Diplomatic missions to include (a) ambassadors or nuncios accredited G.R. No. 97765, viz:
Note No. 414. Scalzo additionally presented Exhibits "9" to to the heads of state,10 (b) envoys,11 ministers
"13" consisting of his reports of investigation on the
"While the trial court denied the motion to dismiss, the public recognized that, in such matters, the hands of the courts are over one another.22 The implication, in broad terms, is that if
respondent gravely abused its discretion in dismissing Civil virtually tied. Amidst apprehensions of indiscriminate and the judgment against an official would require the state itself
Case No. 88-45691 on the basis of an erroneous assumption incautious grant of immunity, designed to gain exemption to perform an affirmative act to satisfy the award, such as the
that simply because of the diplomatic note, the private from the jurisdiction of courts, it should behoove the appropriation of the amount needed to pay the damages
respondent is clothed with diplomatic immunity, thereby Philippine government, specifically its Department of Foreign decreed against him, the suit must be regarded as being
divesting the trial court of jurisdiction over his person. Affairs, to be most circumspect, that should particularly be no against the state itself, although it has not been formally
less than compelling, in its post litem motam issuances. It impleaded.23
might be recalled that the privilege is not an immunity from
"x x x x x x x x x
the observance of the law of the territorial sovereign or from
In United States of America vs. Guinto,24 involving officers of
ensuing legal liability; it is, rather, an immunity from the
the United States Air Force and special officers of the Air
"And now, to the core issue - the alleged diplomatic immunity exercise of territorial jurisdiction.16 The government of the
Force Office of Special Investigators charged with the duty of
of the private respondent. Setting aside for the moment the United States itself, which Scalzo claims to be acting for, has
preventing the distribution, possession and use of prohibited
issue of authenticity raised by the petitioner and the doubts formulated its standards for recognition of a diplomatic
drugs, this Court has ruled -
that surround such claim, in view of the fact that it took agent. The State Department policy is to only concede
private respondent one (1) year, eight (8) months and diplomatic status to a person who possesses an
seventeen (17) days from the time his counsel filed on 12 acknowledged diplomatic title and "performs duties of "While the doctrine (of state immunity) appears to prohibit
September 1988 a Special Appearance and Motion asking diplomatic nature."17 Supplementary criteria for accreditation only suits against the state without its consent, it is also
for a first extension of time to file the Answer because the are the possession of a valid diplomatic passport or, from applicable to complaints filed against officials of the state for
Departments of State and Justice of the United States of States which do not issue such passports, a diplomatic note acts allegedly performed by them in the discharge of their
America were studying the case for the purpose of formally representing the intention to assign the person to duties. x x x. It cannot for a moment be imagined that they
determining his defenses, before he could secure the diplomatic duties, the holding of a non-immigrant visa, being were acting in their private or unofficial capacity when they
Diplomatic Note from the US Embassy in Manila, and even over twenty-one years of age, and performing diplomatic apprehended and later testified against the complainant. It
granting for the sake of argument that such note is authentic, functions on an essentially full-time basis.18 Diplomatic follows that for discharging their duties as agents of the
the complaint for damages filed by petitioner cannot be missions are requested to provide the most accurate and United States, they cannot be directly impleaded for acts
peremptorily dismissed. descriptive job title to that which currently applies to the imputable to their principal, which has not given its consent
duties performed. The Office of the Protocol would then to be sued. x x x As they have acted on behalf of the
assign each individual to the appropriate functional government, and within the scope of their authority, it is that
"x x x x x x x x x category.19 government, and not the petitioners personally, [who were]
responsible for their acts."25
"There is of course the claim of private respondent that the But while the diplomatic immunity of Scalzo might thus
acts imputed to him were done in his official capacity. remain contentious, it was sufficiently established that, This immunity principle, however, has its limitations. Thus,
Nothing supports this self-serving claim other than the so- indeed, he worked for the United States Drug Enforcement Shauf vs. Court of Appeals26 elaborates:
called Diplomatic Note. x x x. The public respondent then Agency and was tasked to conduct surveillance of suspected
should have sustained the trial court's denial of the motion to
drug activities within the country on the dates pertinent to
dismiss. Verily, it should have been the most proper and this case. If it should be ascertained that Arthur Scalzo was "It is a different matter where the public official is made to
appropriate recourse. It should not have been overwhelmed acting well within his assigned functions when he committed account in his capacity as such for acts contrary to law and
by the self-serving Diplomatic Note whose belated issuance injurious to the rights of the plaintiff. As was clearly set forth
the acts alleged in the complaint, the present controversy
is even suspect and whose authenticity has not yet been could then be resolved under the related doctrine of State by Justice Zaldivar in Director of the Bureau of
proved. The undue haste with which respondent Court Immunity from Suit. Telecommunications, et al., vs. Aligaen, et al. (33 SCRA
yielded to the private respondent's claim is arbitrary." 368): `Inasmuch as the State authorizes only legal acts by its
officers, unauthorized acts of government officials or officers
The precept that a State cannot be sued in the courts of are not acts of the State, and an action against the officials
A significant document would appear to be Exhibit No. 08, a foreign state is a long-standing rule of customary or officers by one whose rights have been invaded or
dated 08 November 1992, issued by the Office of Protocol of
international law then closely identified with the personal violated by such acts, for the protection of his rights, is not a
the Department of Foreign Affairs and signed by Emmanuel immunity of a foreign sovereign from suit20 and, with the suit against the State within the rule of immunity of the State
C. Fernandez, Assistant Secretary, certifying that "the emergence of democratic states, made to attach not just to from suit. In the same tenor, it has been said that an action
records of the Department (would) show that Mr. Arthur W.
the person of the head of state, or his representative, but at law or suit in equity against a State officer or the director
Scalzo, Jr., during his term of office in the Philippines (from also distinctly to the state itself in its sovereign capacity.21 If of a State department on the ground that, while claiming to
14 October 1985 up to 10 August 1988) was listed as an the acts giving rise to a suit are those of a foreign act for the State, he violates or invades the personal and
Assistant Attaché of the United States diplomatic mission
government done by its foreign agent, although not property rights of the plaintiff, under an unconstitutional act
and was, therefore, accredited diplomatic status by the necessarily a diplomatic personage, but acting in his official or under an assumption of authority which he does not have,
Government of the Philippines." No certified true copy of capacity, the complaint could be barred by the immunity of is not a suit against the State within the constitutional
such "records," the supposed bases for the belated
the foreign sovereign from suit without its consent. Suing a provision that the State may not be sued without its consent.
issuance, was presented in evidence. representative of a state is believed to be, in effect, suing the The rationale for this ruling is that the doctrine of state
state itself. The proscription is not accorded for the benefit of immunity cannot be used as an instrument for perpetrating
Concededly, vesting a person with diplomatic immunity is a an individual but for the State, in whose service he is, under an injustice.
prerogative of the executive branch of the government. In the maxim - par in parem, non habet imperium - that all
World Health Organization vs. Aquino,15 the Court has states are sovereign equals and cannot assert jurisdiction
"x x x x x x x x x
"(T)he doctrine of immunity from suit will not apply and may WHEREFORE, on the foregoing premises, the petition is After trial on the merits, the CTA Second Division found that
not be invoked where the public official is being sued in his DENIED. No costs. petitioner indeed paid the total amount of PHP
private and personal capacity as an ordinary citizen. The 67,688,553.51 representing the 15% BPRT on its RBU
cloak of protection afforded the officers and agents of the profits amounting to PHP 451,257,023.29 for 2002 and prior
SO ORDERED.
government is removed the moment they are sued in their taxable years. Records also disclose that for the year 2003,
individual capacity. This situation usually arises where the petitioner remitted to DB Germany the amount of EURO
public official acts without authority or in excess of the G.R. No. 188550 August 19, 2013 5,174,847.38 (or PHP 330,175,961.88 at the exchange rate
powers vested in him. It is a well-settled principle of law that of PHP 63.804:1 EURO), which is net of the 15% BPRT.
a public official may be liable in his personal private capacity
DEUTSCHE BANK AG MANILA BRANCH, PETITIONER,
for whatever damage he may have caused by his act done
vs. However, the claim of petitioner for a refund was denied on
with malice and in bad faith or beyond the scope of his
COMMISSIONER OF INTERNAL the ground that the application for a tax treaty relief was not
authority and jurisdiction."27
REVENUE, RESPONDENT. filed with ITAD prior to the payment by the former of its
BPRT and actual remittance of its branch profits to DB
A foreign agent, operating within a territory, can be cloaked Germany, or prior to its availment of the preferential rate of
with immunity from suit but only as long as it can be DECISION ten percent (10%) under the RP-Germany Tax Treaty
established that he is acting within the directives of the provision. The court a quo held that petitioner violated the
sending state. The consent of the host state is an SERENO, CJ.: fifteen (15) day period mandated under Section III paragraph
indispensable requirement of basic courtesy between the (2) of Revenue Memorandum Order (RMO) No. 1-2000.
two sovereigns. Guinto and Shauf both involve officers and
personnel of the United States, stationed within Philippine This is a Petition for Review1 filed by Deutsche Bank AG
Manila Branch (petitioner) under Rule 45 of the 1997 Rules Further, the CTA Second Division relied on Mirant
territory, under the RP-US Military Bases Agreement. While
of Civil Procedure assailing the Court of Tax Appeals En (Philippines) Operations Corporation (formerly Southern
evidence is wanting to show any similar agreement between
the governments of the Philippines and of the United States Banc (CTA En Banc) Decision2 dated 29 May 2009 and Energy Asia-Pacific Operations [Phils.], Inc.) v.
Resolution3 dated 1 July 2009 in C.T.A. EB No. 456. Commissioner of Internal Revenue9 (Mirant) where the CTA
(for the latter to send its agents and to conduct surveillance
En Banc ruled that before the benefits of the tax treaty may
and related activities of suspected drug dealers in the
be extended to a foreign corporation wishing to avail itself
Philippines), the consent or imprimatur of the Philippine THE FACTS thereof, the latter should first invoke the provisions of the tax
government to the activities of the United States Drug
treaty and prove that they indeed apply to the corporation.
Enforcement Agency, however, can be gleaned from the
facts heretofore elsewhere mentioned. The official In accordance with Section 28(A)(5)4 of the National Internal
exchanges of communication between agencies of the Revenue Code (NIRC) of 1997, petitioner withheld and THE CTA EN BANC RULING10
government of the two countries, certifications from officials remitted to respondent on 21 October 2003 the amount of
of both the Philippine Department of Foreign Affairs and the PHP 67,688,553.51, which represented the fifteen percent
United States Embassy, as well as the participation of (15%) branch profit remittance tax (BPRT) on its regular The CTA En Banc affirmed the CTA Second Division’s
banking unit (RBU) net income remitted to Deutsche Bank Decision dated 29 August 2008 and Resolution dated 14
members of the Philippine Narcotics Command in the "buy-
bust operation" conducted at the residence of Minucher at Germany (DB Germany) for 2002 and prior taxable years.5 January 2009. Citing Mirant, the CTA En Banc held that a
the behest of Scalzo, may be inadequate to support the ruling from the ITAD of the BIR must be secured prior to the
availment of a preferential tax rate under a tax treaty.
"diplomatic status" of the latter but they give enough Believing that it made an overpayment of the BPRT,
indication that the Philippine government has given Applying the principle of stare decisis et non quieta movere,
petitioner filed with the BIR Large Taxpayers Assessment the CTA En Banc took into consideration that this Court had
its imprimatur, if not consent, to the activities within and Investigation Division on 4 October 2005 an denied the Petition in G.R. No. 168531 filed by Mirant for
Philippine territory of agent Scalzo of the United States Drug administrative claim for refund or issuance of its tax credit
Enforcement Agency. The job description of Scalzo has failure to sufficiently show any reversible error in the assailed
certificate in the total amount of PHP 22,562,851.17. On the judgment.11 The CTA En Banc ruled that once a case has
tasked him to conduct surveillance on suspected drug same date, petitioner requested from the International Tax been decided in one way, any other case involving exactly
suppliers and, after having ascertained the target, to inform Affairs Division (ITAD) a confirmation of its entitlement to the
local law enforcers who would then be expected to make the the same point at issue should be decided in the same
preferential tax rate of 10% under the RP-Germany Tax manner.
arrest. In conducting surveillance activities on Minucher, later Treaty.6
acting as the poseur-buyer during the buy-bust operation,
and then becoming a principal witness in the criminal case The court likewise ruled that the 15-day rule for tax treaty
against Minucher, Scalzo hardly can be said to have acted Alleging the inaction of the BIR on its administrative claim, relief application under RMO No. 1-2000 cannot be relaxed
beyond the scope of his official function or duties. petitioner filed a Petition for Review7 with the CTA on 18 for petitioner, unlike in CBK Power Company Limited v.
October 2005. Petitioner reiterated its claim for the refund or Commissioner of Internal Revenue.12 In that case, the rule
issuance of its tax credit certificate for the amount of PHP was relaxed and the claim for refund of excess final
All told, this Court is constrained to rule that respondent 22,562,851.17 representing the alleged excess BPRT paid withholding taxes was partially granted. While it issued a
Arthur Scalzo, an agent of the United States Drug on branch profits remittance to DB Germany.
Enforcement Agency allowed by the Philippine government ruling to CBK Power Company Limited after the payment of
to conduct activities in the country to help contain the withholding taxes, the ITAD did not issue any ruling to
THE CTA SECOND DIVISION RULING8 petitioner even if it filed a request for confirmation on 4
problem on the drug traffic, is entitled to the defense of state
immunity from suit. October 2005 that the remittance of branch profits to DB
Germany is subject to a preferential tax rate of 10% pursuant
to Article 10 of the RP-Germany Tax Treaty.
ISSUE unquestioned authority of the Secretary of Finance to Article VIII speaks of a decision. Indeed, as a rule, this Court
promulgate rules and regulations for the effective lays down doctrines or principles of law which constitute
implementation of the NIRC. Thus, courts cannot ignore binding precedent in a decision duly signed by the members
This Court is now confronted with the issue of whether the
administrative issuances which partakes the nature of a of the Court and certified by the Chief Justice. (Emphasis
failure to strictly comply with RMO No. 1-2000 will deprive
statute and have in their favor a presumption of legality. supplied)
persons or corporations of the benefit of a tax treaty.

The CTA ruled that prior application for a tax treaty relief is Even if we had affirmed the CTA in Mirant, the doctrine laid
THE COURT’S RULING
mandatory, and noncompliance with this prerequisite is fatal down in that Decision cannot bind this Court in cases of a
to the taxpayer’s availment of the preferential tax rate. similar nature. There are differences in parties, taxes,
The Petition is meritorious. taxable periods, and treaties involved; more importantly, the
disposition of that case was made only through a minute
We disagree.
resolution.
Under Section 28(A)(5) of the NIRC, any profit remitted to its
head office shall be subject to a tax of 15% based on the
A minute resolution is not a binding precedent
total profits applied for or earmarked for remittance without Tax Treaty vs. RMO No. 1-2000
any deduction of the tax component. However, petitioner
invokes paragraph 6, Article 10 of the RP-Germany Tax At the outset, this Court’s minute resolution on Mirant is not a
Our Constitution provides for adherence to the general
Treaty, which provides that where a resident of the Federal binding precedent. The Court has clarified this matter in
principles of international law as part of the law of the
Republic of Germany has a branch in the Republic of the Philippine Health Care Providers, Inc. v. Commissioner of
land.15The time-honored international principle of pacta sunt
Philippines, this branch may be subjected to the branch Internal Revenue14 as follows:
servanda demands the performance in good faith of treaty
profits remittance tax withheld at source in accordance with
obligations on the part of the states that enter into the
Philippine law but shall not exceed 10% of the gross amount
It is true that, although contained in a minute resolution, our agreement. Every treaty in force is binding upon the parties,
of the profits remitted by that branch to the head office.
dismissal of the petition was a disposition of the merits of the and obligations under the treaty must be performed by them
case. When we dismissed the petition, we effectively in good faith.16 More importantly, treaties have the force and
By virtue of the RP-Germany Tax Treaty, we are bound to affirmed the CA ruling being questioned. As a result, our effect of law in this jurisdiction.17
extend to a branch in the Philippines, remitting to its head ruling in that case has already become final. When a minute
office in Germany, the benefit of a preferential rate resolution denies or dismisses a petition for failure to comply
Tax treaties are entered into "to reconcile the national fiscal
equivalent to 10% BPRT. with formal and substantive requirements, the challenged
legislations of the contracting parties and, in turn, help the
decision, together with its findings of fact and legal
taxpayer avoid simultaneous taxations in two different
conclusions, are deemed sustained. But what is its effect on
On the other hand, the BIR issued RMO No. 1-2000, which jurisdictions."18 CIR v. S.C. Johnson and Son, Inc. further
other cases?
requires that any availment of the tax treaty relief must be clarifies that "tax conventions are drafted with a view towards
preceded by an application with ITAD at least 15 days before the elimination of international juridical double taxation,
the transaction. The Order was issued to streamline the With respect to the same subject matter and the same which is defined as the imposition of comparable taxes in
processing of the application of tax treaty relief in order to issues concerning the same parties, it constitutes res two or more states on the same taxpayer in respect of the
improve efficiency and service to the taxpayers. Further, it judicata. However, if other parties or another subject matter same subject matter and for identical periods. The apparent
also aims to prevent the consequences of an erroneous (even with the same parties and issues) is involved, the rationale for doing away with double taxation is to encourage
interpretation and/or application of the treaty provisions (i.e., minute resolution is not binding precedent. Thus, in CIR v. the free flow of goods and services and the movement of
filing a claim for a tax refund/credit for the overpayment of Baier-Nickel, the Court noted that a previous case, CIR v. capital, technology and persons between countries,
taxes or for deficiency tax liabilities for underpayment).13 Baier-Nickel involving the same parties and the same issues, conditions deemed vital in creating robust and dynamic
was previously disposed of by the Court thru a minute economies. Foreign investments will only thrive in a fairly
resolution dated February 17, 2003 sustaining the ruling of predictable and reasonable international investment climate
The crux of the controversy lies in the implementation of and the protection against double taxation is crucial in
the CA. Nonetheless, the Court ruled that the previous case
RMO No. 1-2000. creating such a climate."19
"ha(d) no bearing" on the latter case because the two cases
involved different subject matters as they were concerned
Petitioner argues that, considering that it has met all the with the taxable income of different taxable years.
Simply put, tax treaties are entered into to minimize, if not
conditions under Article 10 of the RP-Germany Tax Treaty, eliminate the harshness of international juridical double
the CTA erred in denying its claim solely on the basis of
Besides, there are substantial, not simply formal, distinctions taxation, which is why they are also known as double tax
RMO No. 1-2000. The filing of a tax treaty relief application is treaty or double tax agreements.
between a minute resolution and a decision. The
not a condition precedent to the availment of a preferential
constitutional requirement under the first paragraph of
tax rate. Further, petitioner posits that, contrary to the ruling
Section 14, Article VIII of the Constitution that the facts and
of the CTA, Mirant is not a binding judicial precedent to deny "A state that has contracted valid international obligations is
the law on which the judgment is based must be expressed
a claim for refund solely on the basis of noncompliance with bound to make in its legislations those modifications that
clearly and distinctly applies only to decisions, not to minute
RMO No. 1-2000. may be necessary to ensure the fulfillment of the obligations
resolutions. A minute resolution is signed only by the clerk of
undertaken."20 Thus, laws and issuances must ensure that
court by authority of the justices, unlike a decision. It does
the reliefs granted under tax treaties are accorded to the
Respondent counters that the requirement of prior not require the certification of the Chief Justice. Moreover,
parties entitled thereto. The BIR must not impose additional
application under RMO No. 1-2000 is mandatory in unlike decisions, minute resolutions are not published in the
requirements that would negate the availment of the reliefs
character. RMO No. 1-2000 was issued pursuant to the Philippine Reports. Finally, the proviso of Section 4(3) of
provided for under international agreements. More so, when The underlying principle of prior application with the BIR remitted to Frankfurt Head Office the amount of
the RP-Germany Tax Treaty does not provide for any pre- becomes moot in refund cases, such as the present case, EUR5,174,847.38 (or ₱330,175,961.88 at 63.804
requisite for the availment of the benefits under said where the very basis of the claim is erroneous or there is Peso/Euro) representing its 2002 profits
agreement. excessive payment arising from non-availment of a tax treaty remittance.22
relief at the first instance. In this case, petitioner should not
be faulted for not complying with RMO No. 1-2000 prior to
Likewise, it must be stressed that there is nothing in RMO The amount of PHP 67,688,553.51 paid by petitioner
the transaction. It could not have applied for a tax treaty
No. 1-2000 which would indicate a deprivation of entitlement represented the 15% BPRT on its RBU net income, due for
relief within the period prescribed, or 15 days prior to the
to a tax treaty relief for failure to comply with the 15-day remittance to DB Germany amounting to PHP
payment of its BPRT, precisely because it erroneously paid
period. We recognize the clear intention of the BIR in 451,257,023.29 for 2002 and prior taxable years.23
the BPRT not on the basis of the preferential tax rate under
implementing RMO No. 1-2000, but the CTA’s outright denial
of a tax treaty relief for failure to strictly comply with the
Likewise, both the administrative and the judicial actions
prescribed period is not in harmony with the objectives of the the RP-Germany Tax Treaty, but on the regular rate as
were filed within the two-year prescriptive period pursuant to
contracting state to ensure that the benefits granted under prescribed by the NIRC. Hence, the prior application
Section 229 of the NIRC.24
tax treaties are enjoyed by duly entitled persons or requirement becomes illogical. Therefore, the fact that
corporations. petitioner invoked the provisions of the RP-Germany Tax
Treaty when it requested for a confirmation from the ITAD Clearly, there is no reason to deprive petitioner of the benefit
before filing an administrative claim for a refund should be of a preferential tax rate of 10% BPRT in accordance with
Bearing in mind the rationale of tax treaties, the period of
deemed substantial compliance with RMO No. 1-2000. the RP-Germany Tax Treaty.
application for the availment of tax treaty relief as required by
RMO No. 1-2000 should not operate to divest entitlement to
the relief as it would constitute a violation of the duty Corollary thereto, Section 22921 of the NIRC provides the Petitioner is liable to pay only the amount of PHP
required by good faith in complying with a tax treaty. The taxpayer a remedy for tax recovery when there has been an 45,125,702.34 on its RBU net income amounting to PHP
denial of the availment of tax relief for the failure of a erroneous payment of tax.1âwphi1 The outright denial of 451,257,023.29 for 2002 and prior taxable years, applying
taxpayer to apply within the prescribed period under the petitioner’s claim for a refund, on the sole ground of failure to the 10% BPRT. Thus, it is proper to grant petitioner a refund
administrative issuance would impair the value of the tax apply for a tax treaty relief prior to the payment of the BPRT, ofthe difference between the PHP 67,688,553.51 (15%
treaty. At most, the application for a tax treaty relief from the would defeat the purpose of Section 229. BPRT) and PHP 45,125,702.34 (10% BPRT) or a total of
BIR should merely operate to confirm the entitlement of the PHP 22,562,851.17.
taxpayer to the relief.
Petitioner is entitled to a refund
WHEREFORE, premises considered, the instant Petition is
The obligation to comply with a tax treaty must take GRANTED. Accordingly, the Court of Tax Appeals En Banc
It is significant to emphasize that petitioner applied – though
precedence over the objective of RMO No. 1- Decision dated 29 May 2009 and Resolution dated 1 July
belatedly – for a tax treaty relief, in substantial compliance
2000.1âwphi1 Logically, noncompliance with tax treaties has 2009 are REVERSED and SET ASIDE. A new one is hereby
with RMO No. 1-2000. A ruling by the BIR would have
negative implications on international relations, and unduly entered ordering respondent Commissioner of Internal
confirmed whether petitioner was entitled to the lower rate of
discourages foreign investors. While the consequences Revenue to refund or issue a tax credit certificate in favor of
10% BPRT pursuant to the RP-Germany Tax Treaty.
sought to be prevented by RMO No. 1-2000 involve an petitioner Deutsche Bank AG Manila Branch the amount of
administrative procedure, these may be remedied through TWENTY TWO MILLION FIVE HUNDRED SIXTY TWO
other system management processes, e.g., the imposition of Nevertheless, even without the BIR ruling, the CTA Second THOUSAND EIGHT HUNDRED FIFTY ONE PESOS AND
a fine or penalty. But we cannot totally deprive those who are Division found as follows: SEVENTEEN CENTAVOS (PHP 22,562,851.17), Philippine
entitled to the benefit of a treaty for failure to strictly comply currency, representing the erroneously paid BPRT for 2002
with an administrative issuance requiring prior application for and prior taxable years.
Based on the evidence presented, both documentary and
tax treaty relief.
testimonial, petitioner was able to establish the following
facts: SO ORDERED.
Prior Application vs. Claim for Refund
a. That petitioner is a branch office in the G.R. No. 190582 April 8, 2010
Again, RMO No. 1-2000 was implemented to obviate any Philippines of Deutsche Bank AG, a corporation
erroneous interpretation and/or application of the treaty organized and existing under the laws of the
ANG LADLAD LGBT PARTY represented herein by its
provisions. The objective of the BIR is to forestall Federal Republic of Germany;
Chair, DANTON REMOTO, Petitioner,
assessments against corporations who erroneously availed
themselves of the benefits of the tax treaty but are not legally vs.
b. That on October 21, 2003, it filed its Monthly COMMISSION ON ELECTIONS Respondent.
entitled thereto, as well as to save such investors from the
tedious process of claims for a refund due to an inaccurate Remittance Return of Final Income Taxes
application of the tax treaty provisions. However, as earlier Withheld under BIR Form No. 1601-F and remitted
DECISION
the amount of ₱67,688,553.51 as branch profits
discussed, noncompliance with the 15-day period for prior
application should not operate to automatically divest remittance tax with the BIR; and
entitlement to the tax treaty relief especially in claims for DEL CASTILLO, J.:
refund. c. That on October 29, 2003, the Bangko Sentral
ng Pilipinas having issued a clearance, petitioner
... [F]reedom to differ is not limited to things that do not Ladlad again filed a Petition5 for registration with the indulged in sin and crime!" (7:84) "He said: "O my Lord! Help
matter much. That would be a mere shadow of freedom. The COMELEC. Thou me against people who do mischief" (29:30).
test of its substance is the right to differ as to things that
touch the heart of the existing order.
Before the COMELEC, petitioner argued that the LGBT As correctly pointed out by the Law Department in its
community is a marginalized and under-represented sector Comment dated October 2, 2008:
Justice Robert A. Jackson that is particularly disadvantaged because of their sexual
orientation and gender identity; that LGBTs are victims of
The ANG LADLAD apparently advocates sexual immorality
exclusion, discrimination, and violence; that because of
West Virginia State Board of Education v. Barnette1 as indicated in the Petition’s par. 6F: ‘Consensual
negative societal attitudes, LGBTs are constrained to hide
partnerships or relationships by gays and lesbians who are
their sexual orientation; and that Ang Ladlad complied with
already of age’. It is further indicated in par. 24 of the Petition
One unavoidable consequence of everyone having the the 8-point guidelines enunciated by this Court in Ang
which waves for the record: ‘In 2007, Men Having Sex with
freedom to choose is that others may make different choices Bagong Bayani-OFW Labor Party v. Commission on
Men or MSMs in the Philippines were estimated as 670,000
– choices we would not make for ourselves, choices we may Elections.6 Ang Ladlad laid out its national membership base
(Genesis 19 is the history of Sodom and Gomorrah).
disapprove of, even choices that may shock or offend or consisting of individual members and organizational
anger us. However, choices are not to be legally prohibited supporters, and outlined its platform of governance.7
merely because they are different, and the right to disagree Laws are deemed incorporated in every contract, permit,
and debate about important questions of public policy is a license, relationship, or accreditation. Hence, pertinent
On November 11, 2009, after admitting the petitioner’s
core value protected by our Bill of Rights. Indeed, our provisions of the Civil Code and the Revised Penal Code are
evidence, the COMELEC (Second Division) dismissed the
democracy is built on genuine recognition of, and respect for, deemed part of the requirement to be complied with for
Petition on moral grounds, stating that:
diversity and difference in opinion. accreditation.

x x x This Petition is dismissible on moral grounds. Petitioner


Since ancient times, society has grappled with deep ANG LADLAD collides with Article 695 of the Civil Code
defines the Filipino Lesbian, Gay, Bisexual and Transgender
disagreements about the definitions and demands of which defines nuisance as ‘Any act, omission, establishment,
(LGBT) Community, thus:
morality. In many cases, where moral convictions are business, condition of property, or anything else which x x x
concerned, harmony among those theoretically opposed is (3) shocks, defies; or disregards decency or morality x x x
an insurmountable goal. Yet herein lies the paradox – x x x a marginalized and under-represented sector that is
philosophical justifications about what is moral are particularly disadvantaged because of their sexual
It also collides with Article 1306 of the Civil Code: ‘The
indispensable and yet at the same time powerless to create orientation and gender identity.
contracting parties may establish such stipulations, clauses,
agreement. This Court recognizes, however, that practical
terms and conditions as they may deem convenient,
solutions are preferable to ideological stalemates;
and proceeded to define sexual orientation as that which: provided they are not contrary to law, morals, good customs,
accommodation is better than intransigence; reason more
public order or public policy. Art 1409 of the Civil Code
worthy than rhetoric. This will allow persons of diverse
provides that ‘Contracts whose cause, object or purpose is
viewpoints to live together, if not harmoniously, then, at least, x x x refers to a person’s capacity for profound emotional,
contrary to law, morals, good customs, public order or public
civilly. affectional and sexual attraction to, and intimate and sexual
policy’ are inexistent and void from the beginning.
relations with, individuals of a different gender, of the same
gender, or more than one gender."
Factual Background
Finally to safeguard the morality of the Filipino community,
the Revised Penal Code, as amended, penalizes ‘Immoral
This definition of the LGBT sector makes it crystal clear that
This is a Petition for Certiorari under Rule 65 of the Rules of doctrines, obscene publications and exhibitions and indecent
petitioner tolerates immorality which offends religious beliefs.
Court, with an application for a writ of preliminary mandatory shows’ as follows:
In Romans 1:26, 27, Paul wrote:
injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad)
against the Resolutions of the Commission on Elections
Art. 201. Immoral doctrines, obscene publications and
(COMELEC) dated November 11, 20092 (the First Assailed For this cause God gave them up into vile affections, for
exhibitions, and indecent shows. — The penalty of prision
Resolution) and December 16, 20093 (the Second Assailed even their women did change the natural use into that which
mayor or a fine ranging from six thousand to twelve
Resolution) in SPP No. 09-228 (PL) (collectively, the is against nature: And likewise also the men, leaving the
thousand pesos, or both such imprisonment and fine, shall
Assailed Resolutions). The case has its roots in the natural use of the woman, burned in their lust one toward
be imposed upon:
COMELEC’s refusal to accredit Ang Ladlad as a party-list another; men with men working that which is unseemly, and
organization under Republic Act (RA) No. 7941, otherwise receiving in themselves that recompense of their error which
known as the Party-List System Act.4 was meet. 1. Those who shall publicly expound or proclaim
doctrines openly contrary to public morals;
Ang Ladlad is an organization composed of men and women In the Koran, the hereunder verses are pertinent:
who identify themselves as lesbians, gays, bisexuals, or 2. (a) The authors of obscene literature, published
trans-gendered individuals (LGBTs). Incorporated in with their knowledge in any form; the editors
For ye practice your lusts on men in preference to women
2003, Ang Ladlad first applied for registration with the publishing such literature; and the
COMELEC in 2006. The application for accreditation was "ye are indeed a people transgressing beyond bounds."
owners/operators of the establishment selling the
denied on the ground that the organization had no (7.81) "And we rained down on them a shower (of
same;
brimstone): Then see what was the end of those who
substantial membership base. On August 17, 2009, Ang
(b) Those who, in theaters, fairs, said that Ladlad’s expressed sexual orientations per se x x x There is no question about not imposing on Ladlad
cinematographs or any other place, would benefit the nation as a whole. Christian or Muslim religious practices. Neither is there any
exhibit indecent or immoral plays, attempt to any particular religious group’s moral rules on
scenes, acts or shows, it being Ladlad. Rather, what are being adopted as moral parameters
Section 2 of the party-list law unequivocally states that the
understood that the obscene literature or and precepts are generally accepted public morals. They are
purpose of the party-list system of electing congressional
indecent or immoral plays, scenes, acts possibly religious-based, but as a society, the Philippines
representatives is to enable Filipino citizens belonging to
or shows, whether live or in film, which cannot ignore its more than 500 years of Muslim and
marginalized and under-represented sectors, organizations
are prescribed by virtue hereof, shall Christian upbringing, such that some moral precepts
and parties, and who lack well-defined political
include those which: (1) glorify criminals espoused by said religions have sipped [sic] into society and
constituencies but who could contribute to the formulation
or condone crimes; (2) serve no other these are not publicly accepted moral norms.
and enactment of appropriate legislation that will benefit the
purpose but to satisfy the market for
nation as a whole, to become members of the House of
violence, lust or pornography; (3) offend
Representatives. V. Legal Provisions
any race or religion; (4) tend to abet
traffic in and use of prohibited drugs;
and (5) are contrary to law, public If entry into the party-list system would depend only on the But above morality and social norms, they have become part
order, morals, good ability of an organization to represent its constituencies, then of the law of the land. Article 201 of the Revised Penal Code
customs, established policies, lawful all representative organizations would have found imposes the penalty of prision mayor upon "Those who shall
orders, decrees and edicts. themselves into the party-list race. But that is not the publicly expound or proclaim doctrines openly contrary to
intention of the framers of the law. The party-list system is public morals." It penalizes "immoral doctrines, obscene
not a tool to advocate tolerance and acceptance of publications and exhibition and indecent shows." "Ang
3. Those who shall sell, give away or exhibit films,
misunderstood persons or groups of persons. Rather, the Ladlad" apparently falls under these legal provisions. This is
prints, engravings, sculpture or literature which are
party-list system is a tool for the realization of aspirations of clear from its Petition’s paragraph 6F: "Consensual
offensive to morals.
marginalized individuals whose interests are also the partnerships or relationships by gays and lesbians who are
nation’s – only that their interests have not been brought to already of age’ It is further indicated in par. 24 of the Petition
Petitioner should likewise be denied accreditation not only the attention of the nation because of their under which waves for the record: ‘In 2007, Men Having Sex with
for advocating immoral doctrines but likewise for not being representation. Until the time comes when Ladlad is able to Men or MSMs in the Philippines were estimated as 670,000.
truthful when it said that it "or any of its nominees/party-list justify that having mixed sexual orientations and transgender Moreoever, Article 694 of the Civil Code defines "nuisance"
representatives have not violated or failed to comply with identities is beneficial to the nation, its application for as any act, omission x x x or anything else x x x which
laws, rules, or regulations relating to the elections." accreditation under the party-list system will remain just that. shocks, defies or disregards decency or morality x x x."
These are all unlawful.10
Furthermore, should this Commission grant the petition, we II. No substantial differentiation
will be exposing our youth to an environment that does not On January 4, 2010, Ang Ladlad filed this Petition, praying
conform to the teachings of our faith. Lehman Strauss, a that the Court annul the Assailed Resolutions and direct the
In the United States, whose equal protection doctrine
famous bible teacher and writer in the U.S.A. said in one COMELEC to grant Ang Ladlad’s application for
pervades Philippine jurisprudence, courts do not recognize
article that "older practicing homosexuals are a threat to the accreditation. Ang Ladlad also sought the issuance ex parte
lesbians, gays, homosexuals, and bisexuals (LGBT) as a
youth." As an agency of the government, ours too is the of a preliminary mandatory injunction against the COMELEC,
"special class" of individuals. x x x Significantly, it has also
State’s avowed duty under Section 13, Article II of the which had previously announced that it would begin printing
been held that homosexuality is not a constitutionally
Constitution to protect our youth from moral and spiritual the final ballots for the May 2010 elections by January 25,
protected fundamental right, and that "nothing in the U.S.
degradation.8 2010.
Constitution discloses a comparable intent to protect or
promote the social or legal equality of homosexual relations,"
When Ang Ladlad sought reconsideration,9 three as in the case of race or religion or belief. On January 6, 2010, we ordered the Office of the Solicitor
commissioners voted to overturn the First Assailed General (OSG) to file its Comment on behalf of COMELEC
Resolution (Commissioners Gregorio Y. Larrazabal, Rene V. not later than 12:00 noon of January 11, 2010.11 Instead of
xxxx
Sarmiento, and Armando Velasco), while three filing a Comment, however, the OSG filed a Motion for
commissioners voted to deny Ang Ladlad’s Motion for Extension, requesting that it be given until January 16, 2010
Reconsideration (Commissioners Nicodemo T. Ferrer, Thus, even if society’s understanding, tolerance, and to Comment.12 Somewhat surprisingly, the OSG later filed a
Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC acceptance of LGBT’s is elevated, there can be no denying Comment in support of petitioner’s application.13 Thus, in
Chairman, breaking the tie and speaking for the majority in that Ladlad constituencies are still males and females, order to give COMELEC the opportunity to fully ventilate its
his Separate Opinion, upheld the First Assailed Resolution, and they will remain either male or female protected by the position, we required it to file its own comment. 14 The
stating that: same Bill of Rights that applies to all citizens alike. COMELEC, through its Law Department, filed its Comment
on February 2, 2010.15
I. The Spirit of Republic Act No. 7941 xxxx
In the meantime, due to the urgency of the petition, we
issued a temporary restraining order on January 12, 2010,
Ladlad is applying for accreditation as a sectoral party in the IV. Public Morals effective immediately and continuing until further orders from
party-list system. Even assuming that it has properly proven
this Court, directing the COMELEC to cease and desist from
its under-representation and marginalization, it cannot be
implementing the Assailed Resolutions.16
Also, on January 13, 2010, the Commission on Human The COMELEC denied Ang Ladlad’s application for § Abra Gay Association
Rights (CHR) filed a Motion to Intervene or to Appear as registration on the ground that the LGBT sector is neither
Amicus Curiae, attaching thereto its Comment-in- enumerated in the Constitution and RA 7941, nor is it
§ Aklan Butterfly Brigade (ABB) – Aklan
Intervention.17 The CHR opined that the denial of Ang associated with or related to any of the sectors in the
Ladlad’spetition on moral grounds violated the standards and enumeration.
principles of the Constitution, the Universal Declaration of § Albay Gay Association
Human Rights (UDHR), and the International Covenant on
Respondent mistakenly opines that our ruling in Ang Bagong
Civil and Political Rights (ICCPR). On January 19, 2010, we
granted the CHR’s motion to intervene.
Bayani stands for the proposition that only those sectors § Arts Center of Cabanatuan City – Nueva Ecija
specifically enumerated in the law or related to said sectors
(labor, peasant, fisherfolk, urban poor, indigenous cultural
§ Boys Legion – Metro Manila
On January 26, 2010, Epifanio D. Salonga, Jr. filed his communities, elderly, handicapped, women, youth, veterans,
Motion to Intervene18 which motion was granted on February overseas workers, and professionals) may be registered
2, 2010.19 under the party-list system. As we explicitly ruled in Ang § Cagayan de Oro People Like Us (CDO PLUS)
Bagong Bayani-OFW Labor Party v. Commission on
Elections,20 "the enumeration of marginalized and under-
The Parties’ Arguments § Can’t Live in the Closet, Inc. (CLIC) – Metro
represented sectors is not exclusive". The crucial element is
not whether a sector is specifically enumerated, but whether Manila
Ang Ladlad argued that the denial of accreditation, insofar as a particular organization complies with the requirements of
it justified the exclusion by using religious dogma, violated the Constitution and RA 7941. § Cebu Pride – Cebu City
the constitutional guarantees against the establishment of
religion. Petitioner also claimed that the Assailed Resolutions
Respondent also argues that Ang Ladlad made untruthful § Circle of Friends
contravened its constitutional rights to privacy, freedom of
statements in its petition when it alleged that it had
speech and assembly, and equal protection of laws, as well
nationwide existence through its members and affiliate
as constituted violations of the Philippines’ international § Dipolog Gay Association – Zamboanga del Norte
organizations. The COMELEC claims that upon verification
obligations against discrimination based on sexual
by its field personnel, it was shown that "save for a few
orientation.
isolated places in the country, petitioner does not exist in § Gay, Bisexual, & Transgender Youth Association
almost all provinces in the country."21 (GABAY)
The OSG concurred with Ang Ladlad’s petition and argued
that the COMELEC erred in denying petitioner’s application
This argument that "petitioner made untruthful statements in § Gay and Lesbian Activists Network for Gender
for registration since there was no basis for COMELEC’s
its petition when it alleged its national existence" is a new Equality (GALANG) – Metro Manila
allegations of immorality. It also opined that LGBTs have
one; previously, the COMELEC claimed that petitioner was
their own special interests and concerns which should have
"not being truthful when it said that it or any of its
been recognized by the COMELEC as a separate § Gay Men’s Support Group (GMSG) – Metro
nominees/party-list representatives have not violated or
classification. However, insofar as the purported violations of Manila
failed to comply with laws, rules, or regulations relating to the
petitioner’s freedom of speech, expression, and assembly
elections." Nowhere was this ground for denial of petitioner’s
were concerned, the OSG maintained that there had been
accreditation mentioned or even alluded to in the Assailed § Gay United for Peace and Solidarity (GUPS) –
no restrictions on these rights.
Resolutions. This, in itself, is quite curious, considering that Lanao del Norte
the reports of petitioner’s alleged non-existence were already
In its Comment, the COMELEC reiterated that petitioner available to the COMELEC prior to the issuance of the First
does not have a concrete and genuine national political Assailed Resolution. At best, this is irregular procedure; at § Iloilo City Gay Association – Iloilo City
agenda to benefit the nation and that the petition was validly worst, a belated afterthought, a change in respondent’s
dismissed on moral grounds. It also argued for the first time theory, and a serious violation of petitioner’s right to § Kabulig Writer’s Group – Camarines Sur
that the LGBT sector is not among the sectors enumerated procedural due process.
by the Constitution and RA 7941, and that petitioner made
untruthful statements in its petition when it alleged its § Lesbian Advocates Philippines, Inc. (LEAP)
Nonetheless, we find that there has been no
national existence contrary to actual verification reports by
misrepresentation. A cursory perusal of Ang Ladlad’s initial
COMELEC’s field personnel. § LUMINA – Baguio City
petition shows that it never claimed to exist in each province
of the Philippines. Rather, petitioner alleged that the LGBT
Our Ruling community in the Philippines was estimated to constitute at § Marikina Gay Association – Metro Manila
least 670,000 persons; that it had 16,100 affiliates and
members around the country, and 4,044 members in its
We grant the petition. § Metropolitan Community Church (MCC) – Metro
electronic discussion group.22 Ang Ladlad also represented
itself to be "a national LGBT umbrella organization with Manila
Compliance with the Requirements of the Constitution and affiliates around the Philippines composed of the following
Republic Act No. 7941 LGBT networks:" § Naga City Gay Association – Naga City
§ ONE BACARDI Our Constitution provides in Article III, Section 5 that "[n]o of the religion clauses. x x x Recognizing the religious nature
law shall be made respecting an establishment of religion, or of the Filipinos and the elevating influence of religion in
prohibiting the free exercise thereof." At bottom, what our society, however, the Philippine constitution's religion
§ Order of St. Aelred (OSAe) – Metro Manila
non-establishment clause calls for is "government neutrality clauses prescribe not a strict but a benevolent neutrality.
in religious matters."24 Clearly, "governmental reliance on Benevolent neutrality recognizes that government must
§ PUP LAKAN religious justification is inconsistent with this policy of pursue its secular goals and interests but at the same time
neutrality."25 We thus find that it was grave violation of the strive to uphold religious liberty to the greatest extent
non-establishment clause for the COMELEC to utilize the possible within flexible constitutional limits. Thus, although
§ RADAR PRIDEWEAR Bible and the Koran to justify the exclusion of Ang Ladlad. the morality contemplated by laws is secular, benevolent
neutrality could allow for accommodation of morality based
§ Rainbow Rights Project (R-Rights), Inc. – Metro on religion, provided it does not offend compelling state
Rather than relying on religious belief, the legitimacy of the
Manila interests.27
Assailed Resolutions should depend, instead, on whether
the COMELEC is able to advance some justification for its
§ San Jose del Monte Gay Association – Bulacan rulings beyond mere conformity to religious doctrine. Public Morals as a Ground to Deny Ang Ladlad’s Petition for
Otherwise stated, government must act for secular purposes Registration
and in ways that have primarily secular effects. As we held in
§ Sining Kayumanggi Royal Family – Rizal Estrada v. Escritor:26
Respondent suggests that although the moral condemnation
of homosexuality and homosexual conduct may be religion-
§ Society of Transexual Women of the Philippines x x x The morality referred to in the law is public and based, it has long been transplanted into generally accepted
(STRAP) – Metro Manila necessarily secular, not religious as the dissent of Mr. public morals. The COMELEC argues:
Justice Carpio holds. "Religious teachings as expressed in
§ Soul Jive – Antipolo, Rizal public debate may influence the civil public order but public
Petitioner’s accreditation was denied not necessarily
moral disputes may be resolved only on grounds articulable
because their group consists of LGBTs but because of the
in secular terms." Otherwise, if government relies upon
§ The Link – Davao City religious beliefs in formulating public policies and morals, the
danger it poses to the people especially the youth. Once it is
recognized by the government, a sector which believes that
resulting policies and morals would require conformity to
there is nothing wrong in having sexual relations with
§ Tayabas Gay Association – Quezon what some might regard as religious programs or agenda.
individuals of the same gender is a bad example. It will bring
The non-believers would therefore be compelled to conform
down the standard of morals we cherish in our civilized
to a standard of conduct buttressed by a religious belief, i.e.,
§ Women’s Bisexual Network – Metro Manila society. Any society without a set of moral precepts is in
to a "compelled religion," anathema to religious freedom.
danger of losing its own existence.28
Likewise, if government based its actions upon religious
§ Zamboanga Gay Association – Zamboanga beliefs, it would tacitly approve or endorse that belief and
City23 thereby also tacitly disapprove contrary religious or non- We are not blind to the fact that, through the years,
religious views that would not support the policy. As a result, homosexual conduct, and perhaps homosexuals
government will not provide full religious freedom for all its themselves, have borne the brunt of societal disapproval. It
Since the COMELEC only searched for the names ANG citizens, or even make it appear that those whose beliefs are is not difficult to imagine the reasons behind this censure –
LADLAD LGBT or LADLAD LGBT, it is no surprise that they disapproved are second-class citizens.1avvphi1 religious beliefs, convictions about the preservation of
found that petitioner had no presence in any of these marriage, family, and procreation, even dislike or distrust of
regions. In fact, if COMELEC’s findings are to be believed, homosexuals themselves and their perceived lifestyle.
petitioner does not even exist in Quezon City, which is In other words, government action, including its proscription
Nonetheless, we recall that the Philippines has not seen fit to
registered as Ang Ladlad’s principal place of business. of immorality as expressed in criminal law like concubinage,
criminalize homosexual conduct. Evidently, therefore, these
must have a secular purpose. That is, the government
"generally accepted public morals" have not been
proscribes this conduct because it is "detrimental (or
Against this backdrop, we find that Ang Ladlad has convincingly transplanted into the realm of law.29
dangerous) to those conditions upon which depend the
sufficiently demonstrated its compliance with the legal existence and progress of human society" and not because
requirements for accreditation. Indeed, aside from the conduct is proscribed by the beliefs of one religion or the The Assailed Resolutions have not identified any specific
COMELEC’s moral objection and the belated allegation of other. Although admittedly, moral judgments based on overt immoral act performed by Ang Ladlad. Even the OSG
non-existence, nowhere in the records has the respondent religion might have a compelling influence on those engaged agrees that "there should have been a finding by the
ever found/ruled that Ang Ladlad is not qualified to register in public deliberations over what actions would be COMELEC that the group’s members have committed or are
as a party-list organization under any of the requisites under considered a moral disapprobation punishable by law. After committing immoral acts."30 The OSG argues:
RA 7941 or the guidelines in Ang Bagong Bayani. The all, they might also be adherents of a religion and thus have
difference, COMELEC claims, lies in Ang Ladlad’s morality, religious opinions and moral codes with a compelling
or lack thereof. x x x A person may be sexually attracted to a person of the
influence on them; the human mind endeavors to regulate
the temporal and spiritual institutions of society in a uniform same gender, of a different gender, or more than one
manner, harmonizing earth with heaven. Succinctly put, a gender, but mere attraction does not translate to immoral
Religion as the Basis for Refusal to Accept Ang Ladlad’s acts. There is a great divide between thought and action.
Petition for Registration law could be religious or Kantian or Aquinian or utilitarian in
its deepest roots, but it must have an articulable and Reduction ad absurdum. If immoral thoughts could be
discernible secular purpose and justification to pass scrutiny penalized, COMELEC would have its hands full of
disqualification cases against both the "straights" and the similar persons."33 The equal protection clause guarantees and that the COMELEC made "an unwarranted and
gays." Certainly this is not the intendment of the law.31 that no person or class of persons shall be deprived of the impermissible classification not justified by the
same protection of laws which is enjoyed by other persons or circumstances of the case."
other classes in the same place and in like circumstances.34
Respondent has failed to explain what societal ills are sought
to be prevented, or why special protection is required for the Freedom of Expression and Association
youth. Neither has the COMELEC condescended to justify its Recent jurisprudence has affirmed that if a law neither
position that petitioner’s admission into the party-list system burdens a fundamental right nor targets a suspect class, we
Under our system of laws, every group has the right to
would be so harmful as to irreparably damage the moral will uphold the classification as long as it bears a rational
promote its agenda and attempt to persuade society of the
fabric of society. We, of course, do not suggest that the state relationship to some legitimate government end.35 In Central
validity of its position through normal democratic means. 39 It
is wholly without authority to regulate matters concerning Bank Employees Association, Inc. v. Banko Sentral ng
is in the public square that deeply held convictions and
morality, sexuality, and sexual relations, and we recognize Pilipinas,36 we declared that "[i]n our jurisdiction, the
differing opinions should be distilled and deliberated upon.
that the government will and should continue to restrict standard of analysis of equal protection challenges x x x
As we held in Estrada v. Escritor:40
behavior considered detrimental to society. Nonetheless, we have followed the ‘rational basis’ test, coupled with a
cannot countenance advocates who, undoubtedly with the deferential attitude to legislative classifications and a
loftiest of intentions, situate morality on one end of an reluctance to invalidate a law unless there is a showing of a In a democracy, this common agreement on political and
argument or another, without bothering to go through the clear and unequivocal breach of the Constitution."37 moral ideas is distilled in the public square. Where citizens
rigors of legal reasoning and explanation. In this, the notion are free, every opinion, every prejudice, every aspiration,
of morality is robbed of all value. Clearly then, the bare and every moral discernment has access to the public
The COMELEC posits that the majority of the Philippine
invocation of morality will not remove an issue from our square where people deliberate the order of their life
population considers homosexual conduct as immoral and
scrutiny. together. Citizens are the bearers of opinion, including
unacceptable, and this constitutes sufficient reason to
opinion shaped by, or espousing religious belief, and these
disqualify the petitioner. Unfortunately for the respondent,
citizens have equal access to the public square. In this
We also find the COMELEC’s reference to purported the Philippine electorate has expressed no such belief. No
representative democracy, the state is prohibited from
violations of our penal and civil laws flimsy, at best; law exists to criminalize homosexual behavior or expressions
determining which convictions and moral judgments may be
disingenuous, at worst. Article 694 of the Civil Code defines or parties about homosexual behavior. Indeed, even if we
proposed for public deliberation. Through a constitutionally
a nuisance as "any act, omission, establishment, condition of were to assume that public opinion is as the COMELEC
designed process, the people deliberate and decide. Majority
property, or anything else which shocks, defies, or describes it, the asserted state interest here – that is, moral
rule is a necessary principle in this democratic governance.
disregards decency or morality," the remedies for which are disapproval of an unpopular minority – is not a legitimate
Thus, when public deliberation on moral judgments is finally
a prosecution under the Revised Penal Code or any local state interest that is sufficient to satisfy rational basis review
crystallized into law, the laws will largely reflect the beliefs
ordinance, a civil action, or abatement without judicial under the equal protection clause. The COMELEC’s
and preferences of the majority, i.e., the mainstream or
proceedings.32 A violation of Article 201 of the Revised Penal differentiation, and its unsubstantiated claim that Ang
median groups. Nevertheless, in the very act of adopting and
Code, on the other hand, requires proof beyond reasonable Ladlad cannot contribute to the formulation of legislation that
accepting a constitution and the limits it specifies – including
doubt to support a criminal conviction. It hardly needs to be would benefit the nation, furthers no legitimate state interest
protection of religious freedom "not only for a minority,
emphasized that mere allegation of violation of laws is not other than disapproval of or dislike for a disfavored group.
however small – not only for a majority, however large – but
proof, and a mere blanket invocation of public morals cannot
for each of us" – the majority imposes upon itself a self-
replace the institution of civil or criminal proceedings and a
From the standpoint of the political process, the lesbian, gay, denying ordinance. It promises not to do what it otherwise
judicial determination of liability or culpability.
bisexual, and transgender have the same interest in could do: to ride roughshod over the dissenting minorities.
participating in the party-list system on the same basis as
As such, we hold that moral disapproval, without more, is not other political parties similarly situated. State intrusion in this
Freedom of expression constitutes one of the essential
a sufficient governmental interest to justify exclusion of case is equally burdensome. Hence, laws of general
foundations of a democratic society, and this freedom
homosexuals from participation in the party-list system. The application should apply with equal force to LGBTs, and they
applies not only to those that are favorably received but also
denial of Ang Ladlad’s registration on purely moral grounds deserve to participate in the party-list system on the same
to those that offend, shock, or disturb. Any restriction
amounts more to a statement of dislike and disapproval of basis as other marginalized and under-represented sectors.
imposed in this sphere must be proportionate to the
homosexuals, rather than a tool to further any substantial
legitimate aim pursued. Absent any compelling state interest,
public interest. Respondent’s blanket justifications give rise
It bears stressing that our finding that COMELEC’s act of it is not for the COMELEC or this Court to impose its views
to the inevitable conclusion that the COMELEC targets
differentiating LGBTs from heterosexuals insofar as the on the populace. Otherwise stated, the COMELEC is
homosexuals themselves as a class, not because of any
party-list system is concerned does not imply that any other certainly not free to interfere with speech for no better reason
particular morally reprehensible act. It is this selective
law distinguishing between heterosexuals and homosexuals than promoting an approved message or discouraging a
targeting that implicates our equal protection clause.
under different circumstances would similarly fail. We disfavored one.
disagree with the OSG’s position that homosexuals are a
Equal Protection class in themselves for the purposes of the equal protection
This position gains even more force if one considers that
clause.38 We are not prepared to single out homosexuals as
homosexual conduct is not illegal in this country. It follows
a separate class meriting special or differentiated treatment.
Despite the absolutism of Article III, Section 1 of our that both expressions concerning one’s homosexuality and
We have not received sufficient evidence to this effect, and it
Constitution, which provides "nor shall any person be denied the activity of forming a political association that supports
is simply unnecessary to make such a ruling today.
equal protection of the laws," courts have never interpreted LGBT individuals are protected as well.
Petitioner itself has merely demanded that it be recognized
the provision as an absolute prohibition on classification.
under the same basis as all other groups similarly situated,
"Equality," said Aristotle, "consists in the same treatment of
Other jurisdictions have gone so far as to categorically rule Of course, none of this suggests the impending arrival of a Non-Discrimination and International Law
that even overwhelming public perception that homosexual golden age for gay rights litigants. It well may be that this
conduct violates public morality does not justify criminalizing Decision will only serve to highlight the discrepancy between
In an age that has seen international law evolve
same-sex conduct.41 European and United Nations judicial the rigid constitutional analysis of this Court and the more
geometrically in scope and promise, international human
decisions have ruled in favor of gay rights claimants on both complex moral sentiments of Filipinos. We do not suggest
rights law, in particular, has grown dynamically in its attempt
privacy and equality grounds, citing general privacy and that public opinion, even at its most liberal, reflect a clear-cut
to bring about a more just and humane world order. For
equal protection provisions in foreign and international strong consensus favorable to gay rights claims and we
individuals and groups struggling with inadequate structural
texts.42 To the extent that there is much to learn from other neither attempt nor expect to affect individual perceptions of
and governmental support, international human rights norms
jurisdictions that have reflected on the issues we face here, homosexuality through this Decision.
are particularly significant, and should be effectively enforced
such jurisprudence is certainly illuminating. These foreign
in domestic legal systems so that such norms may become
authorities, while not formally binding on Philippine courts,
The OSG argues that since there has been neither prior actual, rather than ideal, standards of conduct.
may nevertheless have persuasive influence on the Court’s
restraint nor subsequent punishment imposed on Ang
analysis.
Ladlad, and its members have not been deprived of their
Our Decision today is fully in accord with our international
right to voluntarily associate, then there has been no
obligations to protect and promote human rights. In
In the area of freedom of expression, for instance, United restriction on their freedom of expression or association. The
particular, we explicitly recognize the principle of non-
States courts have ruled that existing free speech doctrines OSG argues that:
discrimination as it relates to the right to electoral
protect gay and lesbian rights to expressive conduct. In order
participation, enunciated in the UDHR and the ICCPR.
to justify the prohibition of a particular expression of opinion,
There was no utterance restricted, no publication censored,
public institutions must show that their actions were caused
or any assembly denied. [COMELEC] simply exercised its
by "something more than a mere desire to avoid the The principle of non-discrimination is laid out in Article 26 of
authority to review and verify the qualifications of petitioner
discomfort and unpleasantness that always accompany an the ICCPR, as follows:
as a sectoral party applying to participate in the party-list
unpopular viewpoint."43
system. This lawful exercise of duty cannot be said to be a
transgression of Section 4, Article III of the Constitution. Article 26
With respect to freedom of association for the advancement
of ideas and beliefs, in Europe, with its vibrant human rights
xxxx All persons are equal before the law and are entitled without
tradition, the European Court of Human Rights (ECHR) has
repeatedly stated that a political party may campaign for a any discrimination to the equal protection of the law. In this
change in the law or the constitutional structures of a state if respect, the law shall prohibit any discrimination and
A denial of the petition for registration x x x does not deprive
it uses legal and democratic means and the changes it guarantee to all persons equal and effective protection
the members of the petitioner to freely take part in the
proposes are consistent with democratic principles. The against discrimination on any ground such as race, colour,
conduct of elections. Their right to vote will not be hampered
ECHR has emphasized that political ideas that challenge the sex, language, religion, political or other opinion, national or
by said denial. In fact, the right to vote is a constitutionally-
existing order and whose realization is advocated by social origin, property, birth or other status.
guaranteed right which cannot be limited.
peaceful means must be afforded a proper opportunity of
expression through the exercise of the right of association, In this context, the principle of non-discrimination requires
even if such ideas may seem shocking or unacceptable to As to its right to be elected in a genuine periodic election,
that laws of general application relating to elections be
the authorities or the majority of the population.44 A political petitioner contends that the denial of Ang Ladlad’s petition
applied equally to all persons, regardless of sexual
has the clear and immediate effect of limiting, if not outrightly
group should not be hindered solely because it seeks to orientation. Although sexual orientation is not specifically
publicly debate controversial political issues in order to find nullifying the capacity of its members to fully and equally
enumerated as a status or ratio for discrimination in Article
solutions capable of satisfying everyone concerned.45 Only if participate in public life through engagement in the party list
26 of the ICCPR, the ICCPR Human Rights Committee has
elections.
a political party incites violence or puts forward policies that opined that the reference to "sex" in Article 26 should be
are incompatible with democracy does it fall outside the construed to include "sexual orientation."48Additionally, a
protection of the freedom of association guarantee.46 This argument is puerile. The holding of a public office is not variety of United Nations bodies have declared
a right but a privilege subject to limitations imposed by law. x discrimination on the basis of sexual orientation to be
We do not doubt that a number of our citizens may believe x x47 prohibited under various international agreements.49
that homosexual conduct is distasteful, offensive, or even
defiant. They are entitled to hold and express that view. On The OSG fails to recall that petitioner has, in fact, The UDHR provides:
the other hand, LGBTs and their supporters, in all likelihood, established its qualifications to participate in the party-list
believe with equal fervor that relationships between system, and – as advanced by the OSG itself – the moral
individuals of the same sex are morally equivalent to Article 21.
objection offered by the COMELEC was not a limitation
heterosexual relationships. They, too, are entitled to hold imposed by law. To the extent, therefore, that the petitioner
and express that view. However, as far as this Court is has been precluded, because of COMELEC’s action, from (1) Everyone has the right to take part in the government of
concerned, our democracy precludes using the religious or publicly expressing its views as a political party and his country, directly or through freely chosen representatives.
moral views of one part of the community to exclude from participating on an equal basis in the political process with
consideration the values of other members of the other equally-qualified party-list candidates, we find that
community. there has, indeed, been a transgression of petitioner’s Likewise, the ICCPR states:
fundamental rights.
Article 25 international law is not the panacea for all social ills. We Elections is directed to GRANT petitioner’s application for
refer now to the petitioner’s invocation of the Yogyakarta party-list accreditation.
Principles (the Application of International Human Rights
Every citizen shall have the right and the opportunity, without
Law In Relation to Sexual Orientation and Gender
any of the distinctions mentioned in article 2 and without SO ORDERED.
Identity),51 which petitioner declares to reflect binding
unreasonable restrictions:
principles of international law.
G.R. No. 179267 June 25, 2013
(a) To take part in the conduct of public affairs,
At this time, we are not prepared to declare that
directly or through freely chosen representatives;
these Yogyakarta Principles contain norms that are JESUS C. GARCIA, Petitioner,
obligatory on the Philippines. There are declarations and vs.
(b) To vote and to be elected at genuine periodic obligations outlined in said Principles which are not reflective THE HONORABLE RAY ALAN T. DRILON, Presiding
elections which shall be by universal and equal of the current state of international law, and do not find basis Judge, Regional Trial Court-Branch 41, Bacolod City,
suffrage and shall be held by secret ballot, in any of the sources of international law enumerated under and ROSALIE JAYPE-GARCIA, for herself and in behalf
guaranteeing the free expression of the will of the Article 38(1) of the Statute of the International Court of of minor children, namely: JO-ANN, JOSEPH EDUARD,
electors; Justice.52 Petitioner has not undertaken any objective and JESSE ANTHONE, all surnamed GARCIA, Respondents.
rigorous analysis of these alleged principles of international
law to ascertain their true status.
(c) To have access, on general terms of equality, DECISION
to public service in his country.
We also hasten to add that not everything that society – or a
PERLAS-BERNABE, J.:
certain segment of society – wants or demands is
As stated by the CHR in its Comment-in-Intervention, the automatically a human right. This is not an arbitrary human
scope of the right to electoral participation is elaborated by intervention that may be added to or subtracted from at will. Hailed as the bastion of Christianity in Asia, the Philippines
the Human Rights Committee in its General Comment No.
It is unfortunate that much of what passes for human rights boasts of 86.8 million Filipinos- or 93 percent of a total
25 (Participation in Public Affairs and the Right to Vote) as today is a much broader context of needs that identifies population of 93.3 million – adhering to the teachings of
follows: many social desires as rights in order to further claims that Jesus Christ.1 Yet, the admonition for husbands to love their
international law obliges states to sanction these wives as their own bodies just as Christ loved the church and
1. Article 25 of the Covenant recognizes and protects the innovations. This has the effect of diluting real human rights, gave himself up for her2 failed to prevent, or even to curb,
right of every citizen to take part in the conduct of public and is a result of the notion that if "wants" are couched in the pervasiveness of violence against Filipino women. The
affairs, the right to vote and to be elected and the right to "rights" language, then they are no longer National Commission on the Role of Filipino Women
have access to public service. Whatever form of constitution controversial.1avvphi1 (NCRFW) reported that, for the years 2000-2003, "female
or government is in force, the Covenant requires States to violence comprised more than 90o/o of all forms of abuse
adopt such legislative and other measures as may be Using even the most liberal of lenses, these Yogyakarta and violence and more than 90% of these reported cases
necessary to ensure that citizens have an effective Principles, consisting of a declaration formulated by various were committed by the women's intimate partners such as
opportunity to enjoy the rights it protects. Article 25 lies at the international law professors, are – at best – de lege ferenda their husbands and live-in partners."3
core of democratic government based on the consent of the – and do not constitute binding obligations on the
people and in conformity with the principles of the Covenant. Philippines. Indeed, so much of contemporary international Thus, on March 8, 2004, after nine (9) years of spirited
law is characterized by the "soft law" nomenclature, i.e., advocacy by women's groups, Congress enacted Republic
xxxx international law is full of principles that promote international Act (R.A.) No. 9262, entitled "An Act Defining Violence
cooperation, harmony, and respect for human rights, most of Against Women and Their Children, Providing for Protective
which amount to no more than well-meaning desires, without Measures for Victims, Prescribing Penalties Therefor, and for
15. The effective implementation of the right and the the support of either State practice or opinio juris.53 Other Purposes." It took effect on March 27, 2004.4
opportunity to stand for elective office ensures that persons
entitled to vote have a free choice of candidates. Any
restrictions on the right to stand for election, such as As a final note, we cannot help but observe that the social R.A. 9262 is a landmark legislation that defines and
minimum age, must be justifiable on objective and issues presented by this case are emotionally charged, criminalizes acts of violence against women and their
reasonable criteria. Persons who are otherwise eligible to societal attitudes are in flux, even the psychiatric and children (VAWC) perpetrated by women's intimate partners,
stand for election should not be excluded by unreasonable or religious communities are divided in opinion. This Court’s i.e, husband; former husband; or any person who has or had
discriminatory requirements such as education, residence or role is not to impose its own view of acceptable behavior. a sexual or dating relationship, or with whom the woman has
descent, or by reason of political affiliation. No person should Rather, it is to apply the Constitution and laws as best as it a common child.5 The law provides for protection orders from
suffer discrimination or disadvantage of any kind because of can, uninfluenced by public opinion, and confident in the the barangay and the courts to prevent the commission of
that person's candidacy. States parties should indicate and knowledge that our democracy is resilient enough to further acts of VAWC; and outlines the duties and
explain the legislative provisions which exclude any group or withstand vigorous debate. responsibilities of barangay officials, law enforcers,
category of persons from elective office.50 prosecutors and court personnel, social workers, health care
WHEREFORE, the Petition is hereby GRANTED. The providers, and other local government officials in responding
Resolutions of the Commission on Elections dated to complaints of VAWC or requests for assistance.
We stress, however, that although this Court stands willing to
assume the responsibility of giving effect to the Philippines’ November 11, 2009 and December 16, 2009 in SPP No. 09-
international law obligations, the blanket invocation of 228 (PL) are hereby SET ASIDE. The Commission on
A husband is now before the Court assailing the respondent forcefully on the lips that caused some bleeding. respondent confronted him about the affair, petitioner
constitutionality of R.A. 9262 as being violative of the equal Petitioner sometimes turned his ire on their daughter, Jo- forbade her to hold office at JBTC Building, Mandalagan,
protection and due process clauses, and an undue Ann, who had seen the text messages he sent to his where all the businesses of the corporations are conducted,
delegation of judicial power to barangay officials. paramour and whom he blamed for squealing on him. He thereby depriving her of access to full information about said
beat Jo-Ann on the chest and slapped her many times. businesses. Until the filing of the petition a quo, petitioner
When private respondent decided to leave petitioner, Jo-Ann has not given private respondent an accounting of the
The Factual Antecedents
begged her mother to stay for fear that if the latter leaves, businesses the value of which she had helped raise to
petitioner would beat her up. Even the small boys are aware millions of pesos.17
On March 23, 2006, Rosalie Jaype-Garcia (private of private respondent's sufferings. Their 6-year-old son said
respondent) filed, for herself and in behalf of her minor that when he grows up, he would beat up his father because
Action of the RTC of Bacolod City
children, a verified petition6 (Civil Case No. 06-797) before of his cruelty to private respondent.11
the Regional Trial Court (RTC) of Bacolod City for the
issuance of a Temporary Protection Order (TPO) against her Finding reasonable ground to believe that an imminent
All the emotional and psychological turmoil drove private
husband, Jesus C. Garcia (petitioner), pursuant to R.A. danger of violence against the private respondent and her
respondent to the brink of despair. On December 17, 2005,
9262. She claimed to be a victim of physical abuse; children exists or is about to recur, the RTC issued a
while at home, she attempted suicide by cutting her wrist.
emotional, psychological, and economic violence as a result TPO18 on March 24, 2006 effective for thirty (30) days, which
She was found by her son bleeding on the floor. Petitioner
of marital infidelity on the part of petitioner, with threats of is quoted hereunder:
simply fled the house instead of taking her to the hospital.
deprivation of custody of her children and of financial
Private respondent was hospitalized for about seven (7)
support.7
days in which time petitioner never bothered to visit, nor Respondent (petitioner herein), Jesus Chua Garcia, is
apologized or showed pity on her. Since then, private hereby:
Private respondent's claims respondent has been undergoing therapy almost every week
and is taking anti-depressant medications.12
a) Ordered to remove all his personal belongings
Private respondent married petitioner in 2002 when she was from the conjugal dwelling or family home within
34 years old and the former was eleven years her senior. When private respondent informed the management of 24 hours from receipt of the Temporary
They have three (3) children, namely: Jo-Ann J. Garcia, 17 Robinson's Bank that she intends to file charges against the Restraining Order and if he refuses, ordering that
years old, who is the natural child of petitioner but whom bank manager, petitioner got angry with her for jeopardizing he be removed by police officers from the conjugal
private respondent adopted; Jessie Anthone J. Garcia, 6 the manager's job. He then packed his things and told dwelling; this order is enforceable notwithstanding
years old; and Joseph Eduard J. Garcia, 3 years old.8 private respondent that he was leaving her for good. He that the house is under the name of 236 Realty
even told private respondent's mother, who lives with them in Holdings Inc. (Republic Act No. 9262 states
the family home, that private respondent should just accept "regardless of ownership"), this is to allow the
Private respondent described herself as a dutiful and faithful his extramarital affair since he is not cohabiting with his Petitioner (private respondent herein) to enter the
wife, whose life revolved around her husband. On the other paramour and has not sired a child with her.13 conjugal dwelling without any danger from the
hand, petitioner, who is of Filipino-Chinese descent, is
Respondent.
dominant, controlling, and demands absolute obedience
from his wife and children. He forbade private respondent to Private respondent is determined to separate from petitioner
pray, and deliberately isolated her from her friends. When but she is afraid that he would take her children from her and After the Respondent leaves or is removed from
she took up law, and even when she was already working deprive her of financial support. Petitioner had previously the conjugal dwelling, or anytime the Petitioner
part time at a law office, petitioner trivialized her ambitions warned her that if she goes on a legal battle with him, she decides to return to the conjugal dwelling to
and prevailed upon her to just stay at home. He was often would not get a single centavo.14 remove things, the Petitioner shall be assisted by
jealous of the fact that his attractive wife still catches the eye police officers when re-entering the family home.
of some men, at one point threatening that he would have
Petitioner controls the family businesses involving mostly the
any man eyeing her killed.9
construction of deep wells. He is the President of three The Chief of Police shall also give the Petitioner
corporations – 326 Realty Holdings, Inc., Negros Rotadrill police assistance on Sunday, 26 March 2006
Things turned for the worse when petitioner took up an affair Corporation, and J-Bros Trading Corporation – of which he because of the danger that the Respondent will
with a bank manager of Robinson's Bank, Bacolod City, who and private respondent are both stockholders. In contrast to attempt to take her children from her when he
is the godmother of one of their sons. Petitioner admitted to the absolute control of petitioner over said corporations, arrives from Manila and finds out about this suit.
the affair when private respondent confronted him about it in private respondent merely draws a monthly salary of
2004. He even boasted to the household help about his ₱20,000.00 from one corporation only, the Negros Rotadrill
Corporation. Household expenses amounting to not less b) To stay away from the petitioner and her
sexual relations with said bank manager. Petitioner told
children, mother and all her household help and
private respondent, though, that he was just using the than ₱200,000.00 a month are paid for by private respondent
driver from a distance of 1,000 meters, and shall
woman because of their accounts with the bank.10 through the use of credit cards, which, in turn, are paid by
the same corporation together with the bills for utilities.15 not enter the gate of the subdivision where the
Petitioner may be temporarily residing.
Petitioner's infidelity spawned a series of fights that left
private respondent physically and emotionally wounded. In On the other hand, petitioner receives a monthly salary of
₱60,000.00 from Negros Rotadrill Corporation, and enjoys c) Not to harass, annoy, telephone, contact or
one of their quarrels, petitioner grabbed private respondent
otherwise communicate with the Petitioner, directly
on both arms and shook her with such force that caused unlimited cash advances and other benefits in hundreds of
thousands of pesos from the corporations.16 After private or indirectly, or through other persons, or contact
bruises and hematoma. At another time, petitioner hit private
directly or indirectly her children, mother and k) Respondent is ordered to immediately post a d) Deliver full financial support of Php200,000.00
household help, nor send gifts, cards, flowers, bond to keep the peace, in two sufficient sureties. and Php50,000.00 for rental and Php25,000.00 for
letters and the like. Visitation rights to the children clothes of the three petitioners (sic) children within
may be subject of a modified TPO in the future. 24 hours from receipt of the Temporary Protection
l) To give monthly support to the petitioner
Order by his counsel, otherwise be declared in
provisionally fixed in the sum of One Hundred Fifty
indirect contempt of Court;
d) To surrender all his firearms including a .9MM Thousand Pesos (Php 150,000.00) per month plus
caliber firearm and a Walther PPK and ordering rental expenses of Fifty Thousand Pesos (Php
the Philippine National Police Firearms and 50,000.00) per month until the matter of support e) That respondent surrender his two firearms and
Explosives Unit and the Provincial Director of the could be finally resolved. all unlicensed firearms to the Clerk of Court within
PNP to cancel all the Respondent's firearm 24 hours from receipt of the Temporary Protection
licenses. He should also be ordered to surrender Order by his counsel;
Two days later, or on April 26, 2006, petitioner filed an
any unlicensed firearms in his possession or
Opposition to the Urgent Ex-Parte Motion for Renewal of the
control.
TPO21 seeking the denial of the renewal of the TPO on the f) That respondent shall pay petitioner educational
grounds that it did not (1) comply with the three-day notice expenses of the children upon presentation of
e) To pay full financial support for the Petitioner rule, and (2) contain a notice of hearing. He further asked proof of payment of such expenses.23
and the children, including rental of a house for that the TPO be modified by (1) removing one vehicle used
them, and educational and medical expenses. by private respondent and returning the same to its rightful
Claiming that petitioner continued to deprive them of
owner, the J-Bros Trading Corporation, and (2) cancelling or
financial support; failed to faithfully comply with the TPO; and
reducing the amount of the bond from ₱5,000,000.00 to a
f) Not to dissipate the conjugal business. committed new acts of harassment against her and their
more manageable level at ₱100,000.00.
children, private respondent filed another application24 for the
issuance of a TPO ex parte. She alleged inter
g) To render an accounting of all advances,
Subsequently, on May 23, 2006, petitioner moved22 for the
benefits, bonuses and other cash he received from
modification of the TPO to allow him visitation rights to his
all the corporations from 1 January 2006 up to 31 alia that petitioner contrived a replevin suit against himself by
children.
March 2006, which himself and as President of the J-Bros Trading, Inc., of which the latter was purportedly no
corporations and his Comptroller, must submit to longer president, with the end in view of recovering the
the Court not later than 2 April 2006. Thereafter, On May 24, 2006, the TPO was renewed and extended yet Nissan Patrol and Starex Van used by private respondent
an accounting of all these funds shall be reported again, but subject only to the following modifications prayed and the children. A writ of replevin was served upon private
to the court by the Comptroller, copy furnished to for by private respondent: respondent by a group of six or seven policemen with long
the Petitioner, every 15 days of the month, under firearms that scared the two small boys, Jessie Anthone and
pain of Indirect Contempt of Court. Joseph Eduard.25
a) That respondent (petitioner herein) return the
clothes and other personal belongings of Rosalie
h) To ensure compliance especially with the order and her children to Judge Jesus Ramos, co- While Joseph Eduard, then three years old, was driven to
granting support pendente lite, and considering the counsel for Petitioner, within 24 hours from receipt school, two men allegedly attempted to kidnap him, which
financial resources of the Respondent and his of the Temporary Protection Order by his counsel, incident traumatized the boy resulting in his refusal to go
threat that if the Petitioner sues she will not get a otherwise be declared in Indirect Contempt of back to school. On another occasion, petitioner allegedly
single centavo, the Respondent is ordered to put Court; grabbed their daughter, Jo-Ann, by the arm and threatened
up a BOND TO KEEP THE PEACE in the amount her.26 The incident was reported to the police, and Jo-Ann
of FIVE MILLION PESOS, in two sufficient subsequently filed a criminal complaint against her father for
b) Respondent shall make an accounting or list of
sureties. violation of R.A. 7610, also known as the "Special Protection
furniture and equipment in the conjugal house in
of Children Against Child Abuse, Exploitation and
Pitimini St., Capitolville Subdivision, Bacolod City
Discrimination Act."
On April 24, 2006, upon motion19 of private within 24 hours from receipt of the Temporary
respondent, the trial court issued an amended Protection Order by his counsel;
TPO,20 effective for thirty (30) days, which included Aside from the replevin suit, petitioner's lawyers initiated the
the following additional provisions: filing by the housemaids working at the conjugal home of a
c) Ordering the Chief of the Women's Desk of the
complaint for kidnapping and illegal detention against private
Bacolod City Police Headquarters to remove
respondent. This came about after private respondent,
i) The petitioners (private respondents herein) are Respondent from the conjugal dwelling within eight
armed with a TPO, went to said home to get her and her
given the continued use of the Nissan Patrol and (8) hours from receipt of the Temporary Protection
children's belongings. Finding some of her things inside a
the Starex Van which they are using in Negros Order by his counsel, and that he cannot return
housemaid's (Sheryl Jamola) bag in the maids' room, private
Occidental. until 48 hours after the petitioners have left, so that
respondent filed a case for qualified theft against Jamola.27
the petitioner Rosalie and her representatives can
remove things from the conjugal home and make
j) The petitioners are given the continued use and
an inventory of the household furniture, equipment On August 23, 2006, the RTC issued a TPO,28 effective for
occupation of the house in Parañaque, the
and other things in the conjugal home, which shall thirty (30) days, which reads as follows:
continued use of the Starex van in Metro Manila,
be submitted to the Court.
whenever they go to Manila.
Respondent (petitioner herein), Jesus Chua Garcia, is 8) Ordered not to dissipate, encumber, alienate, Proceedings before the CA
hereby: sell, lease or otherwise dispose of the conjugal
assets, or those real properties in the name of
During the pendency of Civil Case No. 06-797, petitioner
Jesus Chua Garcia only and those in which the
1) Prohibited from threatening to commit or filed before the Court of Appeals (CA) a petition34 for
conjugal partnership of gains of the Petitioner
committing, personally or through another, acts of prohibition (CA-G.R. CEB-SP. No. 01698), with prayer for
Rosalie J. Garcia and respondent have an interest
violence against the offended party; injunction and temporary restraining order, challenging (1)
in, especially the conjugal home located in No. 14,
the constitutionality of R.A. 9262 for being violative of the
Pitimini St., Capitolville Subdivision, Bacolod City,
due process and the equal protection clauses, and (2) the
2) Prohibited from harassing, annoying, and other properties which are conjugal assets or
validity of the modified TPO issued in the civil case for being
telephoning, contacting or otherwise those in which the conjugal partnership of gains of
"an unwanted product of an invalid law."
communicating in any form with the offended Petitioner Rosalie J. Garcia and the respondent
party, either directly or indirectly; have an interest in and listed in Annexes "I," "I-1,"
and "I-2," including properties covered by TCT On May 26, 2006, the appellate court issued a 60-day
Nos. T-186325 and T-168814; Temporary Restraining Order36 (TRO) against the
3) Required to stay away, personally or through
enforcement of the TPO, the amended TPOs and other
his friends, relatives, employees or agents, from all
orders pursuant thereto.
the Petitioners Rosalie J. Garcia and her children, 9) Ordered that the Register of Deeds of Bacolod
Rosalie J. Garcia's three brothers, her mother City and E.B. Magalona shall be served a copy of
Primitiva Jaype, cook Novelita Caranzo, driver this TEMPORARY PROTECTION ORDER and Subsequently, however, on January 24, 2007, the appellate
Romeo Hontiveros, laundrywoman Mercedita are ordered not to allow the transfer, sale, court dismissed36 the petition for failure of petitioner to raise
Bornales, security guard Darwin Gayona and the encumbrance or disposition of these above-cited the constitutional issue in his pleadings before the trial court
petitioner's other household helpers from a properties to any person, entity or corporation in the civil case, which is clothed with jurisdiction to resolve
distance of 1,000 meters, and shall not enter the without the personal presence of petitioner Rosalie the same. Secondly, the challenge to the validity
gate of the subdivision where the Petitioners are J. Garcia, who shall affix her signature in the
temporarily residing, as well as from the schools of presence of the Register of Deeds, due to the fear
of petitioner Rosalie that her signature will be of R.A. 9262 through a petition for prohibition seeking to
the three children; Furthermore, that respondent
annul the protection orders issued by the trial court
shall not contact the schools of the children forged in order to effect the encumbrance or sale
of these properties to defraud her or the conjugal constituted a collateral attack on said law.
directly or indirectly in any manner including,
ostensibly to pay for their tuition or other fees partnership of gains.
directly, otherwise he will have access to the His motion for reconsideration of the foregoing Decision
children through the schools and the TPO will be
In its Order29 dated September 26, 2006, the trial court having been denied in the Resolution37 dated August 14,
rendered nugatory;
extended the aforequoted TPO for another ten (10) days, 2007, petitioner is now before us alleging that –
and gave petitioner a period of five (5) days within which to
4) Directed to surrender all his firearms including show cause why the TPO should not be renewed, extended, The Issues
.9MM caliber firearm and a Walther PPK to the or modified. Upon petitioner's manifestation,30 however, that
Court; he has not received a copy of private respondent's motion to
modify/renew the TPO, the trial court directed in its I.
Order31 dated October 6, 2006 that petitioner be furnished a
5) Directed to deliver in full financial support of copy of said motion. Nonetheless, an Order32 dated a day THE COURT OF APPEALS ERRED IN DISMISSING THE
Php200,000.00 a month and Php50,000.00 for earlier, October 5, had already been issued renewing the
rental for the period from August 6 to September PETITION ON THE THEORY THAT THE ISSUE OF
TPO dated August 23, 2006. The pertinent portion is quoted CONSTITUTIONALITY WAS NOT RAISED AT THE
6, 2006; and support in arrears from March 2006 hereunder: EARLIEST OPPORTUNITY AND THAT, THE PETITION
to August 2006 the total amount of
Php1,312,000.00; CONSTITUTES A COLLATERAL ATTACK ON THE
xxxx VALIDITY OF THE LAW.

6) Directed to deliver educational expenses for


2006-2007 the amount of Php75,000.00 and x x x it appearing further that the hearing could not yet be II.
Php25,000.00; finally terminated, the Temporary Protection Order issued on
August 23, 2006 is hereby renewed and extended for thirty THE COURT OF APPEALS COMMITTED SERIOUS
(30) days and continuously extended and renewed for thirty ERROR IN FAILING TO CONCLUDE THAT R.A. 9262 IS
7) Directed to allow the continued use of a Nissan
(30) days, after each expiration, until further orders, and DISCRIMINATORY, UNJUST, AND VIOLATIVE OF THE
Patrol with Plate No. FEW 508 and a Starex van subject to such modifications as may be ordered by the EQUAL PROTECTION CLAUSE.
with Plate No. FFD 991 and should the respondent court.
fail to deliver said vehicles, respondent is ordered
to provide the petitioner another vehicle which is III.
the one taken by J Bros Tading; 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 THE COURT OF APPEALS COMMITTED GRAVE
that it would only be an "exercise in futility."33 MISTAKE IN NOT FINDING THAT R.A. 9262 RUNS
COUNTER TO THE DUE PROCESS CLAUSE OF THE cities identified.43 To achieve harmony with the first earliest opportunity in his Opposition to the petition for
CONSTITUTION. mentioned law, Section 7 of R.A. 9262 now provides that protection order before the RTC of Bacolod City, which had
Regional Trial Courts designated as Family Courts shall jurisdiction to determine the same, subject to the review of
have original and exclusive jurisdiction over cases of VAWC this Court.
IV.
defined under the latter law, viz:
Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence
THE COURT OF APPEALS ERRED IN NOT FINDING
SEC. 7. Venue. – The Regional Trial Court designated as a Against Women and Their Children, lays down a new kind of
THAT THE LAW DOES VIOLENCE TO THE POLICY OF
Family Court shall have original and exclusive jurisdiction procedure requiring the respondent to file an opposition to
THE STATE TO PROTECT THE FAMILY AS A BASIC
over cases of violence against women and their children the petition and not an answer.49 Thus:
SOCIAL INSTITUTION.
under this law. In the absence of such court in the place
where the offense was committed, the case shall be filed in
SEC. 20. Opposition to petition. – (a) The respondent may
V. the Regional Trial Court where the crime or any of its
file an opposition to the petition which he himself shall verify.
elements was committed at the option of the complainant.
It must be accompanied by the affidavits of witnesses and
(Emphasis supplied)
THE COURT OF APPEALS SERIOUSLY ERRED IN NOT shall show cause why a temporary or permanent protection
DECLARING R.A. No. 9262 AS INVALID AND order should not be issued.
UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE Inspite of its designation as a family court, the RTC of
DELEGATION OF JUDICIAL POWER TO THE BARANGAY Bacolod City remains possessed of authority as a court of
(b) Respondent shall not include in the opposition any
OFFICIALS.38 general original jurisdiction to pass upon all kinds of cases
counterclaim, cross-claim or third-party complaint, but any
whether civil, criminal, special proceedings, land registration,
cause of action which could be the subject thereof may be
guardianship, naturalization, admiralty or insolvency.44 It is
The Ruling of the Court litigated in a separate civil action. (Emphasis supplied)
settled that RTCs have jurisdiction to resolve the
constitutionality of a statute,45 "this authority being embraced
Before delving into the arguments propounded by petitioner in the general definition of the judicial power to determine We cannot subscribe to the theory espoused by petitioner
against the constitutionality of R.A. 9262, we shall first tackle what are the valid and binding laws by the criterion of their that, since a counterclaim, cross-claim and third-party
the propriety of the dismissal by the appellate court of the conformity to the fundamental law."46The Constitution vests complaint are to be excluded from the opposition, the issue
petition for prohibition (CA-G.R. CEB-SP. No. 01698) filed by the power of judicial review or the power to declare the of constitutionality cannot likewise be raised therein. A
petitioner. constitutionality or validity of a law, treaty, international or counterclaim is defined as any claim for money or other relief
executive agreement, presidential decree, order, instruction, which a defending party may have against an opposing
ordinance, or regulation not only in this Court, but in all party.50 A cross-claim, on the other hand, is any claim by one
As a general rule, the question of constitutionality must be RTCs.47 We said in J.M. Tuason and Co., Inc. v. CA48 that, party against a co-party arising out of the transaction or
raised at the earliest opportunity so that if not raised in the "plainly the Constitution contemplates that the inferior courts occurrence that is the subject matter either of the original
pleadings, ordinarily it may not be raised in the trial, and if should have jurisdiction in cases involving constitutionality of action or of a counterclaim therein.51Finally, a third-party
not raised in the trial court, it will not be considered on any treaty or law, for it speaks of appellate review of final complaint is a claim that a defending party may, with leave of
appeal.39 Courts will not anticipate a question of judgments of inferior courts in cases where such court, file against a person not a party to the action for
constitutional law in advance of the necessity of deciding it.40 constitutionality happens to be in issue." Section 5, Article contribution, indemnity, subrogation or any other relief, in
VIII of the 1987 Constitution reads in part as follows: respect of his opponent's claim.52As pointed out by Justice
In defending his failure to attack the constitutionality of R.A. Teresita J. Leonardo-De Castro, the unconstitutionality of a
9262 before the RTC of Bacolod City, petitioner argues that statute is not a cause of action that could be the subject of a
SEC. 5. The Supreme Court shall have the following powers:
the Family Court has limited authority and jurisdiction that is counterclaim, cross-claim or a third-party complaint.
"inadequate to tackle the complex issue of Therefore, it is not prohibited from being raised in the
constitutionality."41 xxx opposition in view of the familiar maxim expressio unius est
exclusio alterius.
We disagree. 2. Review, revise, reverse, modify, or affirm on appeal or
certiorari, as the law or the Rules of Court may provide, final Moreover, it cannot be denied that this issue affects the
judgments and orders of lower courts in: resolution of the case a quo because the right of private
Family Courts have authority and jurisdiction to consider the respondent to a protection order is founded solely on the
constitutionality of a statute. very statute the validity of which is being attacked53 by
a. All cases in which the constitutionality or validity of any
petitioner who has sustained, or will sustain, direct injury as
treaty, international or executive agreement, law, presidential
At the outset, it must be stressed that Family Courts are a result of its enforcement. The alleged unconstitutionality of
decree, proclamation, order, instruction, ordinance, or
special courts, of the same level as Regional Trial Courts. R.A. 9262 is, for all intents and purposes, a valid cause for
regulation is in question.
Under R.A. 8369, otherwise known as the "Family Courts Act the non-issuance of a protection order.
of 1997," family courts have exclusive original jurisdiction to
hear and decide cases of domestic violence against women xxxx
That the proceedings in Civil Case No. 06-797 are summary
and children.42 In accordance with said law, the Supreme in nature should not have deterred petitioner from raising the
Court designated from among the branches of the Regional Thus, contrary to the posturing of petitioner, the issue of same in his Opposition. The question relative to the
Trial Courts at least one Family Court in each of several key constitutionality of R.A. 9262 could have been raised at the constitutionality of a statute is one of law which does not
need to be supported by evidence.54 Be that as it may, As the rules stand, a review of the case by appeal or providing protection to "all family members, leaving no one in
Section 25 of A.M. No. 04-10-11-SC nonetheless allows the certiorari before judgment is prohibited. Moreover, if the isolation" but at the same time giving special attention to
conduct of a hearing to determine legal issues, among appeal of a judgment granting permanent protection shall not women as the "usual victims" of violence and
others, viz: stay its enforcement,55 with more reason that a TPO, which abuse,64 nonetheless, it was eventually agreed that men be
is valid only for thirty (30) days at a time,56 should not be denied protection under the same measure. We quote
enjoined. pertinent portions of the deliberations:
SEC. 25. Order for further hearing. - In case the court
determines the need for further hearing, it may issue an
order containing the following: The mere fact that a statute is alleged to be unconstitutional Wednesday, December 10, 2003
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
(a) Facts undisputed and admitted; Senator Pangilinan. I just wanted to place this on record, Mr.
the United States declared, thus:
President. Some women's groups have expressed concerns
and relayed these concerns to me that if we are to include
(b) Factual and legal issues to be resolved;
Federal injunctions against state criminal statutes, either in domestic violence apart from against women as well as other
their entirety or with respect to their separate and distinct members of the household, including children or the
(c) Evidence, including objects and documents prohibitions, are not to be granted as a matter of course, husband, they fear that this would weaken the efforts to
that have been marked and will be presented; even if such statutes are unconstitutional. No citizen or address domestic violence of which the main victims or the
member of the community is immune from prosecution, in bulk of the victims really are the wives, the spouses or the
good faith, for his alleged criminal acts. The imminence of female partners in a relationship. We would like to place that
(d) Names of witnesses who will be ordered to such a prosecution even though alleged to be unauthorized on record. How does the good Senator respond to this kind
present their direct testimonies in the form of
and, hence, unlawful is not alone ground for relief in equity of observation?
affidavits; and which exerts its extraordinary powers only to prevent
irreparable injury to the plaintiff who seeks its aid. (Citations
Senator Estrada. Yes, Mr. President, there is this group of
(e) Schedule of the presentation of evidence by omitted)
women who call themselves "WIIR" Women in Intimate
both parties which shall be done in one day, to the Relationship. They do not want to include men in this
extent possible, within the 30-day period of the The sole objective of injunctions is to preserve the status quo domestic violence. But plenty of men are also being abused
effectivity of the temporary protection order issued.
until the trial court hears fully the merits of the case. It bears by women. I am playing safe so I placed here members of
(Emphasis supplied) stressing, however, that protection orders are granted ex the family, prescribing penalties therefor and providing
parte so as to protect women and their children from acts of protective measures for victims. This includes the men,
To obviate potential dangers that may arise concomitant to violence. To issue an injunction against such orders will children, live-in, common-law wives, and those related with
the conduct of a hearing when necessary, Section 26 (b) of defeat the very purpose of the law against VAWC. the family.65
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 Notwithstanding all these procedural flaws, we shall not shirk xxx
renew the said order for a period of thirty (30) days each from our obligation to determine novel issues, or issues of
time until final judgment is rendered. It may likewise modify first impression, with far-reaching implications. We have,
the extended or renewed temporary protection order as may Wednesday, January 14, 2004
time and again, discharged our solemn duty as final arbiter
be necessary to meet the needs of the parties. With the of constitutional issues, and with more reason now, in view
private respondent given ample protection, petitioner could
of private respondent's plea in her Comment59 to the instant xxxx
proceed to litigate the constitutional issues, without Petition that we should put the challenge to the
necessarily running afoul of the very purpose for the constitutionality of R.A. 9262 to rest. And so we shall.
adoption of the rules on summary procedure. The President Pro Tempore. x x x

Intent of Congress in enacting R.A. 9262.


In view of all the foregoing, the appellate court correctly Also, may the Chair remind the group that there was the
dismissed the petition for prohibition with prayer for discussion whether to limit this to women and not to families
injunction and temporary restraining order (CA-G.R. CEB - Petitioner claims that since R.A. 9262 is intended to prevent which was the issue of the AWIR group. The understanding
SP. No. 01698). Petitioner may have proceeded upon an and criminalize spousal and child abuse, which could very that I have is that we would be having a broader scope
honest belief that if he finds succor in a superior court, he well be committed by either the husband or the wife, gender rather than just women, if I remember correctly, Madam
could be granted an injunctive relief. However, Section 22(j) alone is not enough basis to deprive the husband/father of sponsor.
of A.M. No. 04-10-11-SC expressly disallows the filing of a the remedies under the law.60
petition for certiorari, mandamus or prohibition against any
Senator Estrada. Yes, Mr. President.
interlocutory order issued by the trial court. Hence, the 60-
A perusal of the deliberations of Congress on Senate Bill No.
day TRO issued by the appellate court in this case against
2723,61 which became R.A. 9262, reveals that while the
the enforcement of the TPO, the amended TPOs and other As a matter of fact, that was brought up by Senator
sponsor, Senator Luisa Pimentel-Ejercito (better known as
orders pursuant thereto was improper, and it effectively Pangilinan during the interpellation period.
Senator Loi Estrada), had originally proposed what she
hindered the case from taking its normal course in an
called a "synthesized measure"62 – an amalgamation of two
expeditious and summary manner.
measures, namely, the "Anti-Domestic Violence Act" and the I think Senator Sotto has something to say to that.
"Anti-Abuse of Women in Intimate Relationships Act"63 –
Senator Legarda. Mr. President, the reason I am in support an obligation to uphold inherent rights and dignity of both The President Pro Tempore. Yes, please proceed.
of the measure. Do not get me wrong. However, I believe husband and wife and their immediate family members,
that there is a need to protect women's rights especially in particularly children.
Senator Sotto. Mr. President, I am inclined to believe the
the domestic environment.
rationale used by the distinguished proponent of the
While I prefer to focus mainly on women, I was compelled to amendment. As a matter of fact, I tend to agree. Kung may
As I said earlier, there are nameless, countless, voiceless include other family members as a critical input arrived at maaabuso, mas malamang iyong babae kaysa sa lalake. At
women who have not had the opportunity to file a case after a series of consultations/meetings with various NGOs, saka iyong mga lalake, puwede na talagang magulpi iyan.
against their spouses, their live-in partners after years, if not experts, sports groups and other affected sectors, Mr. Okey lang iyan. But I cannot agree that we remove the
decade, of battery and abuse. If we broaden the scope to President. children from this particular measure.
include even the men, assuming they can at all be abused
by the women or their spouses, then it would not equalize
Senator Sotto. Mr. President. So, if I may propose an amendment –
the already difficult situation for women, Mr. President.

The President Pro Tempore. Yes, with the permission of the The President Pro Tempore. To the amendment.
I think that the sponsor, based on our earlier conversations,
other senators.
concurs with this position. I am sure that the men in this
Chamber who love their women in their lives so dearly will Senator Sotto. – more than the women, the children are very
agree with this representation. Whether we like it or not, it is Senator Sotto. Yes, with the permission of the two ladies on much abused. As a matter of fact, it is not limited to minors.
an unequal world. Whether we like it or not, no matter how the Floor. The abuse is not limited to seven, six, 5-year-old children. I
empowered the women are, we are not given equal have seen 14, 15-year-old children being abused by their
opportunities especially in the domestic environment where fathers, even by their mothers. And it breaks my heart to find
the macho Filipino man would always feel that he is stronger, The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is
out about these things.
more superior to the Filipino woman. recognized.

Because of the inadequate existing law on abuse of children,


xxxx Senator Sotto. I presume that the effect of the proposed
this particular measure will update that. It will enhance and
amendment of Senator Legarda would be removing the "men
hopefully prevent the abuse of children and not only women.
and children" in this particular bill and focus specifically on
The President Pro Tempore. What does the sponsor say? women alone. That will be the net effect of that proposed
amendment. Hearing the rationale mentioned by the SOTTO-LEGARDA AMENDMENTS
distinguished sponsor, Sen. Luisa "Loi" Ejercito Estrada, I
Senator Estrada. Mr. President, before accepting this, the
am not sure now whether she is inclined to accept the
committee came up with this bill because the family Therefore, may I propose an amendment that, yes, we
proposed amendment of Senator Legarda.
members have been included in this proposed measure remove the aspect of the men in the bill but not the children.
since the other members of the family other than women are
also possible victims of violence. While women are most I am willing to wait whether she is accepting this or not
likely the intended victims, one reason incidentally why the Senator Legarda. I agree, Mr. President, with the Minority
because if she is going to accept this, I will propose an
measure focuses on women, the fact remains that in some Leader.
amendment to the amendment rather than object to the
relatively few cases, men also stand to be victimized and amendment, Mr. President.
that children are almost always the helpless victims of The President Pro Tempore. Effectively then, it will be
violence. I am worried that there may not be enough women AND CHILDREN.
protection extended to other family members particularly xxxx
children who are excluded. Although Republic Act No. 7610,
for instance, more or less, addresses the special needs of Senator Sotto. Yes, Mr. President.
Senator Estrada. The amendment is accepted, Mr.
abused children. The same law is inadequate. Protection President.
orders for one are not available in said law. Senator Estrada. It is accepted, Mr. President.
The President Pro Tempore. Is there any objection?
I am aware that some groups are apprehensive about The President Pro Tempore. Is there any objection?
granting the same protection to men, fearing that they may [Silence] There being none, the amendment, as amended, is
use this law to justify their abusive behavior against women. xxxx
approved.66
However, we should also recognize that there are
established procedures and standards in our courts which Senator Sotto. x x x May I propose an amendment to the
give credence to evidentiary support and cannot just It is settled that courts are not concerned with the wisdom,
amendment.
arbitrarily and whimsically entertain baseless complaints. justice, policy, or expediency of a statute.67 Hence, we dare
not venture into the real motivations and wisdom of the
The President Pro Tempore. Before we act on the members of Congress in limiting the protection against
Mr. President, this measure is intended to harmonize family amendment? violence and abuse under R.A. 9262 to women and children
relations and to protect the family as the basic social only. No proper challenge on said grounds may be
institution. Though I recognize the unequal power relations entertained in this proceeding. Congress has made its
between men and women in our society, I believe we have Senator Sotto. Yes, Mr. President.
choice and it is not our prerogative to supplant this judgment. hereinafter be discussed and, as such, did not violate the Traditions subordinating women have a long history rooted in
The choice may be perceived as erroneous but even then, equal protection clause by favoring women over men as patriarchy – the institutional rule of men. Women were seen
the remedy against it is to seek its amendment or repeal by victims of violence and abuse to whom the State extends its in virtually all societies to be naturally inferior both physically
the legislative. By the principle of separation of powers, it is protection. and intellectually. In ancient Western societies, women
the legislative that determines the necessity, adequacy, whether slave, concubine or wife, were under the authority of
wisdom and expediency of any law.68 We only step in when men. In law, they were treated as property.
I. R.A. 9262 rests on substantial distinctions.
there is a violation of the Constitution. However, none was
sufficiently shown in this case.
The Roman concept of patria potestas allowed the husband
The unequal power relationship between women and men;
to beat, or even kill, his wife if she endangered his property
the fact that women are more likely than men to be victims of
R.A. 9262 does not violate the guaranty of equal protection right over her. Judaism, Christianity and other religions
violence; and the widespread gender bias and prejudice
of the laws. oriented towards the patriarchal family strengthened the
against women all make for real differences justifying the
male dominated structure of society.
classification under the law. As Justice McIntyre succinctly
Equal protection simply requires that all persons or things states, "the accommodation of differences ... is the essence
similarly situated should be treated alike, both as to rights of true equality."70 English feudal law reinforced the tradition of male control
conferred and responsibilities imposed. The oft-repeated over women. Even the eminent Blackstone has been quoted
disquisition in the early case of Victoriano v. Elizalde Rope in his commentaries as saying husband and wife were one
A. Unequal power relationship between men and women
Workers' Union69 is instructive: and that one was the husband. However, in the late 1500s
and through the entire 1600s, English common law began to
According to the Philippine Commission on Women (the limit the right of husbands to chastise their wives. Thus,
The guaranty of equal protection of the laws is not a
National Machinery for Gender Equality and Women's common law developed the rule of thumb, which allowed
guaranty of equality in the application of the laws upon all
Empowerment), violence against women (VAW) is deemed husbands to beat their wives with a rod or stick no thicker
citizens of the state. It is not, therefore, a requirement, in
to be closely linked with the unequal power relationship than their thumb.
order to avoid the constitutional prohibition against
between women and men otherwise known as "gender-
inequality, that every man, woman and child should be
based violence". Societal norms and traditions dictate people
affected alike by a statute. Equality of operation of statutes In the later part of the 19th century, legal recognition of these
to think men are the leaders, pursuers, providers, and take
does not mean indiscriminate operation on persons merely rights to chastise wives or inflict corporeal punishment
on dominant roles in society while women are nurturers,
as such, but on persons according to the circumstances ceased. Even then, the preservation of the family was given
men's companions and supporters, and take on subordinate
surrounding them. It guarantees equality, not identity of more importance than preventing violence to women.
roles in society. This perception leads to men gaining more
rights. The Constitution does not require that things which
power over women. With power comes the need to control to
are different in fact be treated in law as though they were the
retain that power. And VAW is a form of men's expression of The metamorphosis of the law on violence in the United
same. The equal protection clause does not forbid
controlling women to retain power.71 States followed that of the English common law. In 1871, the
discrimination as to things that are different. It does not
Supreme Court of Alabama became the first appellate court
prohibit legislation which is limited either in the object to
to strike down the common law right of a husband to beat his
which it is directed or by the territory within which it is to The United Nations, which has long recognized VAW as a
wife:
operate. 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 The privilege, ancient though it may be, to beat one's wife
The equal protection of the laws clause of the Constitution
a manifestation of historically unequal power relations with a stick, to pull her hair, choke her, spit in her face or kick
allows classification. Classification in law, as in the other
between men and women, which have led to domination her about the floor, or to inflict upon her like indignities, is not
departments of knowledge or practice, is the grouping of
over and discrimination against women by men and to the now acknowledged by our law... In person, the wife is
things in speculation or practice because they agree with
prevention of the full advancement of women, and that entitled to the same protection of the law that the husband
one another in certain particulars. A law is not invalid
violence against women is one of the crucial social can invoke for himself.
because of simple inequality. The very idea of classification
mechanisms by which women are forced into subordinate
is that of inequality, so that it goes without saying that the
positions, compared with men."72
mere fact of inequality in no manner determines the matter of As time marched on, the women's advocacy movement
constitutionality. All that is required of a valid classification is became more organized. The temperance leagues initiated
that it be reasonable, which means that the classification Then Chief Justice Reynato S. Puno traced the historical and it. These leagues had a simple focus. They considered the
should be based on substantial distinctions which make for social context of gender-based violence and developments evils of alcoholism as the root cause of wife abuse. Hence,
real differences; that it must be germane to the purpose of in advocacies to eradicate VAW, in his remarks delivered they demonstrated and picketed saloons, bars and their
the law; that it must not be limited to existing conditions only; during the Joint Launching of R.A. 9262 and its husbands' other watering holes. Soon, however, their
and that it must apply equally to each member of the class. Implementing Rules last October 27, 2004, the pertinent crusade was joined by suffragette movements, expanding
This Court has held that the standard is satisfied if the portions of which are quoted hereunder: the liberation movement's agenda. They fought for women's
classification or distinction is based on a reasonable right to vote, to own property, and more. Since then, the
foundation or rational basis and is not palpably arbitrary. feminist movement was on the roll.
(Emphasis supplied) 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 The feminist movement exposed the private invisibility of the
Measured against the foregoing jurisprudential yardstick, we under his control. I quote the early studies: domestic violence to the public gaze. They succeeded in
find that R.A. 9262 is based on a valid classification as shall transforming the issue into an important public concern. No
less than the United States Supreme Court, in 1992 case Beijing. The UN itself established a Commission on the
Planned Parenthood v. Casey, noted: Status of Women. Rape 997 927 659 837 811 770 1,

In an average 12-month period in this country, approximately The Philippines has been in cadence with the half – and full
two million women are the victims of severe assaults by their – steps of all these women's movements. No less
Incestuous Rape than 38 46 26 22 28 27 19
male partners. In a 1985 survey, women reported that nearly Section 14, Article II of our 1987 Constitution mandates the
one of every eight husbands had assaulted their wives State to recognize the role of women in nation building and
during the past year. The [American Medical Association] to ensure the fundamental equality before the law of women
views these figures as "marked underestimates," because and men. Our Senate has ratified the CEDAWAttempted
as well
Rape
as the 194 148 185 147 204 167 26
the nature of these incidents discourages women from Convention on the Rights of the Child and its two protocols.
reporting them, and because surveys typically exclude the To cap it all, Congress, on March 8, 2004, enacted Rep. Act
very poor, those who do not speak English well, and women No. 9262, entitled "An Act Defining Violence Against Women
who are homeless or in institutions or hospitals when the Acts Measuresoffor
and Their Children, Providing for Protective 580 536 382 358 445 485 74
survey is conducted. According to the AMA, "researchers on Victims, Prescribing Penalties therefor Lasciviousness
and for other
family violence agree that the true incidence of partner Purposes." (Citations omitted)
violence is probably double the above estimates; or four
million severely assaulted women per year." Physical
B. Women are the "usual" and "most likely" 3,553 2,335 1,892 1,505 1,307 1,498 2,
Injuries
Studies on prevalence suggest that from one-fifth to one-
victims of violence.
third of all women will be physically assaulted by a partner or
ex-partner during their lifetime... Thus on an average day in Sexual
the United States, nearly 11,000 women are severely At the time of the presentation of Senate Bill No. 2723, 53 37 38 46 18 54 83
Harassment
assaulted by their male partners. Many of these incidents official statistics on violence against women and children
involve sexual assault... In families where wife beating takes show that –
place, moreover, child abuse is often present as well.
RA 9262 218 924 1,269 2,387 3,599 5,285 9,
x x x physical injuries had the highest number of cases at
Other studies fill in the rest of this troubling picture. Physical 5,058 in 2002 representing 55.63% of total cases reported
violence is only the most visible form of abuse. Psychological (9,903). And for the first semester of 2003, there were 2,381
abuse, particularly forced social and economic isolation of reported cases out of 4,354 cases which Threats
represent 54.31%. 319 223 199 182 220 208 37
women, is also common. xxx (T)he total number of women in especially difficult
circumstances served by the Department of Social Welfare
and Development (DSWD) for the year 2002, there are 1,417
Many victims of domestic violence remain with their abusers,
physically abused/maltreated cases out ofSeduction
the total of 5,608 62 19 29 30 19 19 25
perhaps because they perceive no superior
cases. xxx (T)here are 1,091 DSWD cases out of a total
alternative...Many abused women who find temporary refuge
number of 3,471 cases for the first semester of 2003.
in shelters return to their husbands, in large part because
Female violence comprised more than 90% of all forms of
Concubinage 121 102 93 109 109 99 15
they have no other source of income... Returning to one's
abuse and violence and more than 90% of these reported
abuser can be dangerous. Recent Federal Bureau of
cases were committed by the women's intimate partners
Investigation statistics disclose that 8.8 percent of all
such as their husbands and live-in partners.73
homicide victims in the United States are killed by their RA 9208 17 11 16 24 34 152 19
spouses...Thirty percent of female homicide victims are killed
by their male partners. Recently, the Philippine Commission on Women presented
comparative statistics on violence against women across an
Abduction
eight-year period from 2004 to August of 2011 with violations
Finally in 1994, the United States Congress enacted the 16 34 23 28 18 25 22
under R.A. 9262 ranking first among /Kidnapping
the different29VAW
Violence Against Women Act.
categories since its implementation in 2004,74 thus:

In the International front, the women's struggle for equality


Unjust
Table 1. Annual Comparative Statistics on Vexation
Violence Against 90 50 59 59 83 703 18
was no less successful. The United States Charter and the
Women, 2004 - 2011*
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 Total 6,271 5,374 4,881 5,729 6,905 9,485 15
Forms of Discrimination Against Women (CEDAW).
Reported In 1993,
the UN General Assembly also adopted Casesthe Declaration on 2004 2005 2006 2007 2008 2009 2010 2011
*2011 report covers only from January to August
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
Source: Philippine National Police – Women and Children Women Act (VAWA), in defending the civil rights remedy as The distinction between men and women is germane to the
Protection Center (WCPC) a valid exercise of the U.S. Congress' authority under the purpose of R.A. 9262, which is to address violence
Commerce and Equal Protection Clauses. He stressed that committed against women and children, spelled out in its
the widespread gender bias in the U.S. has institutionalized Declaration of Policy, as follows:
On the other hand, no reliable estimates may be obtained on
historic prejudices against victims of rape or domestic
domestic abuse and violence against men in the Philippines
violence, subjecting them to "double victimization" – first at
because incidents thereof are relatively low and, perhaps, SEC. 2. Declaration of Policy. – It is hereby declared that the
the hands of the offender and then of the legal system.79
because many men will not even attempt to report the State values the dignity of women and children and
situation. In the United Kingdom, 32% of women who had guarantees full respect for human rights. The State also
ever experienced domestic violence did so four or five (or Our own Senator Loi Estrada lamented in her Sponsorship recognizes the need to protect the family and its members
more) times, compared with 11% of the smaller number of Speech for Senate Bill No. 2723 that "(w)henever violence particularly women and children, from violence and threats to
men who had ever experienced domestic violence; and occurs in the family, the police treat it as a private matter and their personal safety and security.
women constituted 89% of all those who had experienced 4 advise the parties to settle the conflict themselves. Once the
or more incidents of domestic violence.75Statistics in Canada complainant brings the case to the prosecutor, the latter is
Towards this end, the State shall exert efforts to address
show that spousal violence by a woman against a man is hesitant to file the complaint for fear that it might later be
violence committed against women and children in keeping
less likely to cause injury than the other way around (18 withdrawn. This lack of response or reluctance to be involved
with the fundamental freedoms guaranteed under the
percent versus 44 percent). Men, who experience violence by the police and prosecution reinforces the escalating,
Constitution and the provisions of the Universal Declaration
from their spouses are much less likely to live in fear of recurring and often serious nature of domestic violence."80
of Human Rights, the Convention on the Elimination of All
violence at the hands of their spouses, and much less likely
Forms of Discrimination Against Women, Convention on the
to experience sexual assault. In fact, many cases of physical
Sadly, our own courts, as well, have exhibited prejudices and Rights of the Child and other international human rights
violence by a woman against a spouse are in self-defense or
biases against our women. instruments of which the Philippines is a party.
the result of many years of physical or emotional abuse.76

In a recent case resolved on March 9, 2011, we fined RTC In 1979, the U.N. General Assembly adopted the CEDAW,
While there are, indeed, relatively few cases of violence and
Judge Venancio J. Amila for Conduct Unbecoming of a which the Philippines ratified on August 5, 1981.
abuse perpetrated against men in the Philippines, the same
Judge. He used derogatory and irreverent language in Subsequently, the Optional Protocol to the CEDAW was also
cannot render R.A. 9262 invalid.
reference to the complainant in a petition for TPO and PPO ratified by the Philippines on October 6, 2003.86 This
under R.A. 9262, calling her as "only a live-in partner" and Convention mandates that State parties shall accord to
In a 1960 case involving the violation of a city ordinance presenting her as an "opportunist" and a "mistress" in an women equality with men before the law87 and shall take all
requiring drivers of animal-drawn vehicles to pick up, gather "illegitimate relationship." Judge Amila even called her a appropriate measures to eliminate discrimination against
and deposit in receptacles the manure emitted or discharged "prostitute," and accused her of being motivated by women in all matters relating to marriage and family relations
by their vehicle-drawing animals in any public highways, "insatiable greed" and of absconding with the contested on the basis of equality of men and women. 88 The
streets, plazas, parks or alleys, said ordinance was property.81 Such remarks betrayed Judge Amila's prejudices Philippines likewise ratified the Convention on the Rights of
challenged as violative of the guaranty of equal protection of and lack of gender sensitivity. the Child and its two protocols.89 It is, thus, bound by said
laws as its application is limited to owners and drivers of Conventions and their respective protocols.
vehicle-drawing animals and not to those animals, although
The enactment of R.A. 9262 aims to address the
not utilized, but similarly pass through the same streets.
discrimination brought about by biases and prejudices III. The classification is not limited to existing
against women. As emphasized by the CEDAW Committee
The ordinance was upheld as a valid classification for the on the Elimination of Discrimination against Women,
conditions only, and apply equally to all members
reason that, while there may be non-vehicle-drawing animals addressing or correcting discrimination through specific
that also traverse the city roads, "but their number must be measures focused on women does not discriminate against
negligible and their appearance therein merely occasional, men.82Petitioner's contention,83 therefore, that R.A. 9262 is Moreover, the application of R.A. 9262 is not limited to the
compared to the rig-drawing ones, as not to constitute a discriminatory and that it is an "anti-male," "husband- existing conditions when it was promulgated, but to future
menace to the health of the community."77 The mere fact that bashing," and "hate-men" law deserves scant consideration. conditions as well, for as long as the safety and security of
the legislative classification may result in actual inequality is As a State Party to the CEDAW, the Philippines bound itself women and their children are threatened by violence and
not violative of the right to equal protection, for every to take all appropriate measures "to modify the social and abuse.
classification of persons or things for regulation by law cultural patterns of conduct of men and women, with a view
produces inequality in some degree, but the law is not to achieving the elimination of prejudices and customary and
thereby rendered invalid.78 all other practices which are based on the idea of the R.A. 9262 applies equally to all women and children who
inferiority or the superiority of either of the sexes or on suffer violence and abuse. Section 3 thereof defines VAWC
as:
stereotyped roles for men and women."84 Justice Puno
C. Gender bias and prejudices
correctly pointed out that "(t)he paradigm shift changing the
character of domestic violence from a private affair to a x x x any act or a series of acts committed by any person
From the initial report to the police through prosecution, trial, public offense will require the development of a distinct against a woman who is his wife, former wife, or against a
and sentencing, crimes against women are often treated mindset on the part of the police, the prosecution and the woman with whom the person has or had a sexual or dating
differently and less seriously than other crimes. This was judges."85 relationship, or with whom he has a common child, or
argued by then United States Senator Joseph R. Biden, Jr., against her child whether legitimate or illegitimate, within or
now Vice President, chief sponsor of the Violence Against without the family abode, which result in or is likely to result
II. The classification is germane to the purpose of the law.
in physical, sexual, psychological harm or suffering, or wherein the other spouse/partner the woman encompasses even lesbian relationships.
economic abuse including threats of such acts, battery, objects on valid, serious and moral Moreover, while the law provides that the offender be related
assault, coercion, harassment or arbitrary deprivation of grounds as defined in Article 73 of the or connected to the victim by marriage, former marriage, or a
liberty. It includes, but is not limited to, the following acts: Family Code; 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
A. "Physical Violence" refers to acts that include bodily or 2. deprivation or threat of deprivation of
Tan,94 the parents-in-law of Sharica Mari L. Go-Tan, the
physical harm; financial resources and the right to the
victim, were held to be proper respondents in the case filed
use and enjoyment of the conjugal,
by the latter upon the allegation that they and their son (Go-
community or property owned in
B. "Sexual violence" refers to an act which is sexual in Tan's husband) had community of design and purpose in
common;
nature, committed against a woman or her child. It includes, tormenting her by giving her insufficient financial support;
but is not limited to: harassing and pressuring her to be ejected from the family
3. destroying household property; home; and in repeatedly abusing her verbally, emotionally,
mentally and physically.
a) rape, sexual harassment, acts of
lasciviousness, treating a woman or her 4. controlling the victims' own money or
child as a sex object, making demeaning properties or solely controlling the R.A. 9262 is not violative of the
and sexually suggestive remarks, conjugal money or properties. due process clause of the Constitution.
physically attacking the sexual parts of
the victim's body, forcing her/him to
It should be stressed that the acts enumerated in the Petitioner bewails the disregard of R.A. 9262, specifically in
watch obscene publications and
aforequoted provision are attributable to research that has the issuance of POs, of all protections afforded by the due
indecent shows or forcing the woman or
exposed the dimensions and dynamics of battery. The acts process clause of the Constitution. Says he: "On the basis of
her child to do indecent acts and/or
described here are also found in the U.N. Declaration on the unsubstantiated allegations, and practically no opportunity to
make films thereof, forcing the wife and
Elimination of Violence Against Women.90 Hence, the respond, the husband is stripped of family, property, guns,
mistress/lover to live in the conjugal
argument advanced by petitioner that the definition of what money, children, job, future employment and reputation, all
home or sleep together in the same
constitutes abuse removes the difference between violent in a matter of seconds, without an inkling of what
room with the abuser;
action and simple marital tiffs is tenuous. happened."95

b) acts causing or attempting to cause


There is nothing in the definition of VAWC that is vague and A protection order is an order issued to prevent further acts
the victim to engage in any sexual
ambiguous that will confuse petitioner in his defense. The of violence against women and their children, their family or
activity by force, threat of force, physical
acts enumerated above are easily understood and provide household members, and to grant other necessary reliefs. Its
or other harm or threat of physical or
adequate contrast between the innocent and the prohibited purpose is to safeguard the offended parties from further
other harm or coercion;
acts. They are worded with sufficient definiteness that harm, minimize any disruption in their daily life and facilitate
persons of ordinary intelligence can understand what the opportunity and ability to regain control of their life.96
c) Prostituting the woman or child. conduct is prohibited, and need not guess at its meaning nor
differ in its application.91 Yet, petitioner insists92that phrases
"The scope of reliefs in protection orders is broadened to
like "depriving or threatening to deprive the woman or her
C. "Psychological violence" refers to acts or omissions ensure that the victim or offended party is afforded all the
child of a legal right," "solely controlling the conjugal or
causing or likely to cause mental or emotional suffering of remedies necessary to curtail access by a perpetrator to the
common money or properties," "marital infidelity," and
the victim such as but not limited to intimidation, harassment, victim. This serves to safeguard the victim from greater risk
"causing mental or emotional anguish" are so vague that
stalking, damage to property, public ridicule or humiliation, of violence; to accord the victim and any designated family or
they make every quarrel a case of spousal abuse. However,
repeated verbal abuse and marital infidelity. It includes household member safety in the family residence, and to
we have stressed that the "vagueness" doctrine merely
causing or allowing the victim to witness the physical, sexual prevent the perpetrator from committing acts that jeopardize
requires a reasonable degree of certainty for the statute to
or psychological abuse of a member of the family to which the employment and support of the victim. It also enables the
be upheld – not absolute precision or mathematical
the victim belongs, or to witness pornography in any form or court to award temporary custody of minor children to protect
exactitude, as petitioner seems to suggest. Flexibility, rather
to witness abusive injury to pets or to unlawful or unwanted the children from violence, to prevent their abduction by the
than meticulous specificity, is permissible as long as the
deprivation of the right to custody and/or visitation of perpetrator and to ensure their financial support."97
metes and bounds of the statute are clearly delineated. An
common children.
act will not be held invalid merely because it might have
been more explicit in its wordings or detailed in its The rules require that petitions for protection order be in
D. "Economic abuse" refers to acts that make or attempt to provisions.93 writing, signed and verified by the petitioner98 thereby
make a woman financially dependent which includes, but is undertaking full responsibility, criminal or civil, for every
not limited to the following: allegation therein. Since "time is of the essence in cases of
There is likewise no merit to the contention that R.A. 9262
VAWC if further violence is to be prevented,"99 the court is
singles out the husband or father as the culprit. As defined
authorized to issue ex parte a TPO after raffle but before
1. withdrawal of financial support or above, VAWC may likewise be committed "against a woman
notice and hearing when the life, limb or property of the
preventing the victim from engaging in with whom the person has or had a sexual or dating
victim is in jeopardy and there is reasonable ground to
any legitimate profession, occupation, relationship." Clearly, the use of the gender-neutral word
believe that the order is necessary to protect the victim from
business or activity, except in cases "person" who has or had a sexual or dating relationship with
the immediate and imminent danger of VAWC or to prevent one may be heard also through pleadings. Where respondent just claim any property and appropriate it for
such violence, which is about to recur.100 opportunity to be heard, either through oral arguments or herself, as petitioner seems to suggest?
pleadings, is accorded, there is no denial of procedural due
process.107
There need not be any fear that the judge may have no The non-referral of a VAWC case
rational basis to issue an ex parte order. The victim is to a mediator is justified.
required not only to verify the allegations in the petition, but It should be recalled that petitioner filed on April 26, 2006 an
also to attach her witnesses' affidavits to the petition.101 Opposition to the Urgent Ex-Parte Motion for Renewal of the
Petitioner argues that "by criminalizing run-of-the-mill
TPO that was granted only two days earlier on April 24,
arguments, instead of encouraging mediation and
2006. Likewise, on May 23, 2006, petitioner filed a motion for
The grant of a TPO ex parte cannot, therefore, be counseling, the law has done violence to the avowed policy
the modification of the TPO to allow him visitation rights to
challenged as violative of the right to due process. Just like a of the State to "protect and strengthen the family as a basic
his children. Still, the trial court in its Order dated September
writ of preliminary attachment which is issued without notice autonomous social institution."109
26, 2006, gave him five days (5) within which to show cause
and hearing because the time in which the hearing will take
why the TPO should not be renewed or extended. Yet, he
could be enough to enable the defendant to abscond or
chose not to file the required comment arguing that it would Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall
dispose of his property,102 in the same way, the victim of
just be an "exercise in futility," conveniently forgetting that not refer the case or any issue thereof to a mediator. The
VAWC may already have suffered harrowing experiences in
the renewal of the questioned TPO was only for a limited reason behind this provision is well-explained by the
the hands of her tormentor, and possibly even death, if
period (30 days) each time, and that he could prevent the Commentary on Section 311 of the Model Code on Domestic
notice and hearing were required before such acts could be
continued renewal of said order if he can show sufficient and Family Violence as follows:110
prevented. It is a constitutional commonplace that the
cause therefor. Having failed to do so, petitioner may not
ordinary requirements of procedural due process must yield
now be heard to complain that he was denied due process of
to the necessities of protecting vital public interests, 103among This section prohibits a court from ordering or referring
law.
which is protection of women and children from violence and parties to mediation in a proceeding for an order for
threats to their personal safety and security. protection. Mediation is a process by which parties in
Petitioner next laments that the removal and exclusion of the equivalent bargaining positions voluntarily reach consensual
respondent in the VAWC case from the residence of the agreement about the issue at hand. Violence, however, is
It should be pointed out that when the TPO is issued ex
victim, regardless of ownership of the residence, is virtually a not a subject for compromise. A process which involves
parte, the court shall likewise order that notice be
"blank check" issued to the wife to claim any property as her parties mediating the issue of violence implies that the victim
immediately given to the respondent directing him to file an
conjugal home.108 is somehow at fault. In addition, mediation of issues in a
opposition within five (5) days from service. Moreover, the
proceeding for an order of protection is problematic because
court shall order that notice, copies of the petition and TPO
the petitioner is frequently unable to participate equally with
be served immediately on the respondent by the court The wording of the pertinent rule, however, does not by any
the person against whom the protection order has been
sheriffs. The TPOs are initially effective for thirty (30) days stretch of the imagination suggest that this is so. It states:
sought. (Emphasis supplied)
from service on the respondent.104
SEC. 11. Reliefs available to the offended party. -- The
There is no undue delegation of
Where no TPO is issued ex parte, the court will nonetheless protection order shall include any, some or all of the
judicial power to barangay officials.
order the immediate issuance and service of the notice upon following reliefs:
the respondent requiring him to file an opposition to the
petition within five (5) days from service. The date of the Petitioner contends that protection orders involve the
xxxx
preliminary conference and hearing on the merits shall exercise of judicial power which, under the Constitution, is
likewise be indicated on the notice.105 placed upon the "Supreme Court and such other lower
(c) Removing and excluding the respondent from the courts as may be established by law" and, thus, protests the
residence of the offended party, regardless of ownership of delegation of power to barangay officials to issue protection
The opposition to the petition which the respondent himself
the residence, either temporarily for the purpose of orders.111 The pertinent provision reads, as follows:
shall verify, must be accompanied by the affidavits of
protecting the offended party, or permanently where no
witnesses and shall show cause why a temporary or
property rights are violated. If the respondent must remove
permanent protection order should not be issued.106 SEC. 14. Barangay Protection Orders (BPOs); Who May
personal effects from the residence, the court shall direct a
Issue and How. – Barangay Protection Orders (BPOs) refer
law enforcement agent to accompany the respondent to the
to the protection order issued by the Punong Barangay
It is clear from the foregoing rules that the respondent of a residence, remain there until the respondent has gathered
ordering the perpetrator to desist from committing acts under
petition for protection order should be apprised of the his things and escort him from the residence;
Section 5 (a) and (b) of this Act.1âwphi1 A Punong Barangay
charges imputed to him and afforded an opportunity to
who receives applications for a BPO shall issue the
present his side. Thus, the fear of petitioner of being
xxxx protection order to the applicant on the date of filing after ex
"stripped of family, property, guns, money, children, job,
parte determination of the basis of the application. If the
future employment and reputation, all in a matter of seconds,
Punong Barangay is unavailable to act on the application for
without an inkling of what happened" is a mere product of an Indubitably, petitioner may be removed and excluded from
a BPO, the application shall be acted upon by any available
overactive imagination. The essence of due process is to be private respondent's residence, regardless of ownership,
Barangay Kagawad. If the BPO is issued by a Barangay
found in the reasonable opportunity to be heard and submit only temporarily for the purpose of protecting the latter. Such
Kagawad, the order must be accompanied by an attestation
any evidence one may have in support of one's defense. "To removal and exclusion may be permanent only where no
by the Barangay Kagawad that the Punong Barangay was
be heard" does not only mean verbal arguments in court; property rights are violated. How then can the private
unavailable at the time of the issuance of the BPO. BPOs
shall be effective for fifteen (15) days. Immediately after the nil. As already stated, assistance by barangay officials and The facts
issuance of an ex parte BPO, the Punong Barangay or other law enforcement agencies is consistent with their duty
Barangay Kagawad shall personally serve a copy of the to enforce the law and to maintain peace and order.
On October 22, 2004, Fringer, an American citizen, and
same on the respondent, or direct any barangay official to
Albios were married before Judge Ofelia I. Calo of the
effect its personal service.
Conclusion Metropolitan Trial Court, Branch59, Mandaluyong City
(MeTC), as evidenced by a Certificate of Marriage with
The parties may be accompanied by a non-lawyer advocate Register No. 2004-1588.3
Before a statute or its provisions duly challenged are voided,
in any proceeding before the Punong Barangay.
an unequivocal breach of, or a clear conflict with the
Constitution, not merely a doubtful or argumentative one, On December 6, 2006, Albios filed with the RTC a petition
Judicial power includes the duty of the courts of justice to must be demonstrated in such a manner as to leave no for declaration of nullity 4 of her marriage with Fringer. She
settle actual controversies involving rights which are legally doubt in the mind of the Court. In other words, the grounds alleged that immediately after their marriage, they separated
demandable and enforceable, and to determine whether or for nullity must be beyond reasonable doubt.116 In the instant and never lived as husband and wife because they never
not there has been a grave abuse of discretion amounting to case, however, no concrete evidence and convincing really had any intention of entering into a married state or
lack or excess of jurisdiction on the part of any branch or arguments were presented by petitioner to warrant a complying with any of their essential marital obligations. She
instrumentality of the Government.112 On the other hand, declaration of the unconstitutionality of R.A. 9262, which is described their marriage as one made in jest and, therefore,
executive power "is generally defined as the power to an act of Congress and signed into law by the highest officer null and void ab initio .
enforce and administer the laws. It is the power of carrying of the co-equal executive department. As we said in Estrada
the laws into practical operation and enforcing their due v. Sandiganbayan, 117 courts must assume that the
Summons was served on Fringer but he did not file his
observance."113 legislature is ever conscious of the borders and edges of its
answer. On September 13, 2007, Albios filed a motion to set
plenary powers, and passed laws with full knowledge of the
case for pre-trial and to admit her pre-trial brief. The RTC
facts and for the purpose of promoting what is right and
As clearly delimited by the aforequoted provision, the BPO ordered the Assistant Provincial Prosecutor to conduct an
advancing the welfare of the majority.
issued by the Punong Barangay or, in his unavailability, by investigation and determine the existence of a collusion. On
any available Barangay Kagawad, merely orders the October 2, 2007, the Assistant Prosecutor complied and
perpetrator to desist from (a) causing physical harm to the We reiterate here Justice Puno's observation that "the reported that she could not make a determination for failure
woman or her child; and (2) threatening to cause the woman history of the women's movement against domestic violence of both parties to appear at the scheduled investigation.
or her child physical harm. Such function of the Punong shows that one of its most difficult struggles was the fight
Barangay is, thus, purely executive in nature, in pursuance against the violence of law itself. If we keep that in mind, law
At the pre-trial, only Albios, her counsel and the prosecutor
of his duty under the Local Government Code to "enforce all will not again be a hindrance to the struggle of women for
appeared. Fringer did not attend the hearing despite being
laws and ordinances," and to "maintain public order in the equality but will be its fulfillment."118 Accordingly, the
duly notified of the schedule. After the pre-trial, hearing on
barangay."114 constitutionality of R.A. 9262 is, as it should be, sustained.
the merits ensued.

We have held that "(t)he mere fact that an officer is required WHEREFORE, the instant petition for review on certiorari is
Ruling of the RTC
by law to inquire into the existence of certain facts and to hereby DENIED for lack of merit.
apply the law thereto in order to determine what his official
conduct shall be and the fact that these acts may affect In its April 25, 2008 Decision,5 the RTC declared the
SO ORDERED.
private rights do not constitute an exercise of judicial marriage void ab initio, the dispositive portion of which reads:
powers."115
G.R. No. 198780 October 16, 2013
WHEREFORE, premises considered, judgment is hereby
In the same manner as the public prosecutor ascertains rendered declaring the marriage of Liberty Albios and Daniel
through a preliminary inquiry or proceeding "whether there is REPUBLIC OF THE PHILIPPINES, Petitioner, Lee Fringer as void from the very beginning. As a necessary
reasonable ground to believe that an offense has been vs. consequence of this pronouncement, petitioner shall cease
committed and the accused is probably guilty thereof," the LIBERTY D. ALBIOS, Respondent. using the surname of respondent as she never acquired any
Punong Barangay must determine reasonable ground to right over it and so as to avoid a misimpression that she
believe that an imminent danger of violence against the remains the wife of respondent.
woman and her children exists or is about to recur that would DECISION
necessitate the issuance of a BPO. The preliminary
investigation conducted by the prosecutor is, concededly, an xxxx
MENDOZA, J.:
executive, not a judicial, function. The same holds true with
the issuance of a BPO. SO ORDERED.6
This is a petition for review on certiorari under Rule 45 of the
Rules t of Court assailing the September 29, 2011
We need not even belabor the issue raised by petitioner that Decision1 of the Court of Appeals (CA), in CA-G.R. CV No. The RTC was of the view that the parties married each other
since barangay officials and other law enforcement agencies 95414, which affirmed the April 25, 2008Decision2 of the for convenience only. Giving credence to the testimony of
are required to extend assistance to victims of violence and Regional Trial Court, Imus, Cavite (RTC). declaring the Albios, it stated that she contracted Fringer to enter into a
abuse, it would be very unlikely that they would remain marriage of Daniel Lee Fringer (Fringer) and respondent marriage to enable her to acquire American citizenship; that
objective and impartial, and that the chances of acquittal are Liberty Albios (A/bios) as void from the beginning. in consideration thereof, she agreed to pay him the sum of
$2,000.00; that after the ceremony, the parties went their The OSG also argues that the present case does not fall intention to establish a life together, to determining the
separate ways; that Fringer returned to the United States within the concept of a marriage in jest. The parties here intention of evading immigration laws.16 It must be noted,
and never again communicated with her; and that, in turn, intentionally consented to enter into a real and valid however, that this standard is used purely for immigration
she did not pay him the $2,000.00 because he never marriage, for if it were otherwise, the purpose of Albios to purposes and, therefore, does not purport to rule on the legal
processed her petition for citizenship. The RTC, thus, ruled acquire American citizenship would be rendered futile. validity or existence of a marriage.
that when marriage was entered into for a purpose other
than the establishment of a conjugal and family life, such
On October 29, 2012, Albios filed her Comment9 to the The question that then arises is whether a marriage declared
was a farce and should not be recognized from its inception.
petition, reiterating her stand that her marriage was similar to as a sham or fraudulent for the limited purpose of
a marriage by way of jest and, therefore, void from the immigration is also legally void and in existent. The early
Petitioner Republic of the Philippines, represented by the beginning. cases on limited purpose marriages in the United States
Office of the Solicitor General (OSG), filed a motion for made no definitive ruling. In 1946, the notable case of
reconsideration. The RTC issued the Order, 7 dated
On March 22, 2013, the OSG filed its Reply10 reiterating its
February 5, 2009, denying the motion for want of merit. It
arguments in its petition for review on certiorari. United States v. Rubenstein17 was promulgated, wherein in
explained that the marriage was declared void because the
order to allow an alien to stay in the country, the parties had
parties failed to freely give their consent to the marriage as
agreed to marry but not to live together and to obtain a
they had no intention to be legally bound by it and used it Ruling of the Court
divorce within six months. The Court, through Judge Learned
only as a means to acquire American citizenship in
Hand, ruled that a marriage to convert temporary into
consideration of $2,000.00.
The resolution of this case hinges on this sole question of permanent permission to stay in the country was not a
law: Is a marriage, contracted for the sole purpose of marriage, there being no consent, to wit:
Not in conformity, the OSG filed an appeal before the CA. acquiring American citizenship in consideration of $2,000.00,
void ab initio on the ground of lack of consent?
x x x But, that aside, Spitz and Sandler were never married
Ruling of the CA at all. Mutual consent is necessary to every contract; and no
The Court resolves in the negative. matter what forms or ceremonies the parties may go through
indicating the contrary, they do not contract if they do not in
In its assailed decision, dated September 29, 2011, the CA
fact assent, which may always be proved. x x x Marriage is
affirmed the RTC ruling which found that the essential Before the Court delves into its ruling, It shall first examine
no exception to this rule: a marriage in jest is not a marriage
requisite of consent was lacking. The CA stated that the the phenomenon of marriage fraud for the purposes of at all. x x x It is quite true that a marriage without subsequent
parties clearly did not understand the nature and immigration. consummation will be valid; but if the spouses agree to a
consequence of getting married and that their case was
marriage only for the sake of representing it as such to the
similar to a marriage in jest. It further explained that the
Marriage Fraud in Immigration outside world and with the understanding that they will put an
parties never intended to enter into the marriage contract
end to it as soon as it has served its purpose to deceive,
and never intended to live as husband and wife or build a
they have never really agreed to be married at all. They must
family. It concluded that their purpose was primarily for The institution of marriage carries with it concomitant assent to enter into the relation as it is ordinarily understood,
personal gain, that is, for Albios to obtain foreign citizenship, benefits. This has led to the development of marriage fraud and it is not ordinarily understood as merely a pretence, or
and for Fringer, the consideration of $2,000.00. for the sole purpose of availing of particular benefits. In the cover, to deceive others.18
United States, marriages where a couple marries only to
Hence, this petition. achieve a particular purpose or acquire specific benefits,
have been referred to as "limited purpose" marriages. 11 A (Italics supplied)
common limited purpose marriage is one entered into solely
Assignment of Error for the legitimization of a child.12 Another, which is the On the other end of the spectrum is the 1969 case of Mpiliris
subject of the present case, is for immigration purposes.
v. Hellenic Lines,19 which declared as valid a marriage
Immigration law is usually concerned with the intention of the entered into solely for the husband to gain entry to the
THE COURT OF APPEALS ERRED ON A QUESTION OF
couple at the time of their marriage,13 and it attempts to filter United States, stating that a valid marriage could not be
LAWWHEN IT HELD THAT A MARRIAGE CONTRACTED
out those who use marriage solely to achieve immigration
FOR THEPURPOSE OF OBTAINING FOREIGN avoided "merely because the marriage was entered into for a
status.14 limited purpose."20 The 1980 immigration case of Matter of
CITIZENSHIP WAS DONEIN JEST, HENCE, LACKING IN
THE ESSENTIAL ELEMENT OFCONSENT.8 McKee,21 further recognized that a fraudulent or sham
In 1975, the seminal case of Bark v. Immigration and marriage was intrinsically different from a non subsisting
Naturalization Service,15 established the principal test for one.
The OSG argues that albeit the intention was for Albios to
determining the presence of marriage fraud in immigration
acquire American citizenship and for Fringer to be paid
cases. It ruled that a "marriage is a sham if the bride and
$2,000.00, both parties freely gave their consent to the Nullifying these limited purpose marriages for lack of consent
groom did not intend to establish a life together at the time has, therefore, been recognized as problematic. The
marriage, as they knowingly and willingly entered into that
they were married. "This standard was modified with the problem being that in order to obtain an immigration benefit,
marriage and knew the benefits and consequences of being
passage of the Immigration Marriage Fraud Amendment of
bound by it. According to the OSG, consent should be a legal marriage is first necessary.22 At present, United
1986 (IMFA), which now requires the couple to instead States courts have generally denied annulments involving"
distinguished from motive, the latter being inconsequential to
demonstrate that the marriage was not "entered into for the limited purpose" marriages where a couple married only to
the validity of marriage.
purpose of evading the immigration laws of the United
States." The focus, thus, shifted from determining the
achieve a particular purpose, and have upheld such acquiring American citizenship through marriage. Such a couple chooses to lead. Any attempt to regulate their
marriages as valid.23 plainly demonstrates that they willingly and deliberately lifestyle would go into the realm of their right to privacy and
contracted the marriage. There was a clear intention to enter would raise serious constitutional questions.29 The right to
into a real and valid marriage so as to fully comply with the marital privacy allows married couples to structure their
The Court now turns to the case at hand.
requirements of an application for citizenship. There was a marriages in almost any way they see fit, to live together or
full and complete understanding of the legal tie that would be live apart, to have children or no children, to love one
Respondent’s marriage not void created between them, since it was that precise legal tie another or not, and so on.30 Thus, marriages entered into for
which was necessary to accomplish their goal. other purposes, limited or otherwise, such as convenience,
companionship, money, status, and title, provided that they
In declaring the respondent’s marriage void, the RTC ruled comply with all the legal requisites,31are equally valid. Love,
that when a marriage was entered into for a purpose other In ruling that Albios’ marriage was void for lack of consent,
though the ideal consideration in a marriage contract, is not
than the establishment of a conjugal and family life, such the CA characterized such as akin to a marriage by way of
the only valid cause for marriage. Other considerations, not
was a farce and should not be recognized from its inception. jest. A marriage in jest is a pretended marriage, legal in form
precluded by law, may validly support a marriage.
In its resolution denying the OSG’s motion for but entered into as a joke, with no real intention of entering
reconsideration, the RTC went on to explain that the into the actual marriage status, and with a clear
marriage was declared void because the parties failed to understanding that the parties would not be bound. The Although the Court views with disdain the respondent’s
freely give their consent to the marriage as they had no ceremony is not followed by any conduct indicating a attempt to utilize marriage for dishonest purposes, It cannot
intention to be legally bound by it and used it only as a purpose to enter into such a relation.27 It is a pretended declare the marriage void. Hence, though the respondent’s
means for the respondent to acquire American citizenship. marriage not intended to be real and with no intention to marriage may be considered a sham or fraudulent for the
Agreeing with the RTC, the CA ruled that the essential create any legal ties whatsoever, hence, the absence of any purposes of immigration, it is not void ab initio and continues
requisite of consent was lacking. It held that the parties genuine consent. Marriages in jest are void ab initio, not for to be valid and subsisting.
clearly did not understand the nature and consequence of vitiated, defective, or unintelligent consent, but for a
getting married. As in the Rubenstein case, the CA found the complete absence of consent. There is no genuine consent
Neither can their marriage be considered voidable on the
marriage to be similar to a marriage in jest considering that because the parties have absolutely no intention of being
ground of fraud under Article 45 (3) of the Family Code. Only
the parties only entered into the marriage for the acquisition bound in any way or for any purpose.
the circumstances listed under Article 46 of the same Code
of American citizenship in exchange of $2,000.00. They
may constitute fraud, namely, (1) non- disclosure of a
never intended to enter into a marriage contract and never
The respondent’s marriage is not at all analogous to a previous conv1ctwn involving moral turpitude; (2)
intended to live as husband and wife or build a family.
marriage in jest.1âwphi1 Albios and Fringer had an concealment by the wife of a pregnancy by another man; (3)
undeniable intention to be bound in order to create the very concealment of a sexually transmitted disease; and (4)
The CA’s assailed decision was, therefore, grounded on the bond necessary to allow the respondent to acquire American concealment of drug addiction, alcoholism, or homosexuality.
parties’ supposed lack of consent. Under Article 2 of the citizenship. Only a genuine consent to be married would No other misrepresentation or deceit shall constitute fraud as
Family Code, consent is an essential requisite of marriage. allow them to further their objective, considering that only a a ground for an action to annul a marriage. Entering into a
Article 4 of the same Code provides that the absence of any valid marriage can properly support an application for marriage for the sole purpose of evading immigration laws
essential requisite shall render a marriage void ab initio. citizenship. There was, thus, an apparent intention to enter does not qualify under any of the listed circumstances.
into the actual marriage status and to create a legal tie, albeit Furthermore, under Article 47 (3), the ground of fraud may
for a limited purpose. Genuine consent was, therefore, only be brought by the injured or innocent party. In the
Under said Article 2, for consent to be valid, it must be (1) clearly present. present case, there is no injured party because Albios and
freely given and (2) made in the presence of a solemnizing
Fringer both conspired to enter into the sham marriage.
officer. A "freely given" consent requires that the contracting
parties willingly and deliberately enter into the marriage. The avowed purpose of marriage under Article 1 of the
Consent must be real in the sense that it is not vitiated nor Family Code is for the couple to establish a conjugal and Albios has indeed made a mockery of the sacred institution
rendered defective by any of the vices of consent under family life. The possibility that the parties in a marriage might of marriage. Allowing her marriage with Fringer to be
Articles45 and 46 of the Family Code, such as fraud, force, have no real intention to establish a life together is, however, declared void would only further trivialize this inviolable
intimidation, and undue influence.24Consent must also be insufficient to nullify a marriage freely entered into in institution. The Court cannot declare such a marriage void in
conscious or intelligent, in that the parties must be capable accordance with law. The same Article 1 provides that the the event the parties fail to qualify for immigration benefits,
of intelligently understanding the nature of, and both the nature, consequences, and incidents of marriage are after they have availed of its benefits, or simply have no
beneficial or unfavorable consequences of their act.25 Their governed by law and not subject to stipulation. A marriage further use for it. These unscrupulous individuals cannot be
understanding should not be affected by insanity, may, thus, only be declared void or voidable under the allowed to use the courts as instruments in their fraudulent
intoxication, drugs, or hypnotism.26 grounds provided by law. There is no law that declares a schemes. Albios already misused a judicial institution to
marriage void if it is entered into for purposes other than enter into a marriage of convenience; she should not be
what the Constitution or law declares, such as the acquisition allowed to again abuse it to get herself out of an
Based on the above, consent was not lacking between of foreign citizenship. Therefore, so long as all the essential inconvenient situation.
Albios and Fringer. In fact, there was real consent because it and formal requisites prescribed by law are present, and it is
was not vitiated nor rendered defective by any vice of
not void or voidable under the grounds provided by law, it
consent. Their consent was also conscious and intelligent as No less than our Constitution declares that marriage, as an
shall be declared valid.28
they understood the nature and the beneficial and in violable social institution, is the foundation of the family
inconvenient consequences of their marriage, as nothing and shall be protected by the State.32 It must, therefore, be
impaired their ability to do so. That their consent was freely Motives for entering into a marriage are varied and complex. safeguarded from the whims and caprices of the contracting
given is best evidenced by their conscious purpose of The State does not and cannot dictate on the kind of life that parties. This Court cannot leave the impression that
marriage may easily be entered into when it suits the needs DECISION form of "Congressional Pork Barrel" in
of the parties, and just as easily nullified when no longer the Philippines since the utilization of the
needed. funds appropriated therein were
PERLAS-BERNABE, J.:
subjected to post-enactment legislator
approval. Particularly, in the area of fund
WHEREFORE, the petition is GRANTED. The September
"Experience is the oracle of truth."1 release, Section 312 provides that the
29, 2011 Decision of the Court of Appeals in CA-G.R. CV
sums appropriated for certain public
No. 95414 is ANNULLED, and Civil Case No. 1134-06 is
works projects13 "shall be distributed x x
DISMISSED for utter lack of merit. -James Madison x subject to the approval of a joint
committee elected by the Senate and
SO ORDERED. Before the Court are consolidated petitions2 taken under the House of Representatives. "The
Rule 65 of the Rules of Court, all of which assail the committee from each House may also
constitutionality of the Pork Barrel System. Due to the authorize one of its members to approve
G.R. No. 208566 November 19, 2013
complexity of the subject matter, the Court shall heretofore the distribution made by the Secretary of
discuss the system‘s conceptual underpinnings before Commerce and
GRECO ANTONIOUS BEDA B. BELGICA JOSE M. detailing the particulars of the constitutional challenge. Communications."14 Also, in the area of
VILLEGAS JR. JOSE L. GONZALEZ REUBEN M. fund realignment, the same section
ABANTE and QUINTIN PAREDES SAN provides that the said secretary, "with
The Facts the approval of said joint committee, or
DIEGO, Petitioners,
vs. of the authorized members thereof, may,
HONORABLE EXECUTIVE SECRETARY PAQUITO N. I. Pork Barrel: General Concept. for the purposes of said distribution,
OCHOA JR. SECRETARY OF BUDGET AND transfer unexpended portions of any
MANAGEMENT FLORENCIO B. ABAD, NATIONAL item of appropriation under this Act to
TREASURER ROSALIA V. DE LEON SENATE OF THE "Pork Barrel" is political parlance of American - any other item hereunder."
PHILIPPINES represented by FRANKLIN M. DRILON m English origin.3 Historically, its usage may be
his capacity as SENATE PRESIDENT and HOUSE OF traced to the degrading ritual of rolling out a barrel
stuffed with pork to a multitude of black slaves who In 1950, it has been documented15 that
REPRESENTATIVES represented by FELICIANO S.
would cast their famished bodies into the porcine post-enactment legislator participation
BELMONTE, JR. in his capacity as SPEAKER OF THE
feast to assuage their hunger with morsels coming broadened from the areas of fund
HOUSE, Respondents.
from the generosity of their well-fed master.4 This release and realignment to the area of
practice was later compared to the actions of project identification. During that year,
x-----------------------x American legislators in trying to direct federal the mechanics of the public works act
budgets in favor of their districts.5 While the advent was modified to the extent that the
of refrigeration has made the actual pork barrel discretion of choosing projects was
G.R. No. 208493 transferred from the Secretary of
obsolete, it persists in reference to political bills
that "bring home the bacon" to a legislator‘s district Commerce and Communications to
SOCIAL JUSTICE SOCIETY (SJS) PRESIDENT SAMSON and constituents.6 In a more technical sense, "Pork legislators. "For the first time, the law
S. ALCANTARA, Petitioner, Barrel" refers to an appropriation of government carried a list of projects selected by
vs. spending meant for localized projects and secured Members of Congress, they ‘being the
HONORABLE FRANKLIN M. DRILON in his capacity as solely or primarily to bring money to a representatives of the people, either on
SENATE PRESIDENT and HONORABLE FELICIANO S. representative's district.7Some scholars on the their own account or by consultation with
BELMONTE, JR., in his capacity as SPEAKER OF THE subject further use it to refer to legislative control local officials or civil leaders.‘"16 During
HOUSE OF REPRESENTATIVES, Respondents. of local appropriations.8 this period, the pork barrel process
commenced with local government
councils, civil groups, and individuals
x-----------------------x In the Philippines, "Pork Barrel" has been appealing to Congressmen or Senators
commonly referred to as lump-sum, discretionary for projects. Petitions that were
funds of Members of the Legislature,9 although, as accommodated formed part of a
G.R. No. 209251
will be later discussed, its usage would evolve in legislator‘s allocation, and the amount
reference to certain funds of the Executive. each legislator would eventually get is
PEDRITO M. NEPOMUCENO, Former Mayor-Boac, determined in a caucus convened by the
Marinduque Former Provincial Board Member -Province majority. The amount was then
II. History of Congressional Pork Barrel in the Philippines.
of Marinduque, Petitioner, integrated into the administration bill
vs. prepared by the Department of Public
PRESIDENT BENIGNO SIMEON C. AQUINO III* and A. Pre-Martial Law Era (1922-1972). Works and Communications. Thereafter,
SECRETARY FLORENCIO BUTCH ABAD, DEPARTMENT the Senate and the House of
OF BUDGET AND MANAGEMENT, Respondents. Representatives added their own
Act 3044,10 or the Public Works Act of
1922, is considered11 as the earliest provisions to the bill until it was signed
into law by the President – the Public
Works Act.17 In the 1960‘s, however, Million, respectively, for the funding of directed to submit reports to the Senate
pork barrel legislation reportedly ceased development projects in the Mindanao Committee on Finance and the House
in view of the stalemate between the and Visayas areas in 1989. It has been Committee on Appropriations on the
House of Representatives and the documented23 that the clamor raised by releases made from the funds.33
Senate.18 the Senators and the Luzon legislators
for a similar funding, prompted the
Under the 199734 CDF Article, Members
creation of the "Countrywide
B. Martial Law Era (1972-1986). of Congress and the Vice-President, in
Development Fund" (CDF) which was
consultation with the implementing
integrated into the 1990 GAA24 with an
agency concerned, were directed to
While the previous" Congressional Pork initial funding of ₱2.3 Billion to cover
submit to the DBM the list of 50% of
Barrel" was apparently discontinued in "small local infrastructure and other
projects to be funded from their
1972 after Martial Law was declared, an priority community projects."
respective CDF allocations which shall
era when "one man controlled the
be duly endorsed by (a) the Senate
legislature,"19 the reprieve was only
Under the GAAs for the years 1991 and President and the Chairman of the
temporary. By 1982, the Batasang
1992,25 CDF funds were, with the Committee on Finance, in the case of
Pambansa had already introduced a
approval of the President, to be released the Senate, and (b) the Speaker of the
new item in the General Appropriations
directly to the implementing agencies House of Representatives and the
Act (GAA) called the" Support for Local
but "subject to the submission of the Chairman of the Committee on
Development Projects" (SLDP) under
required list of projects and Appropriations, in the case of the House
the article on "National Aid to Local
activities."Although the GAAs from 1990 of Representatives; while the list for the
Government Units". Based on
to 1992 were silent as to the amounts of remaining 50% was to be submitted
reports,20 it was under the SLDP that the
allocations of the individual legislators, within six (6) months thereafter. The
practice of giving lump-sum allocations
as well as their participation in the same article also stated that the project
to individual legislators began, with each
identification of projects, it has been list, which would be published by the
assemblyman receiving ₱500,000.00.
reported26 that by 1992, Representatives DBM,35 "shall be the basis for the
Thereafter, assemblymen would
were receiving ₱12.5 Million each in release of funds" and that "no funds
communicate their project preferences
CDF funds, while Senators were appropriated herein shall be disbursed
to the Ministry of Budget and
receiving ₱18 Million each, without any for projects not included in the list herein
Management for approval. Then, the
limitation or qualification, and that they required."
said ministry would release the
could identify any kind of project, from
allocation papers to the Ministry of Local
hard or infrastructure projects such as
Governments, which would, in turn, The following year, or in 1998,36 the
roads, bridges, and buildings to "soft
issue the checks to the city or municipal foregoing provisions regarding the
projects" such as textbooks, medicines,
treasurers in the assemblyman‘s locality. required lists and endorsements were
and scholarships.27
It has been further reported that reproduced, except that the publication
"Congressional Pork Barrel" projects of the project list was no longer required
under the SLDP also began to cover not D. Fidel Valdez Ramos (Ramos) Administration (1992-1998). as the list itself sufficed for the release
only public works projects, or so- called of CDF Funds.
"hard projects", but also "soft
The following year, or in 1993,28 the
projects",21 or non-public works projects
GAA explicitly stated that the release of The CDF was not, however, the lone
such as those which would fall under the
CDF funds was to be made upon the form of "Congressional Pork Barrel" at
categories of, among others, education,
submission of the list of projects and that time. Other forms of "Congressional
health and livelihood.22
activities identified by, among others, Pork Barrel" were reportedly fashioned
individual legislators. For the first time, and inserted into the GAA (called
C. Post-Martial Law Era: the 1993 CDF Article included an "Congressional Insertions" or "CIs") in
allocation for the Vice-President.29 As order to perpetuate the ad ministration‘s
such, Representatives were allocated political agenda.37 It has been articulated
Corazon Cojuangco Aquino
₱12.5 Million each in CDF funds, that since CIs "formed part and parcel of
Administration (1986-1992).
Senators, ₱18 Million each, and the the budgets of executive departments,
Vice-President, ₱20 Million. they were not easily identifiable and
After the EDSA People Power were thus harder to monitor."
Revolution in 1986 and the restoration of Nonetheless, the lawmakers themselves
In 1994,30 1995,31 and 1996,32 the GAAs
Philippine democracy, "Congressional as well as the finance and budget
contained the same provisions on
Pork Barrel" was revived in the form of officials of the implementing agencies,
project identification and fund release as
the "Mindanao Development Fund" and as well as the DBM, purportedly knew
found in the 1993 CDF Article. In
the "Visayas Development Fund" which about the insertions.38 Examples of
addition, however, the Department of
were created with lump-sum these CIs are the Department of
Budget and Management (DBM) was
appropriations of ₱480 Million and ₱240 Education (DepEd) School Building
Fund, the Congressional Initiative 2003,50 the same single provision was "the amount of at least ₱250 Million of
Allocations, the Public Works Fund, the present, with simply an expansion of the ₱500 Million allotted for the
El Niño Fund, and the Poverty purpose and express authority to construction and completion of school
Alleviation Fund.39 The allocations for realign. Nevertheless, the provisions in buildings shall be made available to
the School Building Fund, particularly, the 2003 budgets of the Department of NGOs including the Federation of
―shall be made upon prior consultation Public Works and Highways51 (DPWH) Filipino-Chinese Chambers of
with the representative of the legislative and the DepEd52 required prior Commerce and Industry, Inc. for its
district concerned.”40 Similarly, the consultation with Members of Congress "Operation Barrio School" program, with
legislators had the power to direct how, on the aspects of implementation capability and proven track records in
where and when these appropriations delegation and project list submission, the construction of public school
were to be spent.41 respectively. In 2004, the 2003 GAA buildings x x x."62 The same allocation
was re-enacted.53 was made available to NGOs in the
2007 and 2009 GAAs under the DepEd
E. Joseph Ejercito Estrada (Estrada) Administration (1998-
Budget.63 Also, it was in 2007 that the
2001). In 2005,54 the PDAF Article provided that
Government Procurement Policy
the PDAF shall be used "to fund priority
Board64 (GPPB) issued Resolution No.
programs and projects under the ten
In 1999,42 the CDF was removed in the 12-2007 dated June 29, 2007 (GPPB
point agenda of the national government
GAA and replaced by three (3) separate Resolution 12-2007), amending the
and shall be released directly to the
forms of CIs, namely, the "Food Security implementing rules and regulations65 of
implementing agencies." It also
Program Fund,"43 the "Lingap Para Sa RA 9184,66 the Government
introduced the program menu
Mahihirap Program Fund,"44and the Procurement Reform Act, to include, as
concept,55 which is essentially a list of
"Rural/Urban Development a form of negotiated procurement,67 the
general programs and implementing
Infrastructure Program Fund,"45 all of procedure whereby the Procuring
agencies from which a particular PDAF
which contained a special provision Entity68(the implementing agency) may
project may be subsequently chosen by
requiring "prior consultation" with the enter into a memorandum of agreement
the identifying authority. The 2005 GAA
Member s of Congress for the release of with an NGO, provided that "an
was re-enacted56 in 2006 and hence,
the funds. appropriation law or ordinance earmarks
operated on the same bases. In similar
an amount to be specifically contracted
regard, the program menu concept was
out to NGOs."69
It was in the year 200046 that the consistently integrated into the
"Priority Development Assistance Fund" 2007,57 2008,58 2009,59 and
(PDAF) appeared in the GAA. The 201060 GAAs. G. Present Administration (2010-Present).
requirement of "prior consultation with
the respective Representative of the
Textually, the PDAF Articles from 2002 Differing from previous PDAF Articles
District" before PDAF funds were
to 2010 were silent with respect to the but similar to the CDF Articles, the
directly released to the implementing
specific amounts allocated for the 201170 PDAF Article included an
agency concerned was explicitly stated
individual legislators, as well as their express statement on lump-sum
in the 2000 PDAF Article. Moreover,
participation in the proposal and amounts allocated for individual
realignment of funds to any expense
identification of PDAF projects to be legislators and the Vice-President:
category was expressly allowed, with
funded. In contrast to the PDAF Articles, Representatives were given ₱70 Million
the sole condition that no amount shall
however, the provisions under the each, broken down into ₱40 Million for
be used to fund personal services and
DepEd School Building Program and the "hard projects" and ₱30 Million for "soft
other personnel benefits.47 The
DPWH budget, similar to its projects"; while ₱200 Million was given
succeeding PDAF provisions remained
predecessors, explicitly required prior to each Senator as well as the Vice-
the same in view of the re-
consultation with the concerned Member President, with a ₱100 Million allocation
enactment48 of the 2000 GAA for the
of Congress61anent certain aspects of each for "hard" and "soft projects."
year 2001.
project implementation. Likewise, a provision on realignment of
funds was included, but with the
F. Gloria Macapagal-Arroyo (Arroyo) Administration (2001- qualification that it may be allowed only
Significantly, it was during this era that
2010). once. The same provision also allowed
provisions which allowed formal
the Secretaries of Education, Health,
participation of non-governmental
Social Welfare and Development,
The 200249 PDAF Article was brief and organizations (NGO) in the
Interior and Local Government,
straightforward as it merely contained a implementation of government projects
Environment and Natural Resources,
single special provision ordering the were introduced. In the Supplemental
Energy, and Public Works and
release of the funds directly to the Budget for 2006, with respect to the
Highways to realign PDAF Funds, with
implementing agency or local appropriation for school buildings, NGOs
the further conditions that: (a)
government unit concerned, without were, by law, encouraged to participate.
realignment is within the same
further qualifications. The following year, For such purpose, the law stated that
implementing unit and same project Malampaya Funds and the Presidential Social Candazo identified were public funds intended for
category as the original project, for Fund. medicines and textbooks. A few days later, the tale
infrastructure projects; (b) allotment of the money trail became the banner story of the
released has not yet been obligated for Philippine Daily Inquirer issue of August 13, 1996,
On the one hand, the Malampaya Funds was
the original scope of work, and (c) the accompanied by an illustration of a roasted
created as a special fund under Section 880 of
request for realignment is with the pig."93 "The publication of the stories, including
Presidential Decree No. (PD) 910,81 issued by then
concurrence of the legislator those about congressional initiative allocations of
President Ferdinand E. Marcos (Marcos) on March
concerned.71 certain lawmakers, including ₱3.6 Billion for a
22, 1976. In enacting the said law, Marcos
Congressman, sparked public outrage."94
recognized the need to set up a special fund to
In the 201272 and 201373 PDAF Articles, help intensify, strengthen, and consolidate
it is stated that the "identification of government efforts relating to the exploration, Thereafter, or in 2004, several concerned citizens
projects and/or designation of exploitation, and development of indigenous sought the nullification of the PDAF as enacted in
beneficiaries shall conform to the priority energy resources vital to economic growth.82 Due the 2004 GAA for being unconstitutional.
list, standard or design prepared by to the energy-related activities of the government Unfortunately, for lack of "any pertinent evidentiary
each implementing agency (priority list in the Malampaya natural gas field in Palawan, or support that illegal misuse of PDAF in the form of
requirement) x x x." However, as the "Malampaya Deep Water Gas-to-Power kickbacks has become a common exercise of
practiced, it would still be the individual Project",83 the special fund created under PD 910 unscrupulous Members of Congress," the petition
legislator who would choose and identify has been currently labeled as Malampaya Funds. was dismissed.95
the project from the said priority list.74
On the other hand the Presidential Social Fund Recently, or in July of the present year, the
Provisions on legislator allocations75 as was created under Section 12, Title IV84 of PD National Bureau of Investigation (NBI) began its
well as fund realignment76 were included 1869,85 or the Charter of the Philippine probe into allegations that "the government has
in the 2012 and 2013 PDAF Articles; but Amusement and Gaming Corporation (PAGCOR). been defrauded of some ₱10 Billion over the past
the allocation for the Vice-President, PD 1869 was similarly issued by Marcos on July 10 years by a syndicate using funds from the pork
which was pegged at ₱200 Million in the 11, 1983. More than two (2) years after, he barrel of lawmakers and various government
2011 GAA, had been deleted. In amended PD 1869 and accordingly issued PD agencies for scores of ghost projects."96 The
addition, the 2013 PDAF Article now 1993 on October 31, 1985,86 amending Section investigation was spawned by sworn affidavits of
allowed LGUs to be identified as 1287 of the former law. As it stands, the six (6) whistle-blowers who declared that JLN
implementing agencies if they have the Presidential Social Fund has been described as a Corporation – "JLN" standing for Janet Lim
technical capability to implement the special funding facility managed and administered Napoles (Napoles) – had swindled billions of
projects.77 Legislators were also allowed by the Presidential Management Staff through pesos from the public coffers for "ghost projects"
to identify programs/projects, except for which the President provides direct assistance to using no fewer than 20 dummy NGOs for an entire
assistance to indigent patients and priority programs and projects not funded under decade. While the NGOs were supposedly the
scholarships, outside of his legislative the regular budget. It is sourced from the share of ultimate recipients of PDAF funds, the whistle-
district provided that he secures the the government in the aggregate gross earnings of blowers declared that the money was diverted into
written concurrence of the legislator of PAGCOR.88 Napoles‘ private accounts.97 Thus, after its
the intended outside-district, endorsed investigation on the Napoles controversy, criminal
by the Speaker of the House.78 Finally, complaints were filed before the Office of the
IV. Controversies in the Philippines.
any realignment of PDAF funds, Ombudsman, charging five (5) lawmakers for
modification and revision of project Plunder, and three (3) other lawmakers for
identification, as well as requests for Over the decades, "pork" funds in the Philippines Malversation, Direct Bribery, and Violation of the
release of funds, were all required to be have increased tremendously,89 owing in no small Anti-Graft and Corrupt Practices Act. Also
favorably endorsed by the House part to previous Presidents who reportedly used recommended to be charged in the complaints are
Committee on Appropriations and the the "Pork Barrel" in order to gain congressional some of the lawmakers‘ chiefs -of-staff or
Senate Committee on Finance, as the support.90 It was in 1996 when the first controversy representatives, the heads and other officials of
case may be.79 surrounding the "Pork Barrel" erupted. Former three (3) implementing agencies, and the several
Marikina City Representative Romeo Candazo presidents of the NGOs set up by Napoles.98
(Candazo), then an anonymous source, "blew the
III. History of Presidential Pork Barrel in the Philippines.
lid on the huge sums of government money that
On August 16, 2013, the Commission on Audit
regularly went into the pockets of legislators in the
(CoA) released the results of a three-year audit
While the term "Pork Barrel" has been typically form of kickbacks."91 He said that "the kickbacks
investigation99covering the use of legislators'
associated with lump-sum, discretionary funds of were ‘SOP‘ (standard operating procedure) among
PDAF from 2007 to 2009, or during the last three
Members of Congress, the present cases and the legislators and ranged from a low 19 percent to a
(3) years of the Arroyo administration. The
recent controversies on the matter have, however, high 52 percent of the cost of each project, which
purpose of the audit was to determine the
shown that the term‘s usage has expanded to could be anything from dredging, rip rapping,
propriety of releases of funds under PDAF and the
include certain funds of the President such as the sphalting, concreting, and construction of school
Various Infrastructures including Local Projects
buildings."92 "Other sources of kickbacks that
(VILP)100 by the DBM, the application of these
funds and the implementation of projects by the ● Selection of the NGOs were not Paredes San Diego (Belgica, et al.), and Jose M. Villegas,
appropriate implementing agencies and several compliant with law and regulations. Jr. (Villegas) filed an Urgent Petition For Certiorari and
government-owned-and-controlled corporations Prohibition With Prayer For The Immediate Issuance of
(GOCCs).101 The total releases covered by the Temporary Restraining Order (TRO) and/or Writ of
● Eighty-Two (82) NGOs entrusted with
audit amounted to ₱8.374 Billion in PDAF and Preliminary Injunction dated August 27, 2013 under Rule 65
implementation of seven hundred
₱32.664 Billion in VILP, representing 58% and of the Rules of Court (Belgica Petition), seeking that the
seventy two (772) projects amount to
32%, respectively, of the total PDAF and VILP annual "Pork Barrel System," presently embodied in the
₱6.156 Billion were either found
releases that were found to have been made provisions of the GAA of 2013 which provided for the 2013
questionable, or submitted
nationwide during the audit period.102 Accordingly, PDAF, and the Executive‘s lump-sum, discretionary funds,
questionable/spurious documents, or
the Co A‘s findings contained in its Report No. such as the Malampaya Funds and the Presidential Social
failed to liquidate in whole or in part their
2012-03 (CoA Report), entitled "Priority Fund,107 be declared unconstitutional and null and void for
utilization of the Funds.
Development Assistance Fund (PDAF) and being acts constituting grave abuse of discretion. Also, they
Various Infrastructures including Local Projects pray that the Court issue a TRO against respondents
(VILP)," were made public, the highlights of which ● Procurement by the NGOs, as well as Paquito N. Ochoa, Jr., Florencio B. Abad (Secretary Abad)
are as follows:103 some implementing agencies, of goods and Rosalia V. De Leon, in their respective capacities as the
and services reportedly used in the incumbent Executive Secretary, Secretary of the Department
projects were not compliant with law. of Budget and Management (DBM), and National Treasurer,
● Amounts released for projects
or their agents, for them to immediately cease any
identified by a considerable number of
expenditure under the aforesaid funds. Further, they pray
legislators significantly exceeded their As for the "Presidential Pork Barrel", whistle-
that the Court order the foregoing respondents to release to
respective allocations. blowers alleged that" at least ₱900 Million from the CoA and to the public: (a) "the complete schedule/list of
royalties in the operation of the Malampaya gas legislators who have availed of their PDAF and VILP from
project off Palawan province intended for agrarian
● Amounts were released for projects the years 2003 to 2013, specifying the use of the funds, the
reform beneficiaries has gone into a dummy project or activity and the recipient entities or individuals, and
outside of legislative districts of
NGO."104 According to incumbent CoA all pertinent data thereto"; and (b) "the use of the Executive‘s
sponsoring members of the Lower
Chairperson Maria Gracia Pulido Tan (CoA
House. lump-sum, discretionary funds, including the proceeds from
Chairperson), the CoA is, as of this writing, in the the x x x Malampaya Funds and remittances from the
process of preparing "one consolidated report" on PAGCOR x x x from 2003 to 2013, specifying the x x x
● Total VILP releases for the period the Malampaya Funds.105 project or activity and the recipient entities or individuals, and
exceeded the total amount appropriated all pertinent data thereto."108 Also, they pray for the "inclusion
under the 2007 to 2009 GAAs. in budgetary deliberations with the Congress of all presently
V. The Procedural Antecedents.
off-budget, lump-sum, discretionary funds including, but not
● Infrastructure projects were limited to, proceeds from the Malampaya Funds and
Spurred in large part by the findings contained in remittances from the PAGCOR."109 The Belgica Petition was
constructed on private lots without these
the CoA Report and the Napoles controversy, docketed as G.R. No. 208566.110
having been turned over to the
several petitions were lodged before the Court
government.
similarly seeking that the "Pork Barrel System" be
declared unconstitutional. To recount, the relevant Lastly, on September 5, 2013, petitioner Pedrito M.
● Significant amounts were released to procedural antecedents in these cases are as Nepomuceno (Nepomuceno), filed a Petition dated August
implementing agencies without the follows: 23, 2012 (Nepomuceno Petition), seeking that the PDAF be
latter‘s endorsement and without declared unconstitutional, and a cease and desist order be
considering their mandated functions, issued restraining President Benigno Simeon S. Aquino III
On August 28, 2013, petitioner Samson S. Alcantara (President Aquino) and Secretary Abad from releasing such
administrative and technical capabilities
(Alcantara), President of the Social Justice Society, filed a funds to Members of Congress and, instead, allow their
to implement projects.
Petition for Prohibition of even date under Rule 65 of the release to fund priority projects identified and approved by
Rules of Court (Alcantara Petition), seeking that the "Pork the Local Development Councils in consultation with the
● Implementation of most livelihood Barrel System" be declared unconstitutional, and a writ of executive departments, such as the DPWH, the Department
projects was not undertaken by the prohibition be issued permanently restraining respondents of Tourism, the Department of Health, the Department of
implementing agencies themselves but Franklin M. Drilon and Feliciano S. Belmonte, Jr., in their Transportation, and Communication and the National
by NGOs endorsed by the proponent respective capacities as the incumbent Senate President Economic Development Authority.111 The Nepomuceno
legislators to which the Funds were and Speaker of the House of Representatives, from further Petition was docketed as UDK-14951.112
transferred. taking any steps to enact legislation appropriating funds for
the "Pork Barrel System," in whatever form and by whatever
name it may be called, and from approving further releases On September 10, 2013, the Court issued a Resolution of
● The funds were transferred to the
pursuant thereto.106 The Alcantara Petition was docketed as even date (a) consolidating all cases; (b) requiring public
NGOs in spite of the absence of any respondents to comment on the consolidated petitions; (c)
G.R. No. 208493.
appropriation law or ordinance. issuing a TRO (September 10, 2013 TRO) enjoining the
DBM, National Treasurer, the Executive Secretary, or any of
On September 3, 2013, petitioners Greco Antonious Beda B. the persons acting under their authority from releasing (1)
Belgica, Jose L. Gonzalez, Reuben M. Abante, Quintin
the remaining PDAF allocated to Members of Congress Whether or not (a) the issues raised in the consolidated question the validity of the subject act or issuance; (c) the
under the GAA of 2013, and (2) Malampaya Funds under the petitions involve an actual and justiciable controversy; (b) the question of constitutionality must be raised at the earliest
phrase "for such other purposes as may be hereafter issues raised in the consolidated petitions are matters of opportunity ; and (d) the issue of constitutionality must be the
directed by the President" pursuant to Section 8 of PD 910 policy not subject to judicial review; (c) petitioners have legal very lis mota of the case.118 Of these requisites, case law
but not for the purpose of "financing energy resource standing to sue; and (d) the Court‘s Decision dated August states that the first two are the most important119and,
development and exploitation programs and projects of the 19, 1994 in G.R. Nos. 113105, 113174, 113766, and therefore, shall be discussed forthwith.
government‖ under the same provision; and (d) setting the 113888, entitled "Philippine Constitution Association v.
consolidated cases for Oral Arguments on October 8, 2013. Enriquez"114 (Philconsa) and Decision dated April 24, 2012 in
A. Existence of an Actual Case or Controversy.
G.R. No. 164987, entitled "Lawyers Against Monopoly and
Poverty v. Secretary of Budget and Management"115 (LAMP)
On September 23, 2013, the Office of the Solicitor General
bar the re-litigatio n of the issue of constitutionality of the By constitutional fiat, judicial power operates only when there
(OSG) filed a Consolidated Comment (Comment) of even
"Pork Barrel System" under the principles of res judicata and is an actual case or controversy.120 This is embodied in
date before the Court, seeking the lifting, or in the
stare decisis. Section 1, Article VIII of the 1987 Constitution which
alternative, the partial lifting with respect to educational and
pertinently states that "judicial power includes the duty of the
medical assistance purposes, of the Court‘s September 10,
courts of justice to settle actual controversies involving rights
2013 TRO, and that the consolidated petitions be dismissed II. Substantive Issues on the "Congressional Pork Barrel."
which are legally demandable and enforceable x x x."
for lack of merit.113
Jurisprudence provides that an actual case or controversy is
Whether or not the 2013 PDAF Article and all other one which "involves a conflict of legal rights, an assertion of
On September 24, 2013, the Court issued a Resolution of Congressional Pork Barrel Laws similar thereto are opposite legal claims, susceptible of judicial resolution as
even date directing petitioners to reply to the Comment. unconstitutional considering that they violate the principles distinguished from a hypothetical or abstract difference or
of/constitutional provisions on (a) separation of powers; (b) dispute.121 In other words, "there must be a contrariety of
non-delegability of legislative power; (c) checks and legal rights that can be interpreted and enforced on the basis
Petitioners, with the exception of Nepomuceno, filed their
balances; (d) accountability; (e) political dynasties; and (f) of existing law and jurisprudence."122 Related to the
respective replies to the Comment: (a) on September 30,
local autonomy. requirement of an actual case or controversy is the
2013, Villegas filed a separate Reply dated September 27,
requirement of "ripeness," meaning that the questions raised
2013 (Villegas Reply); (b) on October 1, 2013, Belgica, et al.
for constitutional scrutiny are already ripe for adjudication. "A
filed a Reply dated September 30, 2013 (Belgica Reply); and III. Substantive Issues on the "Presidential Pork Barrel."
question is ripe for adjudication when the act being
(c) on October 2, 2013, Alcantara filed a Reply dated
challenged has had a direct adverse effect on the individual
October 1, 2013.
Whether or not the phrases (a) "and for such other purposes challenging it. It is a prerequisite that something had then
as may be hereafter directed by the President" under Section been accomplished or performed by either branch before a
On October 1, 2013, the Court issued an Advisory providing 8 of PD 910,116 relating to the Malampaya Funds, and (b) "to court may come into the picture, and the petitioner must
for the guidelines to be observed by the parties for the Oral finance the priority infrastructure development projects and allege the existence of an immediate or threatened injury to
Arguments scheduled on October 8, 2013. In view of the to finance the restoration of damaged or destroyed facilities itself as a result of the challenged action." 123 "Withal, courts
technicality of the issues material to the present cases, due to calamities, as may be directed and authorized by the will decline to pass upon constitutional issues through
incumbent Solicitor General Francis H. Jardeleza (Solicitor Office of the President of the Philippines" under Section 12 advisory opinions, bereft as they are of authority to resolve
General) was directed to bring with him during the Oral of PD 1869, as amended by PD 1993, relating to the hypothetical or moot questions."124
Arguments representative/s from the DBM and Congress Presidential Social Fund, are unconstitutional insofar as they
who would be able to competently and completely answer constitute undue delegations of legislative power.
Based on these principles, the Court finds that there exists
questions related to, among others, the budgeting process
an actual and justiciable controversy in these cases.
and its implementation. Further, the CoA Chairperson was
These main issues shall be resolved in the order that they
appointed as amicus curiae and thereby requested to appear
have been stated. In addition, the Court shall also tackle
before the Court during the Oral Arguments. The requirement of contrariety of legal rights is clearly
certain ancillary issues as prompted by the present cases.
satisfied by the antagonistic positions of the parties on the
constitutionality of the "Pork Barrel System." Also, the
On October 8 and 10, 2013, the Oral Arguments were
The Court’s Ruling questions in these consolidated cases are ripe for
conducted. Thereafter, the Court directed the parties to
adjudication since the challenged funds and the provisions
submit their respective memoranda within a period of seven
allowing for their utilization – such as the 2013 GAA for the
(7) days, or until October 17, 2013, which the parties The petitions are partly granted.
PDAF, PD 910 for the Malampaya Funds and PD 1869, as
subsequently did.
amended by PD 1993, for the Presidential Social Fund – are
I. Procedural Issues. currently existing and operational; hence, there exists an
The Issues Before the Court immediate or threatened injury to petitioners as a result of
the unconstitutional use of these public funds.
The prevailing rule in constitutional litigation is that no
Based on the pleadings, and as refined during the Oral question involving the constitutionality or validity of a law or
Arguments, the following are the main issues for the Court‘s governmental act may be heard and decided by the Court As for the PDAF, the Court must dispel the notion that the
resolution: unless there is compliance with the legal requisites for issues related thereto had been rendered moot and
judicial inquiry,117 namely: (a) there must be an actual case academic by the reforms undertaken by respondents. A case
or controversy calling for the exercise of judicial power; (b) becomes moot when there is no more actual controversy
I. Procedural Issues. between the parties or no useful purpose can be served in
the person challenging the act must have the standing to
passing upon the merits.125 Differing from this description, Solicitor General Jardeleza: No, Your Honor x x x. The COA is endowed with enough latitude to determine,
the Court observes that respondents‘ proposed line-item prevent, and disallow irregular, unnecessary, excessive,
budgeting scheme would not terminate the controversy nor extravagant or unconscionable expenditures of government
xxxx
diminish the useful purpose for its resolution since said funds. It is tasked to be vigilant and conscientious in
reform is geared towards the 2014 budget, and not the 2013 safeguarding the proper use of the government's, and
PDAF Article which, being a distinct subject matter, remains Justice Carpio: So that PDAF can be legally abolished only ultimately the people's, property. The exercise of its general
legally effective and existing. Neither will the President‘s in two (2) cases. Congress passes a law to repeal it, or this audit power is among the constitutional mechanisms that
declaration that he had already "abolished the PDAF" render Court declares it unconstitutional, correct? gives life to the check and balance system inherent in our
the issues on PDAF moot precisely because the Executive form of government.
branch of government has no constitutional authority to
Solictor General Jardeleza: Yes, Your Honor.
nullify or annul its legal existence. By constitutional design,
It is the general policy of the Court to sustain the decisions of
the annulment or nullification of a law may be done either by
administrative authorities, especially one which is
Congress, through the passage of a repealing law, or by the Justice Carpio: The President has no power to legally constitutionally-created, such as the CoA, not only on the
Court, through a declaration of unconstitutionality. Instructive abolish PDAF. (Emphases supplied)
basis of the doctrine of separation of powers but also for
on this point is the following exchange between Associate
their presumed expertise in the laws they are entrusted to
Justice Antonio T. Carpio (Justice Carpio) and the Solicitor
Even on the assumption of mootness, jurisprudence, enforce. Findings of administrative agencies are accorded
General during the Oral Arguments:126
nevertheless, dictates that "the moot and academic‘ principle not only respect but also finality when the decision and order
is not a magical formula that can automatically dissuade the are not tainted with unfairness or arbitrariness that would
Justice Carpio: The President has taken an oath to faithfully Court in resolving a case." The Court will decide cases, amount to grave abuse of discretion. It is only when the CoA
execute the law,127 correct? Solicitor General Jardeleza: Yes, otherwise moot, if: first, there is a grave violation of the has acted without or in excess of jurisdiction, or with grave
Your Honor. Constitution; second, the exceptional character of the abuse of discretion amounting to lack or excess of
situation and the paramount public interest is involved; third, jurisdiction, that this Court entertains a petition questioning
when the constitutional issue raised requires formulation of its rulings. x x x. (Emphases supplied)
Justice Carpio: And so the President cannot refuse to
implement the General Appropriations Act, correct? controlling principles to guide the bench, the bar, and the
public; and fourth, the case is capable of repetition yet Thus, if only for the purpose of validating the existence of an
evading review.129
actual and justiciable controversy in these cases, the Court
Solicitor General Jardeleza: Well, that is our answer, Your
deems the findings under the CoA Report to be sufficient.
Honor. In the case, for example of the PDAF, the President
has a duty to execute the laws but in the face of the outrage The applicability of the first exception is clear from the
fundamental posture of petitioners – they essentially allege
over PDAF, the President was saying, "I am not sure that I The Court also finds the third exception to be applicable
will continue the release of the soft projects," and that grave violations of the Constitution with respect to, inter alia, largely due to the practical need for a definitive ruling on the
started, Your Honor. Now, whether or not that … the principles of separation of powers, non-delegability of system‘s constitutionality. As disclosed during the Oral
(interrupted) legislative power, checks and balances, accountability and Arguments, the CoA Chairperson estimates that thousands
local autonomy. of notices of disallowances will be issued by her office in
connection with the findings made in the CoA Report. In this
Justice Carpio: Yeah. I will grant the President if there are
The applicability of the second exception is also apparent relation, Associate Justice Marvic Mario Victor F. Leonen
anomalies in the project, he has the power to stop the
from the nature of the interests involved (Justice Leonen) pointed out that all of these would
releases in the meantime, to investigate, and that is Section
eventually find their way to the courts.132 Accordingly, there
38 of Chapter 5 of Book 6 of the Revised Administrative
is a compelling need to formulate controlling principles
Code128 x x x. So at most the President can suspend, now if – the constitutionality of the very system within which relative to the issues raised herein in order to guide the
the President believes that the PDAF is unconstitutional, can significant amounts of public funds have been and continue bench, the bar, and the public, not just for the expeditious
he just refuse to implement it? to be utilized and expended undoubtedly presents a situation resolution of the anticipated disallowance cases, but more
of exceptional character as well as a matter of paramount importantly, so that the government may be guided on how
Solicitor General Jardeleza: No, Your Honor, as we were public interest. The present petitions, in fact, have been public funds should be utilized in accordance with
lodged at a time when the system‘s flaws have never before constitutional principles.
trying to say in the specific case of the PDAF because of the
CoA Report, because of the reported irregularities and this been magnified. To the Court‘s mind, the coalescence of the
Court can take judicial notice, even outside, outside of the CoA Report, the accounts of numerous whistle-blowers, and
the government‘s own recognition that reforms are needed Finally, the application of the fourth exception is called for by
COA Report, you have the report of the whistle-blowers, the
"to address the reported abuses of the the recognition that the preparation and passage of the
President was just exercising precisely the duty ….
PDAF"130 demonstrates a prima facie pattern of abuse which national budget is, by constitutional imprimatur, an affair of
only underscores the importance of the matter. It is also by annual occurrence.133 The relevance of the issues before the
xxxx this finding that the Court finds petitioners‘ claims as not Court does not cease with the passage of a "PDAF -free
merely theorized, speculative or hypothetical. Of note is the budget for 2014."134 The evolution of the "Pork Barrel
weight accorded by the Court to the findings made by the System," by its multifarious iterations throughout the course
Justice Carpio: Yes, and that is correct. You‘ve seen the of history, lends a semblance of truth to petitioners‘ claim
CoA which is the constitutionally-mandated audit arm of the
CoA Report, there are anomalies, you stop and investigate,
government. In Delos Santos v. CoA,131 a recent case that "the same dog will just resurface wearing a different
and prosecute, he has done that. But, does that mean that
wherein the Court upheld the CoA‘s disallowance of collar."135 In Sanlakas v. Executive Secretary,136 the
PDAF has been repealed? government had already backtracked on a previous course
irregularly disbursed PDAF funds, it was emphasized that:
of action yet the Court used the "capable of repetition but excess of jurisdiction on the part of any branch or they "dutifully contribute to the coffers of the National
evading review" exception in order "to prevent similar instrumentality of the Government." In Estrada v. Treasury."146 Clearly, as taxpayers, they possess the
questions from re- emerging."137 The situation similarly holds Desierto,142 the expanded concept of judicial power under requisite standing to question the validity of the existing
true to these cases. Indeed, the myriad of issues underlying the 1987 Constitution and its effect on the political question "Pork Barrel System" under which the taxes they pay have
the manner in which certain public funds are spent, if not doctrine was explained as follows:143 been and continue to be utilized. It is undeniable that
resolved at this most opportune time, are capable of petitioners, as taxpayers, are bound to suffer from the
repetition and hence, must not evade judicial review. unconstitutional usage of public funds, if the Court so rules.
To a great degree, the 1987 Constitution has narrowed the
Invariably, taxpayers have been allowed to sue where there
reach of the political question doctrine when it expanded the
is a claim that public funds are illegally disbursed or that
B. Matters of Policy: the Political Question Doctrine. power of judicial review of this court not only to settle actual
public money is being deflected to any improper purpose, or
controversies involving rights which are legally demandable
that public funds are wasted through the enforcement of an
and enforceable but also to determine whether or not there
The "limitation on the power of judicial review to actual cases invalid or unconstitutional law,147 as in these cases.
has been a grave abuse of discretion amounting to lack or
and controversies‖ carries the assurance that "the courts will
excess of jurisdiction on the part of any branch or
not intrude into areas committed to the other branches of
instrumentality of government. Heretofore, the judiciary has Moreover, as citizens, petitioners have equally fulfilled the
government."138 Essentially, the foregoing limitation is a
focused on the "thou shalt not's" of the Constitution directed standing requirement given that the issues they have raised
restatement of the political question doctrine which, under
against the exercise of its jurisdiction. With the new may be classified as matters "of transcendental importance,
the classic formulation of Baker v. Carr,139applies when there
provision, however, courts are given a greater prerogative to of overreaching significance to society, or of paramount
is found, among others, "a textually demonstrable
determine what it can do to prevent grave abuse of public interest."148 The CoA Chairperson‘s statement during
constitutional commitment of the issue to a coordinate
discretion amounting to lack or excess of jurisdiction on the the Oral Arguments that the present controversy involves
political department," "a lack of judicially discoverable and
part of any branch or instrumentality of government. Clearly, "not merely a systems failure" but a "complete breakdown of
manageable standards for resolving it" or "the impossibility of
the new provision did not just grant the Court power of doing controls"149 amplifies, in addition to the matters above-
deciding without an initial policy determination of a kind
nothing. x x x (Emphases supplied) discussed, the seriousness of the issues involved herein.
clearly for non- judicial discretion." Cast against this light,
Indeed, of greater import than the damage caused by the
respondents submit that the "the political branches are in the
illegal expenditure of public funds is the mortal wound
best position not only to perform budget-related reforms but It must also be borne in mind that ― when the judiciary
inflicted upon the fundamental law by the enforcement of an
also to do them in response to the specific demands of their mediates to allocate constitutional boundaries, it does not
invalid statute.150 All told, petitioners have sufficient locus
constituents" and, as such, "urge the Court not to impose a assert any superiority over the other departments; does not
standi to file the instant cases.
solution at this stage."140 in reality nullify or invalidate an act of the legislature or the
executive, but only asserts the solemn and sacred obligation
assigned to it by the Constitution."144 To a great extent, the D. Res Judicata and Stare Decisis.
The Court must deny respondents‘ submission.
Court is laudably cognizant of the reforms undertaken by its
co-equal branches of government. But it is by constitutional
Res judicata (which means a "matter adjudged") and stare
Suffice it to state that the issues raised before the Court do force that the Court must faithfully perform its duty.
decisis non quieta et movere (or simply, stare decisis which
not present political but legal questions which are within its Ultimately, it is the Court‘s avowed intention that a resolution
means "follow past precedents and do not disturb what has
province to resolve. A political question refers to "those of these cases would not arrest or in any manner impede the
been settled") are general procedural law principles which
questions which, under the Constitution, are to be decided endeavors of the two other branches but, in fact, help ensure
both deal with the effects of previous but factually similar
by the people in their sovereign capacity, or in regard to that the pillars of change are erected on firm constitutional
dispositions to subsequent cases. For the cases at bar, the
which full discretionary authority has been delegated to the grounds. After all, it is in the best interest of the people that
Court examines the applicability of these principles in
Legislature or executive branch of the Government. It is each great branch of government, within its own sphere,
relation to its prior rulings in Philconsa and LAMP.
concerned with issues dependent upon the wisdom, not contributes its share towards achieving a holistic and
legality, of a particular measure."141 The intrinsic genuine solution to the problems of society. For all these
constitutionality of the "Pork Barrel System" is not an issue reasons, the Court cannot heed respondents‘ plea for judicial The focal point of res judicata is the judgment. The principle
dependent upon the wisdom of the political branches of restraint. states that a judgment on the merits in a previous case
government but rather a legal one which the Constitution rendered by a court of competent jurisdiction would bind a
itself has commanded the Court to act upon. Scrutinizing the subsequent case if, between the first and second actions,
C. Locus Standi.
contours of the system along constitutional lines is a task there exists an identity of parties, of subject matter, and of
that the political branches of government are incapable of causes of action.151 This required identity is not, however,
rendering precisely because it is an exercise of judicial "The gist of the question of standing is whether a party attendant hereto since Philconsa and LAMP, respectively
power. More importantly, the present Constitution has not alleges such personal stake in the outcome of the involved constitutional challenges against the 1994 CDF
only vested the Judiciary the right to exercise judicial power controversy as to assure that concrete adverseness which Article and 2004 PDAF Article, whereas the cases at bar call
but essentially makes it a duty to proceed therewith. Section sharpens the presentation of issues upon which the court for a broader constitutional scrutiny of the entire "Pork Barrel
1, Article VIII of the 1987 Constitution cannot be any clearer: depends for illumination of difficult constitutional questions. System." Also, the ruling in LAMP is essentially a dismissal
"The judicial power shall be vested in one Supreme Court Unless a person is injuriously affected in any of his based on a procedural technicality – and, thus, hardly a
and in such lower courts as may be established by law. It constitutional rights by the operation of statute or ordinance, judgment on the merits – in that petitioners therein failed to
includes the duty of the courts of justice to settle actual he has no standing."145 present any "convincing proof x x x showing that, indeed,
controversies involving rights which are legally demandable there were direct releases of funds to the Members of
and enforceable, and to determine whether or not there has Congress, who actually spend them according to their sole
Petitioners have come before the Court in their respective
been a grave abuse of discretion amounting to lack or discretion" or "pertinent evidentiary support to demonstrate
capacities as citizen-taxpayers and accordingly, assert that
the illegal misuse of PDAF in the form of kickbacks and has reason against a wholesale application of the stare decisis System," "Congressional Pork Barrel," and "Presidential Pork
become a common exercise of unscrupulous Members of principle. Barrel" as they are essential to the ensuing discourse.
Congress." As such, the Court up held, in view of the
presumption of constitutionality accorded to every law, the
In addition, the Court observes that the Philconsa ruling was Petitioners define the term "Pork Barrel System" as the
2004 PDAF Article, and saw "no need to review or reverse
actually riddled with inherent constitutional inconsistencies "collusion between the Legislative and Executive branches of
the standing pronouncements in the said case." Hence, for
which similarly countervail against a full resort to stare government to accumulate lump-sum public funds in their
the foregoing reasons, the res judicata principle, insofar as
decisis. As may be deduced from the main conclusions of offices with unchecked discretionary powers to determine its
the Philconsa and LAMP cases are concerned, cannot apply.
the case, Philconsa‘s fundamental premise in allowing distribution as political largesse."156 They assert that the
Members of Congress to propose and identify of projects following elements make up the Pork Barrel System: (a)
On the other hand, the focal point of stare decisis is the would be that the said identification authority is but an aspect lump-sum funds are allocated through the appropriations
doctrine created. The principle, entrenched under Article of the power of appropriation which has been constitutionally process to an individual officer; (b) the officer is given sole
8152 of the Civil Code, evokes the general rule that, for the lodged in Congress. From this premise, the contradictions and broad discretion in determining how the funds will be
sake of certainty, a conclusion reached in one case should may be easily seen. If the authority to identify projects is an used or expended; (c) the guidelines on how to spend or use
be doctrinally applied to those that follow if the facts are aspect of appropriation and the power of appropriation is a the funds in the appropriation are either vague, overbroad or
substantially the same, even though the parties may be form of legislative power thereby lodged in Congress, then it inexistent; and (d) projects funded are intended to benefit a
different. It proceeds from the first principle of justice that, follows that: (a) it is Congress which should exercise such definite constituency in a particular part of the country and to
absent any powerful countervailing considerations, like authority, and not its individual Members; (b) such authority help the political careers of the disbursing official by yielding
cases ought to be decided alike. Thus, where the same must be exercised within the prescribed procedure of law rich patronage benefits.157 They further state that the Pork
questions relating to the same event have been put forward passage and, hence, should not be exercised after the GAA Barrel System is comprised of two (2) kinds of discretionary
by the parties similarly situated as in a previous case has already been passed; and (c) such authority, as public funds: first, the Congressional (or Legislative) Pork
litigated and decided by a competent court, the rule of stare embodied in the GAA, has the force of law and, hence, Barrel, currently known as the PDAF; 158 and, second, the
decisis is a bar to any attempt to re-litigate the same cannot be merely recommendatory. Justice Vitug‘s Presidential (or Executive) Pork Barrel, specifically, the
issue.153 Concurring Opinion in the same case sums up the Philconsa Malampaya Funds under PD 910 and the Presidential Social
quandary in this wise: "Neither would it be objectionable for Fund under PD 1869, as amended by PD 1993.159
Congress, by law, to appropriate funds for such specific
Philconsa was the first case where a constitutional challenge
projects as it may be minded; to give that authority, however,
against a Pork Barrel provision, i.e., the 1994 CDF Article, Considering petitioners‘ submission and in reference to its
to the individual members of Congress in whatever guise, I
was resolved by the Court. To properly understand its local concept and legal history, the Court defines the Pork
am afraid, would be constitutionally impermissible." As the
context, petitioners‘ posturing was that "the power given to Barrel System as the collective body of rules and practices
Court now largely benefits from hindsight and current
the Members of Congress to propose and identify projects that govern the manner by which lump-sum, discretionary
findings on the matter, among others, the CoA Report, the
and activities to be funded by the CDF is an encroachment funds, primarily intended for local projects, are utilized
Court must partially abandon its previous ruling in Philconsa
by the legislature on executive power, since said power in an through the respective participations of the Legislative and
insofar as it validated the post-enactment identification
appropriation act is in implementation of the law" and that Executive branches of government, including its members.
authority of Members of Congress on the guise that the
"the proposal and identification of the projects do not involve The Pork Barrel System involves two (2) kinds of lump-sum
same was merely recommendatory. This postulate raises
the making of laws or the repeal and amendment thereof, the discretionary funds:
serious constitutional inconsistencies which cannot be simply
only function given to the Congress by the Constitution."154 In
excused on the ground that such mechanism is "imaginative
deference to the foregoing submissions, the Court reached
as it is innovative." Moreover, it must be pointed out that the First, there is the Congressional Pork Barrel which is herein
the following main conclusions: one, under the Constitution,
recent case of Abakada Guro Party List v. defined as a kind of lump-sum, discretionary fund wherein
the power of appropriation, or the "power of the purse,"
Purisima155(Abakada) has effectively overturned Philconsa‘s legislators, either individually or collectively organized into
belongs to Congress; two, the power of appropriation carries
allowance of post-enactment legislator participation in view committees, are able to effectively control certain aspects of
with it the power to specify the project or activity to be funded
of the separation of powers principle. These constitutional the fund’s utilization through various post-enactment
under the appropriation law and it can be detailed and as
inconsistencies and the Abakada rule will be discussed in measures and/or practices. In particular, petitioners consider
broad as Congress wants it to be; and, three, the proposals
greater detail in the ensuing section of this Decision. the PDAF, as it appears under the 2013 GAA, as
and identifications made by Members of Congress are
Congressional Pork Barrel since it is, inter alia, a post-
merely recommendatory. At once, it is apparent that the
enactment measure that allows individual legislators to wield
Philconsa resolution was a limited response to a separation As for LAMP, suffice it to restate that the said case was
a collective power;160 and
of powers problem, specifically on the propriety of conferring dismissed on a procedural technicality and, hence, has not
post-enactment identification authority to Members of set any controlling doctrine susceptible of current application
Congress. On the contrary, the present cases call for a more to the substantive issues in these cases. In fine, stare decisis Second, there is the Presidential Pork Barrel which is herein
holistic examination of (a) the inter-relation between the CDF would not apply. defined as a kind of lump-sum, discretionary fund which
and PDAF Articles with each other, formative as they are of allows the President to determine the manner of its
the entire "Pork Barrel System" as well as (b) the intra- utilization. For reasons earlier stated,161 the Court shall
II. Substantive Issues.
relation of post-enactment measures contained within a delimit the use of such term to refer only to the Malampaya
particular CDF or PDAF Article, including not only those Funds and the Presidential Social Fund.
related to the area of project identification but also to the A. Definition of Terms.
areas of fund release and realignment. The complexity of the
issues and the broader legal analyses herein warranted may With these definitions in mind, the Court shall now proceed
be, therefore, considered as a powerful countervailing Before the Court proceeds to resolve the substantive issues to discuss the substantive issues of these cases.
of these cases, it must first define the terms "Pork Barrel
B. Substantive Issues on the Congressional Pork Barrel. Carague173 (Guingona, Jr.), the Court explained that the (1) scrutiny based primarily on Congress‘ power of
phase of budget execution "covers the various operational appropriation and the budget hearings conducted
aspects of budgeting" and accordingly includes "the in connection with it, its power to ask heads of
1. Separation of Powers.
evaluation of work and financial plans for individual departments to appear before and be heard by
activities," the "regulation and release of funds" as well as all either of its Houses on any matter pertaining to
a. Statement of Principle. "other related activities" that comprise the budget execution their departments and its power of confirmation;
cycle.174 This is rooted in the principle that the allocation of and
power in the three principal branches of government is a
The principle of separation of powers refers to the grant of all powers inherent in them.175 Thus, unless the
constitutional demarcation of the three fundamental powers (2) investigation and monitoring of the
Constitution provides otherwise, the Executive department
of government. In the celebrated words of Justice Laurel in implementation of laws pursuant to the power of
should exclusively exercise all roles and prerogatives which
Angara v. Electoral Commission,162 it means that the go into the implementation of the national budget as
Congress to conduct inquiries in aid of legislation.
"Constitution has blocked out with deft strokes and in bold provided under the GAA as well as any other appropriation
lines, allotment of power to the executive, the legislative and
law. Any action or step beyond that will undermine the separation
the judicial departments of the government."163 To the
of powers guaranteed by the Constitution. (Emphases
legislative branch of government, through
supplied)
Congress,164belongs the power to make laws; to the In view of the foregoing, the Legislative branch of
executive branch of government, through the government, much more any of its members, should not
President,165 belongs the power to enforce laws; and to the cross over the field of implementing the national budget b. Application.
judicial branch of government, through the Court,166 belongs since, as earlier stated, the same is properly the domain of
the power to interpret laws. Because the three great powers the Executive. Again, in Guingona, Jr., the Court stated that
"Congress enters the picture when it deliberates or acts on In these cases, petitioners submit that the Congressional
have been, by constitutional design, ordained in this respect,
the budget proposals of the President. Thereafter, Congress, Pork Barrel – among others, the 2013 PDAF Article –
"each department of the government has exclusive
"wrecks the assignment of responsibilities between the
cognizance of matters within its jurisdiction, and is supreme "in the exercise of its own judgment and wisdom, formulates
political branches" as it is designed to allow individual
within its own sphere."167 Thus, "the legislature has no an appropriation act precisely following the process
established by the Constitution, which specifies that no legislators to interfere "way past the time it should have
authority to execute or construe the law, the executive has
ceased" or, particularly, "after the GAA is passed." 179 They
no authority to make or construe the law, and the judiciary money may be paid from the Treasury except in accordance
state that the findings and recommendations in the CoA
has no power to make or execute the law."168 The principle of with an appropriation made by law." Upon approval and
passage of the GAA, Congress‘ law -making role necessarily Report provide "an illustration of how absolute and definitive
separation of powers and its concepts of autonomy and
comes to an end and from there the Executive‘s role of the power of legislators wield over project implementation in
independence stem from the notion that the powers of
implementing the national budget begins. So as not to blur complete violation of the constitutional principle of separation
government must be divided to avoid concentration of these
the constitutional boundaries between them, Congress must of powers."180 Further, they point out that the Court in the
powers in any one branch; the division, it is hoped, would
"not concern it self with details for implementation by the Philconsa case only allowed the CDF to exist on the
avoid any single branch from lording its power over the other
Executive."176 condition that individual legislators limited their role to
branches or the citizenry.169 To achieve this purpose, the
recommending projects and not if they actually dictate their
divided power must be wielded by co-equal branches of
implementation.181
government that are equally capable of independent action
The foregoing cardinal postulates were definitively
in exercising their respective mandates. Lack of
enunciated in Abakada where the Court held that "from the
independence would result in the inability of one branch of For their part, respondents counter that the separations of
moment the law becomes effective, any provision of law that
government to check the arbitrary or self-interest assertions powers principle has not been violated since the President
empowers Congress or any of its members to play any role
of another or others.170 maintains "ultimate authority to control the execution of the
in the implementation or enforcement of the law violates the
GAA‖ and that he "retains the final discretion to reject" the
principle of separation of powers and is thus
unconstitutional."177 It must be clarified, however, that since legislators‘ proposals.182 They maintain that the Court, in
Broadly speaking, there is a violation of the separation of
the restriction only pertains to "any role in the implementation Philconsa, "upheld the constitutionality of the power of
powers principle when one branch of government unduly
members of Congress to propose and identify projects so
encroaches on the domain of another. US Supreme Court or enforcement of the law," Congress may still exercise its
oversight function which is a mechanism of checks and long as such proposal and identification are
decisions instruct that the principle of separation of powers
balances that the Constitution itself allows. But it must be recommendatory."183 As such, they claim that "everything in
may be violated in two (2) ways: firstly, "one branch may
the Special Provisions [of the 2013 PDAF Article follows the
interfere impermissibly with the other’s performance of its made clear that Congress‘ role must be confined to mere
Philconsa framework, and hence, remains constitutional."184
constitutionally assigned function";171 and "alternatively, the oversight. Any post-enactment-measure allowing legislator
doctrine may be violated when one branch assumes a participation beyond oversight is bereft of any constitutional
function that more properly is entrusted to another."172 In basis and hence, tantamount to impermissible interference The Court rules in favor of petitioners.
other words, there is a violation of the principle when there is and/or assumption of executive functions. As the Court ruled
impermissible (a) interference with and/or (b) assumption of in Abakada:178
another department‘s functions. As may be observed from its legal history, the defining
feature of all forms of Congressional Pork Barrel would be
Any post-enactment congressional measure x x x should be the authority of legislators to participate in the post-
The enforcement of the national budget, as primarily limited to scrutiny and investigation.1âwphi1 In particular, enactment phases of project implementation.
contained in the GAA, is indisputably a function both congressional oversight must be confined to the following:
constitutionally assigned and properly entrusted to the
Executive branch of government. In Guingona, Jr. v. Hon.
At its core, legislators – may it be through project this Fund, subject to among others (iii) the request is with the Solicitor General Jardeleza: Yes, Your Honor.
lists,185 prior consultations186 or program menus187 – have concurrence of the legislator concerned."
been consistently accorded post-enactment authority to
xxxx
identify the projects they desire to be funded through various
Clearly, these post-enactment measures which govern the
Congressional Pork Barrel allocations. Under the 2013
areas of project identification, fund release and fund
PDAF Article, the statutory authority of legislators to identify Justice Bernabe: In short, the act of identification is
realignment are not related to functions of congressional
projects post-GAA may be construed from the import of mandatory?
oversight and, hence, allow legislators to intervene and/or
Special Provisions 1 to 3 as well as the second paragraph of
assume duties that properly belong to the sphere of budget
Special Provision 4. To elucidate, Special Provision 1
execution. Indeed, by virtue of the foregoing, legislators have Solictor General Jardeleza: Yes, Your Honor. In the sense
embodies the program menu feature which, as evinced from
been, in one form or another, authorized to participate in – that if it is not done and then there is no identification.
past PDAF Articles, allows individual legislators to identify
as Guingona, Jr. puts it – "the various operational aspects of
PDAF projects for as long as the identified project falls under
budgeting," including "the evaluation of work and financial
a general program listed in the said menu. Relatedly, Special xxxx
plans for individual activities" and the "regulation and release
Provision 2 provides that the implementing agencies shall,
of funds" in violation of the separation of powers principle.
within 90 days from the GAA is passed, submit to Congress
The fundamental rule, as categorically articulated in Justice Bernabe: Now, would you know of specific instances
a more detailed priority list, standard or design prepared and
Abakada, cannot be overstated – from the moment the law when a project was implemented without the identification by
submitted by implementing agencies from which the
becomes effective, any provision of law that empowers the individual legislator?
legislator may make his choice. The same provision further
Congress or any of its members to play any role in the
authorizes legislators to identify PDAF projects outside his
implementation or enforcement of the law violates the
district for as long as the representative of the district Solicitor General Jardeleza: I do not know, Your Honor; I do
principle of separation of powers and is thus
concerned concurs in writing. Meanwhile, Special Provision not think so but I have no specific examples. I would doubt
unconstitutional.191 That the said authority is treated as
3 clarifies that PDAF projects refer to "projects to be very much, Your Honor, because to implement, there is a
merely recommendatory in nature does not alter its
identified by legislators"188 and thereunder provides the need for a SARO and the NCA. And the SARO and the NCA
unconstitutional tenor since the prohibition, to repeat, covers
allocation limit for the total amount of projects identified by are triggered by an identification from the legislator.
any role in the implementation or enforcement of the law.
each legislator. Finally, paragraph 2 of Special Provision 4
Towards this end, the Court must therefore abandon its
requires that any modification and revision of the project
ruling in Philconsa which sanctioned the conduct of legislator xxxx
identification "shall be submitted to the House Committee on
identification on the guise that the same is merely
Appropriations and the Senate Committee on Finance for
recommendatory and, as such, respondents‘ reliance on the
favorable endorsement to the DBM or the implementing Solictor General Jardeleza: What we mean by mandatory,
same falters altogether.
agency, as the case may be." From the foregoing special Your Honor, is we were replying to a question, "How can a
provisions, it cannot be seriously doubted that legislators legislator make sure that he is able to get PDAF Funds?" It is
have been accorded post-enactment authority to identify Besides, it must be pointed out that respondents have mandatory in the sense that he must identify, in that sense,
PDAF projects. nonetheless failed to substantiate their position that the Your Honor. Otherwise, if he does not identify, he cannot
identification authority of legislators is only of avail of the PDAF Funds and his district would not be able to
recommendatory import. Quite the contrary, respondents – have PDAF Funds, only in that sense, Your Honor.
Aside from the area of project identification, legislators have
through the statements of the Solicitor General during the (Emphases supplied)
also been accorded post-enactment authority in the areas of
Oral Arguments – have admitted that the identification of the
fund release and realignment. Under the 2013 PDAF Article,
legislator constitutes a mandatory requirement before his
the statutory authority of legislators to participate in the area Thus, for all the foregoing reasons, the Court hereby
PDAF can be tapped as a funding source, thereby
of fund release through congressional committees is declares the 2013 PDAF Article as well as all other
highlighting the indispensability of the said act to the entire
contained in Special Provision 5 which explicitly states that provisions of law which similarly allow legislators to wield any
budget execution process:192
"all request for release of funds shall be supported by the form of post-enactment authority in the implementation or
documents prescribed under Special Provision No. 1 and enforcement of the budget, unrelated to congressional
favorably endorsed by House Committee on Appropriations Justice Bernabe: Now, without the individual legislator’s oversight, as violative of the separation of powers principle
and the Senate Committee on Finance, as the case may be"; identification of the project, can the PDAF of the legislator be and thus unconstitutional. Corollary thereto, informal
while their statutory authority to participate in the area of utilized? practices, through which legislators have effectively intruded
fund realignment is contained in: first , paragraph 2, Special into the proper phases of budget execution, must be deemed
Provision 4189 which explicitly state s, among others, that as acts of grave abuse of discretion amounting to lack or
"any realignment of funds shall be submitted to the House Solicitor General Jardeleza: No, Your Honor.
excess of jurisdiction and, hence, accorded the same
Committee on Appropriations and the Senate Committee on unconstitutional treatment. That such informal practices do
Finance for favorable endorsement to the DBM or the Justice Bernabe: It cannot? exist and have, in fact, been constantly observed throughout
implementing agency, as the case may be‖ ; and, second , the years has not been substantially disputed here. As
paragraph 1, also of Special Provision 4 which authorizes pointed out by Chief Justice Maria Lourdes P.A. Sereno
the "Secretaries of Agriculture, Education, Energy, Interior Solicitor General Jardeleza: It cannot… (interrupted)
(Chief Justice Sereno) during the Oral Arguments of these
and Local Government, Labor and Employment, Public cases:193
Works and Highways, Social Welfare and Development and Justice Bernabe: So meaning you should have the Chief Justice Sereno:
Trade and Industry190 x x x to approve realignment from one identification of the project by the individual legislator?
project/scope to another within the allotment received from
Now, from the responses of the representative of both, the rule-making) or ascertaining facts to bring the law into actual similar legislative identification feature as herein discussed,
DBM and two (2) Houses of Congress, if we enforces the operation (contingent rule-making).199The conceptual as unconstitutional.
initial thought that I have, after I had seen the extent of this treatment and limitations of delegated rule-making were
research made by my staff, that neither the Executive nor explained in the case of People v. Maceren200 as follows:
3. Checks and Balances.
Congress frontally faced the question of constitutional
compatibility of how they were engineering the budget
The grant of the rule-making power to administrative
process. In fact, the words you have been using, as the three a. Statement of Principle; Item-Veto Power.
agencies is a relaxation of the principle of separation of
lawyers of the DBM, and both Houses of Congress has also
powers and is an exception to the nondelegation of
been using is surprise; surprised that all of these things are
legislative powers. Administrative regulations or "subordinate The fact that the three great powers of government are
now surfacing. In fact, I thought that what the 2013 PDAF
legislation" calculated to promote the public interest are intended to be kept separate and distinct does not mean that
provisions did was to codify in one section all the past
necessary because of "the growing complexity of modern they are absolutely unrestrained and independent of each
practice that had been done since 1991. In a certain sense,
life, the multiplication of the subjects of governmental other. The Constitution has also provided for an elaborate
we should be thankful that they are all now in the PDAF
regulations, and the increased difficulty of administering the system of checks and balances to secure coordination in the
Special Provisions. x x x (Emphasis and underscoring
supplied)
law." workings of the various departments of the government.203

xxxx A prime example of a constitutional check and balance


Ultimately, legislators cannot exercise powers which they do
not have, whether through formal measures written into the would be the President’s power to veto an item written into
law or informal practices institutionalized in government an appropriation, revenue or tariff bill submitted to him by
Nevertheless, it must be emphasized that the rule-making
Congress for approval through a process known as "bill
agencies, else the Executive department be deprived of what power must be confined to details for regulating the mode or
the Constitution has vested as its own. presentment." The President‘s item-veto power is found in
proceeding to carry into effect the law as it has been
Section 27(2), Article VI of the 1987 Constitution which reads
enacted. The power cannot be extended to amending or
as follows:
expanding the statutory requirements or to embrace matters
2. Non-delegability of Legislative Power.
not covered by the statute. Rules that subvert the statute
cannot be sanctioned. (Emphases supplied) Sec. 27. x x x.
a. Statement of Principle.
b. Application. xxxx
As an adjunct to the separation of powers
principle,194 legislative power shall be exclusively exercised
In the cases at bar, the Court observes that the 2013 PDAF (2) The President shall have the power to veto any particular
by the body to which the Constitution has conferred the
Article, insofar as it confers post-enactment identification item or items in an appropriation, revenue, or tariff bill, but
same. In particular, Section 1, Article VI of the 1987
authority to individual legislators, violates the principle of the veto shall not affect the item or items to which he does
Constitution states that such power shall be vested in the
non-delegability since said legislators are effectively allowed not object.
Congress of the Philippines which shall consist of a Senate
to individually exercise the power of appropriation, which –
and a House of Representatives, except to the extent
as settled in Philconsa – is lodged in Congress.201 That the
reserved to the people by the provision on initiative and The presentment of appropriation, revenue or tariff bills to
power to appropriate must be exercised only through
referendum.195 Based on this provision, it is clear that only the President, wherein he may exercise his power of item-
legislation is clear from Section 29(1), Article VI of the 1987
Congress, acting as a bicameral body, and the people, veto, forms part of the "single, finely wrought and
Constitution which states that: "No money shall be paid out
through the process of initiative and referendum, may exhaustively considered, procedures" for law-passage as
of the Treasury except in pursuance of an appropriation
constitutionally wield legislative power and no other. This specified under the Constitution.204 As stated in Abakada, the
made by law." To understand what constitutes an act of
premise embodies the principle of non-delegability of final step in the law-making process is the "submission of the
appropriation, the Court, in Bengzon v. Secretary of Justice
legislative power, and the only recognized exceptions thereto bill to the President for approval. Once approved, it takes
and Insular Auditor202 (Bengzon), held that the power of
would be: (a) delegated legislative power to local effect as law after the required publication."205
appropriation involves (a) the setting apart by law of a certain
governments which, by immemorial practice, are allowed to
sum from the public revenue for (b) a specified purpose.
legislate on purely local matters;196 and (b) constitutionally-
grafted exceptions such as the authority of the President to,
Essentially, under the 2013 PDAF Article, individual Elaborating on the President‘s item-veto power and its
legislators are given a personal lump-sum fund from which relevance as a check on the legislature, the Court, in
by law, exercise powers necessary and proper to carry out a
they are able to dictate (a) how much from such fund would Bengzon, explained that:206
declared national policy in times of war or other national
go to (b) a specific project or beneficiary that they
emergency,197or fix within specified limits, and subject to
themselves also determine. As these two (2) acts comprise
such limitations and restrictions as Congress may impose, The former Organic Act and the present Constitution of the
the exercise of the power of appropriation as described in
tariff rates, import and export quotas, tonnage and wharfage Philippines make the Chief Executive an integral part of the
Bengzon, and given that the 2013 PDAF Article authorizes
dues, and other duties or imposts within the framework of the law-making power. His disapproval of a bill, commonly
individual legislators to perform the same, undoubtedly, said
national development program of the Government.198 known as a veto, is essentially a legislative act. The
legislators have been conferred the power to legislate which
the Constitution does not, however, allow. Thus, keeping questions presented to the mind of the Chief Executive are
Notably, the principle of non-delegability should not be with the principle of non-delegability of legislative power, the precisely the same as those the legislature must determine
confused as a restriction to delegate rule-making authority to Court hereby declares the 2013 PDAF Article, as well as all in passing a bill, except that his will be a broader point of
implementing agencies for the limited purpose of either filling other forms of Congressional Pork Barrel which contain the view.
up the details of the law for its enforcement (supplementary
The Constitution is a limitation upon the power of the appropriation of money" but also ensures that the President b. Application.
legislative department of the government, but in this respect may discernibly veto the same. Based on the foregoing
it is a grant of power to the executive department. The formulation, the existing Calamity Fund, Contingent Fund
In these cases, petitioners claim that "in the current x x x
Legislature has the affirmative power to enact laws; the Chief and the Intelligence Fund, being appropriations which state a
system where the PDAF is a lump-sum appropriation, the
Executive has the negative power by the constitutional specified amount for a specific purpose, would then be
legislator‘s identification of the projects after the passage of
exercise of which he may defeat the will of the Legislature. It considered as "line- item" appropriations which are rightfully
the GAA denies the President the chance to veto that item
follows that the Chief Executive must find his authority in the subject to item veto. Likewise, it must be observed that an
later on."212 Accordingly, they submit that the "item veto
Constitution. But in exercising that authority he may not be appropriation may be validly apportioned into component
power of the President mandates that appropriations bills
confined to rules of strict construction or hampered by the percentages or values; however, it is crucial that each
adopt line-item budgeting" and that "Congress cannot
unwise interference of the judiciary. The courts will indulge percentage or value must be allocated for its own
choose a mode of budgeting which effectively renders the
every intendment in favor of the constitutionality of a veto in corresponding purpose for such component to be considered
constitutionally-given power of the President useless."213
the same manner as they will presume the constitutionality of as a proper line-item. Moreover, as Justice Carpio correctly
an act as originally passed by the Legislature. (Emphases pointed out, a valid appropriation may even have several
supplied) related purposes that are by accounting and budgeting On the other hand, respondents maintain that the text of the
practice considered as one purpose, e.g., MOOE Constitution envisions a process which is intended to meet
(maintenance and other operating expenses), in which case the demands of a modernizing economy and, as such, lump-
The justification for the President‘s item-veto power rests on
the related purposes shall be deemed sufficiently specific for sum appropriations are essential to financially address
a variety of policy goals such as to prevent log-rolling
the exercise of the President‘s item veto power. Finally, situations which are barely foreseen when a GAA is enacted.
legislation,207 impose fiscal restrictions on the legislature, as
special purpose funds and discretionary funds would equally They argue that the decision of the Congress to create some
well as to fortify the executive branch‘s role in the budgetary
square with the constitutional mechanism of item-veto for as lump-sum appropriations is constitutionally allowed and
process.208 In Immigration and Naturalization Service v.
long as they follow the rule on singular correspondence as textually-grounded.214
Chadha, the US Supreme Court characterized the
herein discussed. Anent special purpose funds, it must be
President‘s item-power as "a salutary check upon the
added that Section 25(4), Article VI of the 1987 Constitution
legislative body, calculated to guard the community against The Court agrees with petitioners.
requires that the "special appropriations bill shall specify the
the effects of factions, precipitancy, or of any impulse
purpose for which it is intended, and shall be supported by
unfriendly to the public good, which may happen to influence
funds actually available as certified by the National Under the 2013 PDAF Article, the amount of ₱24.79 Billion
a majority of that body"; phrased differently, it is meant to
Treasurer, or t o be raised by a corresponding revenue only appears as a collective allocation limit since the said
"increase the chances in favor of the community against the
proposal therein." Meanwhile, with respect to discretionary amount would be further divided among individual legislators
passing of bad laws, through haste, inadvertence, or
funds, Section 2 5(6), Article VI of the 1987 Constitution who would then receive personal lump-sum allocations and
design."209
requires that said funds "shall be disbursed only for public could, after the GAA is passed, effectively appropriate PDAF
purposes to be supported by appropriate vouchers and funds based on their own discretion. As these intermediate
For the President to exercise his item-veto power, it subject to such guidelines as may be prescribed by law." appropriations are made by legislators only after the GAA is
necessarily follows that there exists a proper "item" which passed and hence, outside of the law, it necessarily means
may be the object of the veto. An item, as defined in the field that the actual items of PDAF appropriation would not have
In contrast, what beckons constitutional infirmity are
of appropriations, pertains to "the particulars, the details, the been written into the General Appropriations Bill and thus
appropriations which merely provide for a singular lump-sum
distinct and severable parts of the appropriation or of the effectuated without veto consideration. This kind of lump-
amount to be tapped as a source of funding for multiple
bill." In the case of Bengzon v. Secretary of Justice of the sum/post-enactment legislative identification budgeting
purposes. Since such appropriation type necessitates the
Philippine Islands,210 the US Supreme Court characterized system fosters the creation of a budget within a budget"
further determination of both the actual amount to be
an item of appropriation as follows: which subverts the prescribed procedure of presentment and
expended and the actual purpose of the appropriation which
consequently impairs the President‘s power of item veto. As
must still be chosen from the multiple purposes stated in the
law, it cannot be said that the appropriation law already petitioners aptly point out, the above-described system
An item of an appropriation bill obviously means an item
indicates a "specific appropriation of money‖ and hence, forces the President to decide between (a) accepting the
which, in itself, is a specific appropriation of money, not
entire ₱24.79 Billion PDAF allocation without knowing the
some general provision of law which happens to be put into without a proper line-item which the President may veto. As
a practical result, the President would then be faced with the specific projects of the legislators, which may or may not be
an appropriation bill. (Emphases supplied)
predicament of either vetoing the entire appropriation if he consistent with his national agenda and (b) rejecting the
whole PDAF to the detriment of all other legislators with
finds some of its purposes wasteful or undesirable, or
On this premise, it may be concluded that an appropriation approving the entire appropriation so as not to hinder some legitimate projects.215
bill, to ensure that the President may be able to exercise his of its legitimate purposes. Finally, it may not be amiss to
power of item veto, must contain "specific appropriations of
state that such arrangement also raises non-delegability Moreover, even without its post-enactment legislative
money" and not only "general provisions" which provide for issues considering that the implementing authority would still identification feature, the 2013 PDAF Article would remain
parameters of appropriation. have to determine, again, both the actual amount to be constitutionally flawed since it would then operate as a
expended and the actual purpose of the appropriation. Since prohibited form of lump-sum appropriation above-
Further, it is significant to point out that an item of the foregoing determinations constitute the integral aspects characterized. In particular, the lump-sum amount of ₱24.79
appropriation must be an item characterized by singular of the power to appropriate, the implementing authority Billion would be treated as a mere funding source allotted for
correspondence – meaning an allocation of a specified would, in effect, be exercising legislative prerogatives in multiple purposes of spending, i.e., scholarships, medical
singular amount for a specified singular purpose, otherwise violation of the principle of non-delegability. missions, assistance to indigents, preservation of historical
known as a "line-item."211 This treatment not only allows the materials, construction of roads, flood control, etc. This setup
item to be consistent with its definition as a "specific connotes that the appropriation law leaves the actual
amounts and purposes of the appropriation for further either through: (a) scrutiny based primarily on Congress‘ participation, may affect the process of impeachment, this
determination and, therefore, does not readily indicate a power of appropriation and the budget hearings conducted in matter largely borders on the domain of politics and does not
discernible item which may be subject to the President‘s connection with it, its power to ask heads of departments to strictly concern the Pork Barrel System‘s intrinsic
power of item veto. appear before and be heard by either of its Houses on any constitutionality. As such, it is an improper subject of judicial
matter pertaining to their departments and its power of assessment.
confirmation;223 or (b) investigation and monitoring of the
In fact, on the accountability side, the same lump-sum
implementation of laws pursuant to the power of Congress to
budgeting scheme has, as the CoA Chairperson relays, In sum, insofar as its post-enactment features dilute
conduct inquiries in aid of legislation.224
"limited state auditors from obtaining relevant data and congressional oversight and violate Section 14, Article VI of
information that would aid in more stringently auditing the the 1987 Constitution, thus impairing public accountability,
utilization of said Funds."216 Accordingly, she recommends The Court agrees with petitioners that certain features the 2013 PDAF Article and other forms of Congressional
the adoption of a "line by line budget or amount per embedded in some forms of Congressional Pork Barrel, Pork Barrel of similar nature are deemed as unconstitutional.
proposed program, activity or project, and per implementing among others the 2013 PDAF Article, has an effect on
agency."217 congressional oversight. The fact that individual legislators
4. Political Dynasties.
are given post-enactment roles in the implementation of the
budget makes it difficult for them to become disinterested
Hence, in view of the reasons above-stated, the Court finds
"observers" when scrutinizing, investigating or monitoring the One of the petitioners submits that the Pork Barrel System
the 2013 PDAF Article, as well as all Congressional Pork
implementation of the appropriation law. To a certain extent, enables politicians who are members of political dynasties to
Barrel Laws of similar operation, to be unconstitutional. That
the conduct of oversight would be tainted as said legislators, accumulate funds to perpetuate themselves in power, in
such budgeting system provides for a greater degree of
who are vested with post-enactment authority, would, in contravention of Section 26, Article II of the 1987
flexibility to account for future contingencies cannot be an
effect, be checking on activities in which they themselves Constitution225 which states that:
excuse to defeat what the Constitution requires. Clearly, the
participate. Also, it must be pointed out that this very same
first and essential truth of the matter is that unconstitutional
concept of post-enactment authorization runs afoul of
means do not justify even commendable ends.218 Sec. 26. The State shall guarantee equal access to
Section 14, Article VI of the 1987 Constitution which provides
that: opportunities for public service, and prohibit political
dynasties as may be defined by law. (Emphasis and
c. Accountability.
underscoring supplied)
Sec. 14. No Senator or Member of the House of
Petitioners further relate that the system under which various Representatives may personally appear as counsel before
any court of justice or before the Electoral Tribunals, or At the outset, suffice it to state that the foregoing provision is
forms of Congressional Pork Barrel operate defies public
quasi-judicial and other administrative bodies. Neither shall considered as not self-executing due to the qualifying phrase
accountability as it renders Congress incapable of checking
he, directly or indirectly, be interested financially in any "as may be defined by law." In this respect, said provision
itself or its Members. In particular, they point out that the
contract with, or in any franchise or special privilege granted does not, by and of itself, provide a judicially enforceable
Congressional Pork Barrel "gives each legislator a direct,
by the Government, or any subdivision, agency, or constitutional right but merely specifies guideline for
financial interest in the smooth, speedy passing of the yearly
instrumentality thereof, including any government-owned or legislative or executive action.226 Therefore, since there
budget" which turns them "from fiscalizers" into "financially-
appears to be no standing law which crystallizes the policy
interested partners."219 They also claim that the system has controlled corporation, or its subsidiary, during his term of
office. He shall not intervene in any matter before any office on political dynasties for enforcement, the Court must defer
an effect on re- election as "the PDAF excels in self-
of the Government for his pecuniary benefit or where he may from ruling on this issue.
perpetuation of elective officials." Finally, they add that the
"PDAF impairs the power of impeachment" as such "funds be called upon to act on account of his office. (Emphasis
are indeed quite useful, ‘to well, accelerate the decisions of supplied) In any event, the Court finds the above-stated argument on
senators.‘"220 this score to be largely speculative since it has not been
properly demonstrated how the Pork Barrel System would be
Clearly, allowing legislators to intervene in the various
phases of project implementation – a matter before another able to propagate political dynasties.
The Court agrees in part.
office of government – renders them susceptible to taking
undue advantage of their own office. 5. Local Autonomy.
The aphorism forged under Section 1, Article XI of the 1987
Constitution, which states that "public office is a public trust,"
is an overarching reminder that every instrumentality of The Court, however, cannot completely agree that the same The State‘s policy on local autonomy is principally stated in
government should exercise their official functions only in post-enactment authority and/or the individual legislator‘s Section 25, Article II and Sections 2 and 3, Article X of the
accordance with the principles of the Constitution which control of his PDAF per se would allow him to perpetuate 1987 Constitution which read as follows:
embodies the parameters of the people‘s trust. The notion of himself in office. Indeed, while the Congressional Pork Barrel
a public trust connotes accountability,221 hence, the various and a legislator‘s use thereof may be linked to this area of
interest, the use of his PDAF for re-election purposes is a ARTICLE II
mechanisms in the Constitution which are designed to exact
accountability from public officers. matter which must be analyzed based on particular facts and
on a case-to-case basis. Sec. 25. The State shall ensure the autonomy of local
governments.
Among others, an accountability mechanism with which the
proper expenditure of public funds may be checked is the Finally, while the Court accounts for the possibility that the
power of congressional oversight. As mentioned in close operational proximity between legislators and the ARTICLE X
Abakada,222 congressional oversight may be performed Executive department, through the former‘s post-enactment
Sec. 2. The territorial and political subdivisions shall enjoy one derives its strength." The vitalization of local certainly are anathema to the Congressional Pork Barrel‘s
local autonomy. governments will enable their inhabitants to fully exploit their original intent which is "to make equal the unequal."
resources and more important, imbue them with a deepened Ultimately, the PDAF and CDF had become personal funds
sense of involvement in public affairs as members of the under the effective control of each legislator and given unto
Sec. 3. The Congress shall enact a local government code
body politic. This objective could be blunted by undue them on the sole account of their office.
which shall provide for a more responsive and accountable
interference by the national government in purely local affairs
local government structure instituted through a system of
which are best resolved by the officials and inhabitants of
decentralization with effective mechanisms of recall, The Court also observes that this concept of legislator
such political units. The decision we reach today conforms
initiative, and referendum, allocate among the different local control underlying the CDF and PDAF conflicts with the
not only to the letter of the pertinent laws but also to the spirit
government units their powers, responsibilities, and functions of the various Local Development Councils (LDCs)
of the Constitution.229 (Emphases and underscoring
resources, and provide for the qualifications, election, which are already legally mandated to "assist the
supplied)
appointment and removal, term, salaries, powers and corresponding sanggunian in setting the direction of
functions and duties of local officials, and all other matters economic and social development, and coordinating
relating to the organization and operation of the local units. In the cases at bar, petitioners contend that the development efforts within its territorial
Congressional Pork Barrel goes against the constitutional jurisdiction."234 Considering that LDCs are instrumentalities
principles on local autonomy since it allows district whose functions are essentially geared towards managing
Pursuant thereto, Congress enacted RA 7160,227 otherwise
representatives, who are national officers, to substitute their local affairs,235 their programs, policies and resolutions
known as the "Local Government Code of 1991" (LGC),
judgments in utilizing public funds for local should not be overridden nor duplicated by individual
wherein the policy on local autonomy had been more
development.230 The Court agrees with petitioners. legislators, who are national officers that have no law-making
specifically explicated as follows:
authority except only when acting as a body. The
undermining effect on local autonomy caused by the post-
Philconsa described the 1994 CDF as an attempt "to make
Sec. 2. Declaration of Policy. – (a) It is hereby declared the enactment authority conferred to the latter was succinctly put
equal the unequal" and that "it is also a recognition that
policy of the State that the territorial and political subdivisions by petitioners in the following wise:236
individual members of Congress, far more than the President
of the State shall enjoy genuine and meaningful local
and their congressional colleagues, are likely to be
autonomy to enable them to attain their fullest development
knowledgeable about the needs of their respective With PDAF, a Congressman can simply bypass the local
as self-reliant communities and make them more effective
constituents and the priority to be given each development council and initiate projects on his own, and
partners in the attainment of national goals. Toward this end,
project."231 Drawing strength from this pronouncement, even take sole credit for its execution. Indeed, this type of
the State shall provide for a more responsive and
previous legislators justified its existence by stating that "the personality-driven project identification has not only
accountable local government structure instituted through a
relatively small projects implemented under the contributed little to the overall development of the district, but
system of decentralization whereby local government units
Congressional Pork Barrel complement and link the national has even contributed to "further weakening infrastructure
shall be given more powers, authority, responsibilities, and
development goals to the countryside and grassroots as well planning and coordination efforts of the government."
resources. The process of decentralization shall proceed
as to depressed areas which are overlooked by central
from the National Government to the local government units.
agencies which are preoccupied with mega-
Thus, insofar as individual legislators are authorized to
projects.232 Similarly, in his August 23, 2013 speech on the
intervene in purely local matters and thereby subvert
xxxx "abolition" of PDAF and budgetary reforms, President Aquino
genuine local autonomy, the 2013 PDAF Article as well as all
mentioned that the Congressional Pork Barrel was originally
other similar forms of Congressional Pork Barrel is deemed
established for a worthy goal, which is to enable the
(c) It is likewise the policy of the State to require all national unconstitutional.
representatives to identify projects for communities that the
agencies and offices to conduct periodic consultations with LGU concerned cannot afford.233
appropriate local government units, nongovernmental and
With this final issue on the Congressional Pork Barrel
people‘s organizations, and other concerned sectors of the
resolved, the Court now turns to the substantive issues
community before any project or program is implemented in Notwithstanding these declarations, the Court, however,
involving the Presidential Pork Barrel.
their respective jurisdictions. (Emphases and underscoring finds an inherent defect in the system which actually belies
supplied) the avowed intention of "making equal the unequal." In
particular, the Court observes that the gauge of PDAF and C. Substantive Issues on the Presidential Pork Barrel.
CDF allocation/division is based solely on the fact of office,
The above-quoted provisions of the Constitution and the without taking into account the specific interests and
LGC reveal the policy of the State to empower local 1. Validity of Appropriation.
peculiarities of the district the legislator represents. In this
government units (LGUs) to develop and ultimately, become regard, the allocation/division limits are clearly not based on
self-sustaining and effective contributors to the national genuine parameters of equality, wherein economic or Petitioners preliminarily assail Section 8 of PD 910 and
economy. As explained by the Court in Philippine Gamefowl
geographic indicators have been taken into consideration. As Section 12 of PD1869 (now, amended by PD 1993), which
Commission v. Intermediate Appellate Court:228 a result, a district representative of a highly-urbanized respectively provide for the Malampaya Funds and the
metropolis gets the same amount of funding as a district Presidential Social Fund, as invalid appropriations laws since
This is as good an occasion as any to stress the commitment representative of a far-flung rural province which would be they do not have the "primary and specific" purpose of
of the Constitution to the policy of local autonomy which is relatively "underdeveloped" compared to the former. To add, authorizing the release of public funds from the National
intended to provide the needed impetus and encouragement what rouses graver scrutiny is that even Senators and Party- Treasury. Petitioners submit that Section 8 of PD 910 is not
to the development of our local political subdivisions as "self List Representatives – and in some years, even the Vice- an appropriation law since the "primary and specific‖
- reliant communities." In the words of Jefferson, "Municipal President – who do not represent any locality, receive purpose of PD 910 is the creation of an Energy Development
corporations are the small republics from which the great funding from the Congressional Pork Barrel as well. These Board and Section 8 thereof only created a Special Fund
incidental thereto.237 In similar regard, petitioners argue that To constitute an appropriation there must be money placed revenues, and receipts of the Energy Development Board
Section 12 of PD 1869 is neither a valid appropriations law in a fund applicable to the designated purpose. The word from any and all sources" (a determinable amount) "to be
since the allocation of the Presidential Social Fund is merely appropriate means to allot, assign, set apart or apply to a used to finance energy resource development and
incidental to the "primary and specific" purpose of PD 1869 particular use or purpose. An appropriation in the sense of exploitation programs and projects of the government and for
which is the amendment of the Franchise and Powers of the constitution means the setting apart a portion of the such other purposes as may be hereafter directed by the
PAGCOR.238 In view of the foregoing, petitioners suppose public funds for a public purpose. No particular form of words President" (a specified public purpose), and (b) Section 12 of
that such funds are being used without any valid law allowing is necessary for the purpose, if the intention to appropriate is PD 1869, as amended by PD 1993, which similarly sets
for their proper appropriation in violation of Section 29(1), plainly manifested. (Emphases supplied) aside, "after deducting five (5%) percent as Franchise Tax,
Article VI of the 1987 Constitution which states that: "No the Fifty (50%) percent share of the Government in the
money shall be paid out of the Treasury except in pursuance aggregate gross earnings of PAGCOR, or 60%, if the
Thus, based on the foregoing, the Court cannot sustain the
of an appropriation made by law."239 aggregate gross earnings be less than ₱150,000,000.00"
argument that the appropriation must be the "primary and
(also a determinable amount) "to finance the priority
specific" purpose of the law in order for a valid appropriation
infrastructure development projects and x x x the restoration
The Court disagrees. law to exist. To reiterate, if a legal provision designates a
of damaged or destroyed facilities due to calamities, as may
determinate or determinable amount of money and allocates
be directed and authorized by the Office of the President of
the same for a particular public purpose, then the legislative
"An appropriation made by law‖ under the contemplation of the Philippines" (also a specified public purpose), are legal
intent to appropriate becomes apparent and, hence, already
Section 29(1), Article VI of the 1987 Constitution exists when appropriations under Section 29(1), Article VI of the 1987
sufficient to satisfy the requirement of an "appropriation
a provision of law (a) sets apart a determinate or Constitution.
made by law" under contemplation of the Constitution.
determinable240 amount of money and (b) allocates the same
for a particular public purpose. These two minimum
In this relation, it is apropos to note that the 2013 PDAF
designations of amount and purpose stem from the very Section 8 of PD 910 pertinently provides:
Article cannot be properly deemed as a legal appropriation
definition of the word "appropriation," which means "to allot,
under the said constitutional provision precisely because, as
assign, set apart or apply to a particular use or purpose," and
Section 8. Appropriations. x x x earlier stated, it contains post-enactment measures which
hence, if written into the law, demonstrate that the legislative
effectively create a system of intermediate appropriations.
intent to appropriate exists. As the Constitution "does not
These intermediate appropriations are the actual
provide or prescribe any particular form of words or religious All fees, revenues and receipts of the Board from any and all
appropriations meant for enforcement and since they are
recitals in which an authorization or appropriation by sources including receipts from service contracts and made by individual legislators after the GAA is passed, they
Congress shall be made, except that it be ‘made by law,‘" an agreements such as application and processing fees, occur outside the law. As such, the Court observes that the
appropriation law may – according to Philconsa – be signature bonus, discovery bonus, production bonus; all real appropriation made under the 2013 PDAF Article is not
"detailed and as broad as Congress wants it to be" for as money collected from concessionaires, representing unspent the ₱24.79 Billion allocated for the entire PDAF, but rather
long as the intent to appropriate may be gleaned from the work obligations, fines and penalties under the Petroleum the post-enactment determinations made by the individual
same. As held in the case of Guingona, Jr.:241 Act of 1949; as well as the government share representing legislators which are, to repeat, occurrences outside of the
royalties, rentals, production share on service contracts and law. Irrefragably, the 2013 PDAF Article does not constitute
similar payments on the exploration, development and
There is no provision in our Constitution that provides or an "appropriation made by law" since it, in its truest sense,
exploitation of energy resources, shall form part of a Special only authorizes individual legislators to appropriate in
prescribes any particular form of words or religious recitals in
Fund to be used to finance energy resource development violation of the non-delegability principle as afore-discussed.
which an authorization or appropriation by Congress shall be
and exploitation programs and projects of the government
made, except that it be "made by law," such as precisely the
and for such other purposes as may be hereafter directed by
authorization or appropriation under the questioned
the President. (Emphases supplied) 2. Undue Delegation.
presidential decrees. In other words, in terms of time
horizons, an appropriation may be made impliedly (as by
past but subsisting legislations) as well as expressly for the Whereas Section 12 of PD 1869, as amended by PD 1993, On a related matter, petitioners contend that Section 8 of PD
current fiscal year (as by enactment of laws by the present reads: 910 constitutes an undue delegation of legislative power
Congress), just as said appropriation may be made in since the phrase "and for such other purposes as may be
general as well as in specific terms. The Congressional hereafter directed by the President" gives the President
authorization may be embodied in annual laws, such as a Sec. 12. Special Condition of Franchise. — After deducting "unbridled discretion to determine for what purpose the funds
general appropriations act or in special provisions of laws of five (5%) percent as Franchise Tax, the Fifty (50%) percent will be used."243 Respondents, on the other hand, urged the
share of the Government in the aggregate gross earnings of
general or special application which appropriate public funds Court to apply the principle of ejusdem generis to the same
for specific public purposes, such as the questioned decrees. the Corporation from this Franchise, or 60% if the aggregate section and thus, construe the phrase "and for such other
An appropriation measure is sufficient if the legislative gross earnings be less than ₱150,000,000.00 shall be set purposes as may be hereafter directed by the President" to
aside and shall accrue to the General Fund to finance the
intention clearly and certainly appears from the language refer only to other purposes related "to energy resource
employed (In re Continuing Appropriations, 32 P. 272), priority infrastructure development projects and to finance development and exploitation programs and projects of the
whether in the past or in the present. (Emphases and the restoration of damaged or destroyed facilities due to government."244
calamities, as may be directed and authorized by the Office
underscoring supplied)
of the President of the Philippines. (Emphases supplied)
The Court agrees with petitioners‘ submissions.
Likewise, as ruled by the US Supreme Court in State of
Analyzing the legal text vis-à-vis the above-mentioned
Nevada v. La Grave:242
principles, it may then be concluded that (a) Section 8 of PD While the designation of a determinate or determinable
910, which creates a Special Fund comprised of "all fees, amount for a particular public purpose is sufficient for a legal
appropriation to exist, the appropriation law must contain delegating law. This notwithstanding, it must be underscored Aside from seeking the Court to declare the Pork Barrel
adequate legislative guidelines if the same law delegates that the rest of Section 8, insofar as it allows for the use of System unconstitutional – as the Court did so in the context
rule-making authority to the Executive245 either for the the Malampaya Funds "to finance energy resource of its pronouncements made in this Decision – petitioners
purpose of (a) filling up the details of the law for its development and exploitation programs and projects of the equally pray that the Executive Secretary and/or the DBM be
enforcement, known as supplementary rule-making, or (b) government," remains legally effective and subsisting. Truth ordered to release to the CoA and to the public: (a) "the
ascertaining facts to bring the law into actual operation, be told, the declared unconstitutionality of the complete schedule/list of legislators who have availed of
referred to as contingent rule-making.246 There are two (2) aforementioned phrase is but an assurance that the their PDAF and VILP from the years 2003 to 2013,
fundamental tests to ensure that the legislative guidelines for Malampaya Funds would be used – as it should be used – specifying the use of the funds, the project or activity and the
delegated rule-making are indeed adequate. The first test is only in accordance with the avowed purpose and intention of recipient entities or individuals, and all pertinent data thereto"
called the "completeness test." Case law states that a law is PD 910. (PDAF Use Schedule/List);254 and (b) "the use of the
complete when it sets forth therein the policy to be executed, Executive‘s lump-sum, discretionary funds, including the
carried out, or implemented by the delegate. On the other proceeds from the x x x Malampaya Funds and remittances
As for the Presidential Social Fund, the Court takes judicial
hand, the second test is called the "sufficient standard test." from the PAGCOR x x x from 2003 to 2013, specifying the x
notice of the fact that Section 12 of PD 1869 has already
Jurisprudence holds that a law lays down a sufficient x x project or activity and the recipient entities or individuals,
been amended by PD 1993 which thus moots the parties‘
standard when it provides adequate guidelines or limitations and all pertinent data thereto"255 (Presidential Pork Use
submissions on the same.252 Nevertheless, since the
in the law to map out the boundaries of the delegate‘s Report). Petitioners‘ prayer is grounded on Section 28,
amendatory provision may be readily examined under the
authority and prevent the delegation from running riot.247 To Article II and Section 7, Article III of the 1987 Constitution
current parameters of discussion, the Court proceeds to
be sufficient, the standard must specify the limits of the which read as follows:
resolve its constitutionality.
delegate‘s authority, announce the legislative policy, and
identify the conditions under which it is to be implemented.248
ARTICLE II
Primarily, Section 12 of PD 1869, as amended by PD 1993,
indicates that the Presidential Social Fund may be used "to
In view of the foregoing, the Court agrees with petitioners
first, finance the priority infrastructure development projects Sec. 28. Subject to reasonable conditions prescribed by law,
that the phrase "and for such other purposes as may be
and second, to finance the restoration of damaged or the State adopts and implements a policy of full public
hereafter directed by the President" under Section 8 of PD
destroyed facilities due to calamities, as may be directed and disclosure of all its transactions involving public interest.
910 constitutes an undue delegation of legislative power
authorized by the Office of the President of the Philippines."
insofar as it does not lay down a sufficient standard to
The Court finds that while the second indicated purpose
adequately determine the limits of the President‘s authority ARTICLE III Sec. 7.
adequately curtails the authority of the President to spend
with respect to the purpose for which the Malampaya Funds
the Presidential Social Fund only for restoration purposes
may be used. As it reads, the said phrase gives the
which arise from calamities, the first indicated purpose, The right of the people to information on matters of public
President wide latitude to use the Malampaya Funds for any
however, gives him carte blanche authority to use the same concern shall be recognized. Access to official records, and
other purpose he may direct and, in effect, allows him to
fund for any infrastructure project he may so determine as a to documents and papers pertaining to official acts,
unilaterally appropriate public funds beyond the purview of
"priority". Verily, the law does not supply a definition of transactions, or decisions, as well as to government
the law. That the subject phrase may be confined only to
"priority in frastructure development projects" and hence, research data used as basis for policy development, shall be
"energy resource development and exploitation programs
leaves the President without any guideline to construe the afforded the citizen, subject to such limitations as may be
and projects of the government" under the principle of
same. To note, the delimitation of a project as one of provided by law.
ejusdem generis, meaning that the general word or phrase is
"infrastructure" is too broad of a classification since the said
to be construed to include – or be restricted to – things akin
term could pertain to any kind of facility. This may be
to, resembling, or of the same kind or class as those
deduced from its lexicographic definition as follows: "the The Court denies petitioners‘ submission.
specifically mentioned,249 is belied by three (3) reasons: first,
underlying framework of a system, especially public services
the phrase "energy resource development and exploitation
and facilities (such as highways, schools, bridges, sewers, Case law instructs that the proper remedy to invoke the right
programs and projects of the government" states a singular
and water-systems) needed to support commerce as well as to information is to file a petition for mandamus. As explained
and general class and hence, cannot be treated as a
economic and residential development."253 In fine, the phrase in the case of Legaspi v. Civil Service Commission:256
statutory reference of specific things from which the general
"to finance the priority infrastructure development projects"
phrase "for such other purposes" may be limited; second, the
must be stricken down as unconstitutional since – similar to
said phrase also exhausts the class it represents, namely While the manner of examining public records may be
the above-assailed provision under Section 8 of PD 910 – it
energy development programs of the government;250 and, subject to reasonable regulation by the government agency
lies independently unfettered by any sufficient standard of
third, the Executive department has, in fact, used the in custody thereof, the duty to disclose the information of
the delegating law. As they are severable, all other
Malampaya Funds for non-energy related purposes under public concern, and to afford access to public records cannot
provisions of Section 12 of PD 1869, as amended by PD
the subject phrase, thereby contradicting respondents‘ own be discretionary on the part of said agencies. Certainly, its
1993, remains legally effective and subsisting.
position that it is limited only to "energy resource performance cannot be made contingent upon the discretion
development and exploitation programs and projects of the of such agencies. Otherwise, the enjoyment of the
government."251 Thus, while Section 8 of PD 910 may have D. Ancillary Prayers. 1. constitutional right may be rendered nugatory by any
passed the completeness test since the policy of energy whimsical exercise of agency discretion. The constitutional
development is clearly deducible from its text, the phrase duty, not being discretionary, its performance may be
Petitioners’ Prayer to be Furnished Lists and Detailed
"and for such other purposes as may be hereafter directed compelled by a writ of mandamus in a proper case.
by the President" under the same provision of law should Reports.
nonetheless be stricken down as unconstitutional as it lies
independently unfettered by any sufficient standard of the
But what is a proper case for Mandamus to issue? In the document relevant to the conduct of its audit investigations. remittances from the PAGCOR and the PCSO or the
case before Us, the public right to be enforced and the While the Court recognizes that the information requested is Executive‘s Social Funds."260
concomitant duty of the State are unequivocably set forth in a matter of significant public concern, however, if only to
the Constitution. ensure that the parameters of disclosure are properly foisted
Suffice it to state that the above-stated relief sought by
and so as not to unduly hamper the equally important
petitioners covers a matter which is generally left to the
interests of the government, it is constrained to deny
The decisive question on the propriety of the issuance of the prerogative of the political branches of government. Hence,
petitioners‘ prayer on this score, without prejudice to a
writ of mandamus in this case is, whether the information lest the Court itself overreach, it must equally deny their
proper mandamus case which they, or even the CoA, may
sought by the petitioner is within the ambit of the prayer on this score.
choose to pursue through a separate petition.
constitutional guarantee. (Emphases supplied)
3. Respondents’ Prayer to Lift TRO; Consequential Effects of
It bears clarification that the Court‘s denial herein should only
Corollarily, in the case of Valmonte v. Belmonte Decision.
cover petitioners‘ plea to be furnished with such schedule/list
Jr.257 (Valmonte), it has been clarified that the right to
and report and not in any way deny them, or the general
information does not include the right to compel the
public, access to official documents which are already The final issue to be resolved stems from the interpretation
preparation of "lists, abstracts, summaries and the like." In
existing and of public record. Subject to reasonable accorded by the DBM to the concept of released funds. In
the same case, it was stressed that it is essential that the
regulation and absent any valid statutory prohibition, access response to the Court‘s September 10, 2013 TRO that
"applicant has a well -defined, clear and certain legal right to
to these documents should not be proscribed. Thus, in enjoined the release of the remaining PDAF allocated for the
the thing demanded and that it is the imperative duty of
Valmonte, while the Court denied the application for year 2013, the DBM issued Circular Letter No. 2013-8 dated
defendant to perform the act required." Hence, without the
mandamus towards the preparation of the list requested by September 27, 2013 (DBM Circular 2013-8) which
foregoing substantiations, the Court cannot grant a particular
petitioners therein, it nonetheless allowed access to the pertinently reads as follows:
request for information. The pertinent portions of Valmonte
documents sought for by the latter, subject, however, to the
are hereunder quoted:258
custodian‘s reasonable regulations,viz.:259
3.0 Nonetheless, PDAF projects funded under the FY 2013
GAA, where a Special Allotment Release Order (SARO) has
Although citizens are afforded the right to information and,
In fine, petitioners are entitled to access to the documents been issued by the DBM and such SARO has been
pursuant thereto, are entitled to "access to official records,"
evidencing loans granted by the GSIS, subject to reasonable obligated by the implementing agencies prior to the issuance
the Constitution does not accord them a right to compel
regulations that the latter may promulgate relating to the of the TRO, may continually be implemented and
custodians of official records to prepare lists, abstracts,
manner and hours of examination, to the end that damage to disbursements thereto effected by the agencies concerned.
summaries and the like in their desire to acquire information
or loss of the records may be avoided, that undue
on matters of public concern.
interference with the duties of the custodian of the records
may be prevented and that the right of other persons entitled Based on the text of the foregoing, the DBM authorized the
to inspect the records may be insured Legaspi v. Civil continued implementation and disbursement of PDAF funds
It must be stressed that it is essential for a writ of mandamus
Service Commission, supra at p. 538, quoting Subido v. as long as they are: first, covered by a SARO; and, second,
to issue that the applicant has a well-defined, clear and
Ozaeta, 80 Phil. 383, 387. The petition, as to the second and that said SARO had been obligated by the implementing
certain legal right to the thing demanded and that it is the
agency concerned prior to the issuance of the Court‘s
imperative duty of defendant to perform the act required. The third alternative acts sought to be done by petitioners, is
meritorious. September 10, 2013 TRO.
corresponding duty of the respondent to perform the required
act must be clear and specific Lemi v. Valencia, G.R. No. L-
20768, November 29,1968,126 SCRA 203; Ocampo v. Petitioners take issue with the foregoing circular, arguing that
However, the same cannot be said with regard to the first act
Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443. "the issuance of the SARO does not yet involve the release
sought by petitioners, i.e.,
of funds under the PDAF, as release is only triggered by the
issuance of a Notice of Cash Allocation [(NCA)]." 261 As such,
The request of the petitioners fails to meet this standard,
"to furnish petitioners the list of the names of the Batasang PDAF disbursements, even if covered by an obligated
there being no duty on the part of respondent to prepare the
Pambansa members belonging to the UNIDO and PDP- SARO, should remain enjoined.
list requested. (Emphases supplied)
Laban who were able to secure clean loans immediately
before the February 7 election thru the intercession/marginal
note of the then First Lady Imelda Marcos." For their part, respondents espouse that the subject TRO
In these cases, aside from the fact that none of the petitions
only covers "unreleased and unobligated allotments." They
are in the nature of mandamus actions, the Court finds that
explain that once a SARO has been issued and obligated by
petitioners have failed to establish a "a well-defined, clear
The Court, therefore, applies the same treatment here. the implementing agency concerned, the PDAF funds
and certain legal right" to be furnished by the Executive
covered by the same are already "beyond the reach of the
Secretary and/or the DBM of their requested PDAF Use
TRO because they cannot be considered as ‘remaining
Schedule/List and Presidential Pork Use Report. Neither did 2. Petitioners’ Prayer to Include Matters in Congressional
PDAF.‘" They conclude that this is a reasonable
petitioners assert any law or administrative issuance which Deliberations.
interpretation of the TRO by the DBM.262
would form the bases of the latter‘s duty to furnish them with
the documents requested. While petitioners pray that said
Petitioners further seek that the Court "order the inclusion in
information be equally released to the CoA, it must be The Court agrees with petitioners in part.
budgetary deliberations with the Congress of all presently,
pointed out that the CoA has not been impleaded as a party
off-budget, lump sum, discretionary funds including but not
to these cases nor has it filed any petition before the Court to
limited to, proceeds from the x x x Malampaya Fund, At the outset, it must be observed that the issue of whether
be allowed access to or to compel the release of any official
or not the Court‘s September 10, 2013 TRO should be lifted
is a matter rendered moot by the present Decision. The Justice Bernabe: Are there instances that SAROs are To explain, the operative fact doctrine exhorts the
unconstitutionality of the 2013 PDAF Article as declared cancelled or revoked? recognition that until the judiciary, in an appropriate case,
herein has the consequential effect of converting the declares the invalidity of a certain legislative or executive act,
temporary injunction into a permanent one. Hence, from the such act is presumed constitutional and thus, entitled to
Atty. Ruiz: Your Honor, I would like to instead submit that
promulgation of this Decision, the release of the remaining obedience and respect and should be properly enforced and
there are instances that the SAROs issued are withdrawn by
PDAF funds for 2013, among others, is now permanently complied with. As explained in the recent case of
the DBM.
enjoined. Commissioner of Internal Revenue v. San Roque Power
Corporation,266 the doctrine merely "reflects awareness that
Justice Bernabe: They are withdrawn? precisely because the judiciary is the governmental organ
The propriety of the DBM‘s interpretation of the concept of
which has the final say on whether or not a legislative or
"release" must, nevertheless, be resolved as it has a
executive measure is valid, a period of time may have
practical impact on the execution of the current Decision. In Atty. Ruiz: Yes, Your Honor x x x. (Emphases and elapsed before it can exercise the power of judicial review
particular, the Court must resolve the issue of whether or not underscoring supplied) that may lead to a declaration of nullity. It would be to
PDAF funds covered by obligated SAROs, at the time this
deprive the law of its quality of fairness and justice then, if
Decision is promulgated, may still be disbursed following the
Thus, unless an NCA has been issued, public funds should there be no recognition of what had transpired prior to such
DBM‘s interpretation in DBM Circular 2013-8.
not be treated as funds which have been "released." In this adjudication."267 "In the language of an American Supreme
respect, therefore, the disbursement of 2013 PDAF funds Court decision: ‘The actual existence of a statute, prior to
On this score, the Court agrees with petitioners‘ posturing for which are only covered by obligated SAROs, and without such a determination of unconstitutionality, is an operative
the fundamental reason that funds covered by an obligated any corresponding NCAs issued, must, at the time of this fact and may have consequences which cannot justly be
SARO are yet to be "released" under legal contemplation. A Decision’s promulgation, be enjoined and consequently ignored.‘"268
SARO, as defined by the DBM itself in its website, is reverted to the unappropriated surplus of the general fund.
"aspecific authority issued to identified agencies to incur Verily, in view of the declared unconstitutionality of the 2013 For these reasons, this Decision should be heretofore
obligations not exceeding a given amount during a specified PDAF Article, the funds appropriated pursuant thereto
applied prospectively.
period for the purpose indicated. It shall cover expenditures cannot be disbursed even though already obligated, else the
the release of which is subject to compliance with specific Court sanctions the dealing of funds coming from an
laws or regulations, or is subject to separate approval or unconstitutional source. Conclusion
clearance by competent authority."263
This same pronouncement must be equally applied to (a) the The Court renders this Decision to rectify an error which has
Based on this definition, it may be gleaned that a SARO only Malampaya Funds which have been obligated but not persisted in the chronicles of our history. In the final analysis,
evinces the existence of an obligation and not the directive to released – meaning, those merely covered by a SARO – the Court must strike down the Pork Barrel System as
pay. Practically speaking, the SARO does not have the direct under the phrase "and for such other purposes as may be unconstitutional in view of the inherent defects in the rules
and immediate effect of placing public funds beyond the hereafter directed by the President" pursuant to Section 8 of within which it operates. To recount, insofar as it has allowed
control of the disbursing authority. In fact, a SARO may even PD 910; and (b) funds sourced from the Presidential Social legislators to wield, in varying gradations, non-oversight,
be withdrawn under certain circumstances which will prevent Fund under the phrase "to finance the priority infrastructure post-enactment authority in vital areas of budget execution,
the actual release of funds. On the other hand, the actual development projects" pursuant to Section 12 of PD 1869, as the system has violated the principle of separation of
release of funds is brought about by the issuance of the amended by PD 1993, which were altogether declared by powers; insofar as it has conferred unto legislators the power
NCA,264 which is subsequent to the issuance of a SARO. As the Court as unconstitutional. However, these funds should of appropriation by giving them personal, discretionary funds
may be determined from the statements of the DBM not be reverted to the general fund as afore-stated but from which they are able to fund specific projects which they
representative during the Oral Arguments:265 instead, respectively remain under the Malampaya Funds themselves determine, it has similarly violated the principle
and the Presidential Social Fund to be utilized for their of non-delegability of legislative power ; insofar as it has
corresponding special purposes not otherwise declared as created a system of budgeting wherein items are not
Justice Bernabe: Is the notice of allocation issued
unconstitutional. textualized into the appropriations bill, it has flouted the
simultaneously with the SARO?
prescribed procedure of presentment and, in the process,
denied the President the power to veto items ; insofar as it
E. Consequential Effects of Decision. has diluted the effectiveness of congressional oversight by
xxxx
giving legislators a stake in the affairs of budget execution,
As a final point, it must be stressed that the Court‘s an aspect of governance which they may be called to
Atty. Ruiz: It comes after. The SARO, Your Honor, is only the monitor and scrutinize, the system has equally impaired
pronouncement anent the unconstitutionality of (a) the 2013
go signal for the agencies to obligate or to enter into public accountability ; insofar as it has authorized legislators,
PDAF Article and its Special Provisions, (b) all other
commitments. The NCA, Your Honor, is already the go
Congressional Pork Barrel provisions similar thereto, and (c) who are national officers, to intervene in affairs of purely
signal to the treasury for us to be able to pay or to liquidate local nature, despite the existence of capable local
the phrases (1) "and for such other purposes as may be
the amounts obligated in the SARO; so it comes after. x x x institutions, it has likewise subverted genuine local autonomy
hereafter directed by the President" under Section 8 of PD
The NCA, Your Honor, is the go signal for the MDS for the
910, and (2) "to finance the priority infrastructure ; and again, insofar as it has conferred to the President the
authorized government-disbursing banks to, therefore, pay power to appropriate funds intended by law for energy-
development projects" under Section 12 of PD 1869, as
the payees depending on the projects or projects covered by related purposes only to other purposes he may deem fit as
amended by PD 1993, must only be treated as prospective
the SARO and the NCA.
in effect in view of the operative fact doctrine. well as other public funds under the broad classification of
"priority infrastructure development projects," it has once
more transgressed the principle of non-delegability.
For as long as this nation adheres to the rule of law, any of development projects" pursuant to Section 12 of Presidential BRION, J.:
the multifarious unconstitutional methods and mechanisms Decree No. 1869, as amended by Presidential Decree No.
the Court has herein pointed out should never again be 1993, which are, at the time this Decision is promulgated, not
We resolve the motion for reconsideration filed by petitioner
adopted in any system of governance, by any name or form, covered by Notice of Cash Allocations (NCAs) but only by
Romarico J. Mendoza seeking the reversal of
by any semblance or similarity, by any influence or effect. Special Allotment Release Orders (SAROs), whether
our Decision dated August 3, 2010. The Decision affirmed
Disconcerting as it is to think that a system so obligated or not, are hereby ENJOINED. The remaining
the petitioner’s conviction for his failure to remit the Social
constitutionally unsound has monumentally endured, the PDAF funds covered by this permanent injunction shall not
Security Service (SSS) contributions of his employees. The
Court urges the people and its co-stewards in government to be disbursed/released but instead reverted to the
petitioner anchors the present motion on his supposed
look forward with the optimism of change and the awareness unappropriated surplus of the general fund, while the funds
inclusion within the coverage of Republic Act (RA) No. 9903
of the past. At a time of great civic unrest and vociferous under the Malampaya Funds and the Presidential Social
or the Social Security Condonation Law of 2009, whose
public debate, the Court fervently hopes that its Decision Fund shall remain therein to be utilized for their respective
passage the petitioner claims to be a supervening event in
today, while it may not purge all the wrongs of society nor special purposes not otherwise declared as unconstitutional.
his case. He further invokes the equal protection clause in
bring back what has been lost, guides this nation to the path
support of his motion.
forged by the Constitution so that no one may heretofore
On the other hand, due to improper recourse and lack of
detract from its cause nor stray from its course. After all, this
proper substantiation, the Court hereby DENIES petitioners‘
is the Court‘s bounden duty and no other‘s. In our Decision dated August 3, 2010, we AFFIRMED, with
prayer seeking that the Executive Secretary and/or the
modification, the decree of conviction issued by both the
Department of Budget and Management be ordered to
trial and appellate courts for the petitioner’s violation of
WHEREFORE, the petitions are PARTLY GRANTED. In provide the public and the Commission on Audit complete
Section 22(a) and (d), in relation to Section 28 of RA No.
view of the constitutional violations discussed in this lists/schedules or detailed reports related to the availments
8282 or the Social Security Act of 1997. To recall its
Decision, the Court hereby declares as and utilization of the funds subject of these cases.
highlights, our Decision emphasized that the petitioner
UNCONSTITUTIONAL: (a) the entire 2013 PDAF Article; (b) Petitioners‘ access to official documents already available
readily admitted during trial that he did not remit the SSS
all legal provisions of past and present Congressional Pork and of public record which are related to these funds must,
premium contributions of his employees at Summa Alta
Barrel Laws, such as the previous PDAF and CDF Articles however, not be prohibited but merely subjected to the
Tierra Industries, Inc. from August 1998 to July 1999, in the
and the various Congressional Insertions, which authorize/d custodian‘s reasonable regulations or any valid statutory
amount of ₱239,756.80; inclusive of penalties, this
legislators – whether individually or collectively organized prohibition on the same. This denial is without prejudice to a
unremitted amount totaled to ₱421,151.09. The petitioner’s
into committees – to intervene, assume or participate in any proper mandamus case which they or the Commission on
explanation for his failure to remit, which the trial court
of the various post-enactment stages of the budget Audit may choose to pursue through a separate petition.
disbelieved, was that during this period, Summa Alta Tierra
execution, such as but not limited to the areas of project
Industries, Inc. shut down as a result of the general decline
identification, modification and revision of project
The Court also DENIES petitioners prayer to order the in the economy. The petitioner pleaded good faith and lack
identification, fund release and/or fund realignment,
inclusion of the funds subject of these cases in the budgetary of criminal intent as his defenses.
unrelated to the power of congressional oversight; (c) all
deliberations of Congress as the same is a matter left to the
legal provisions of past and present Congressional Pork
prerogative of the political branches of government.
Barrel Laws, such as the previous PDAF and CDF Articles We ruled that the decree of conviction was founded on proof
and the various Congressional Insertions, which confer/red beyond reasonable doubt, based on the following
personal, lump-sum allocations to legislators from which they Finally, the Court hereby DIRECTS all prosecutorial organs considerations: first, the remittance of employee
are able to fund specific projects which they themselves of the government to, within the bounds of reasonable contributions to the SSS is mandatory under RA No. 8282;
determine; (d) all informal practices of similar import and dispatch, investigate and accordingly prosecute all and second, the failure to comply with a special law
effect, which the Court similarly deems to be acts of grave government officials and/or private individuals for possible being malum prohibitum, the defenses of good faith and lack
abuse of discretion amounting to lack or excess of criminal offenses related to the irregular, improper and/or of criminal intent are immaterial.
jurisdiction; and (e) the phrases (1) "and for such other unlawful disbursement/utilization of all funds under the Pork
purposes as may be hereafter directed by the President" Barrel System.
under Section 8 of Presidential Decree No. 910 and (2) "to The petitioner further argued that since he was designated in
the Information as a "proprietor," he was without criminal
finance the priority infrastructure development projects"
under Section 12 of Presidential Decree No. 1869, as This Decision is immediately executory but prospective in liability since "proprietors" are not among the corporate
amended by Presidential Decree No. 1993, for both failing effect. officers specifically enumerated in Section 28(f) of RA No.
8282 to be criminally liable for the violation of its provisions.
the sufficient standard test in violation of the principle of non-
delegability of legislative power. We rejected this argument based on our ruling in Garcia v.
SO ORDERED.
Social Security Commission Legal and Collection.1 We ruled
that to sustain the petitioner’s argument would be to allow
Accordingly, the Court‘s temporary injunction dated G.R. No. 183891 October 19, 2011 the unscrupulous to conveniently escape liability merely
September 10, 2013 is hereby declared to be PERMANENT. through the creative use of managerial titles.
Thus, the disbursement/release of the remaining PDAF
funds allocated for the year 2013, as well as for all previous ROMARICO J. MENDOZA, Petitioner,
years, and the funds sourced from (1) the Malampaya Funds vs. After taking into account the Indeterminate Penalty Law and
PEOPLE OF THE PHILIPPINES, Respondent. Article 315 of the Revised Penal Code, we MODIFIEDthe
under the phrase "and for such other purposes as may be
penalty originally imposed by the trial court2 and, instead,
hereafter directed by the President" pursuant to Section 8 of
Presidential Decree No. 910, and (2) the Presidential Social decreed the penalty of four (4) years and two (2) months
R E SO L U T I O N
Fund under the phrase "to finance the priority infrastructure of prision correccional, as minimum, to twenty (20) years
of reclusion temporal, as maximum.
In the present motion for reconsideration, the petitioner conviction was based on his admission that he failed to remit employees: (1) those delinquent employers who
points out that pending his appeal with the Court of Appeals his employees’ contribution to the SSS. pay within the six (6)-month period (the former group), and
(CA), he voluntarily paid the SSS the amount of ₱239,756.80 (2) those delinquent employers who pay outside of this
to settle his delinquency.3 Note that the petitioner also gave availment period (the latter group). The creation of these two
The petitioner cannot benefit from the terms of RA No. 9903,
notice of this payment to the CA via a Motion for classes is obvious and unavoidable when Section 2 and the
which condone only employers who pay their delinquencies
Reconsideration and a Motion for New Trial. Although the last proviso of Section 48 of the law are read together. The
within six months from the law’s effectivity
People did not contest the fact of voluntary payment, the CA same provisions show the law’s intent to limit the benefit of
nevertheless denied the said motions. condonation to the former group only; had RA No. 9903
We note that the petitioner does not ask for the reversal of likewise intended to benefit the latter group, which includes
his conviction based on the authority of RA No. 9903; he the petitioner, it would have expressly declared so. Laws
The present motion for reconsideration rests on the following
avoids making a straightforward claim because this law granting condonation constitute an act of benevolence on the
points:
plainly does not apply to him or to others in the same government’s part, similar to tax amnesty laws; their terms
situation. The clear intent of the law is to grant condonation are strictly construed against the applicants. Since the law
First. On January 7, 2010, during the pendency of only to employers with delinquent contributions or pending itself excludes the class of employers to which the petitioner
the petitioner’s case before the Court, then cases for their delinquencies and who pay their belongs, no ground exists to justify his acquittal. An
President Gloria Macapagal-Arroyo signed RA No. delinquencies within the six (6)-month period set by the law. implementing rule or regulation must conform to and be
9903 into law. RA No. 9903 mandates the effective Mere payment of unpaid contributions does not suffice; it is consistent with the provisions of the enabling statute; it
withdrawal of all pending cases against payment within, and only within, the six (6)-month availment cannot amend the law either by abridging or expanding its
employers who would remit their delinquent period that triggers the applicability of RA No. 9903. scope.9
contributions to the SSS within a specified
period, viz., within six months after the law’s
True, the petitioner’s case was pending with us when RA No. For the same reason, we cannot grant the petitioner’s prayer
effectivity.4 The petitioner claims that in view of RA
9903 was passed. Unfortunately for him, he paid his to impose a fine in lieu of imprisonment; neither RA No. 8282
No. 9903 and its implementing rules, the
delinquent SSS contributions in 2007. By paying outside of nor RA No. 9903 authorizes the Court to exercise this option.
settlement of his delinquent contributions in 2007
the availment period, the petitioner effectively placed himself
entitles him to an acquittal. He invokes the equal
outside the benevolent sphere of RA No. 9903. This is how
protection clause in support of his plea. On the matter of equal protection, we stated in Tolentino v.
the law is written: it condones employers — and only those
Board of Accountancy, et al.10 that the guarantee simply
employers — with unpaid SSS contributions or with pending
means "that no person or class of persons shall be denied
Second. The petitioner alternatively prays that cases who pay within the six (6)-month period following the
the same protection of the laws which is enjoyed by other
should the Court find his above argument wanting, law’s date of effectivity. Dura lex, sed lex.
persons or other classes in the same place and in like
he should still be acquitted since the prosecution
circumstances." In People v. Cayat,11 we further summarized
failed to prove all the elements of the crime
The petitioner’s awareness that RA No. 9903 operates as the jurisprudence on equal protection in this wise:
charged.
discussed above is apparent in his plea for equal protection.
In his motion, he states that
It is an established principle of constitutional law that the
Third. The petitioner prays that a fine be imposed,
guaranty of the equal protection of the laws is not violated by
not imprisonment, should he be found guilty.
[he] is entitled under the equal protection clause to the a legislation based on reasonable classification. And the
dismissal of the case against him since he had already paid classification, to be reasonable, (1) must rest on substantial
The Solicitor General filed a Manifestation In Lieu of the subject delinquent contributions due to the SSS which distinctions; (2) must be germane to the purposes of the law;
Comment and claims that the passage of RA No. 9903 accepted the payment as borne by the official receipt it (3) must not be limited to existing conditions only; and (4)
constituted a supervening event in the petitioner’s case that issued (please see Annex "A"). The equal protection clause must apply equally to all members of the same class.
supports the petitioner’s acquittal "[a]fter a conscientious requires that similar subjects, [sic] should not be treated
review of the case."5 differently, so as to give undue favor to some and unjustly
The difference in the dates of payment of delinquent
discriminate against others. The petitioner is no more no less
contributions provides a substantial distinction between the
in the same situation as the employer who would enjoy
THE COURT’S RULING two classes of employers. In limiting the benefits of RA No.
freedom from criminal prosecution upon payment in full of
9903 to delinquent employers who pay within the six (6)-
the delinquent contributions due and payable to the SSS
month period, the legislature refused to allow a sweeping,
The petitioner’s arguments supporting his prayer for acquittal within six months from the effectivity of Republic Act No.
non-discriminatory condonation to all delinquent employers,
fail to convince us. However, we find basis to allow waiver of 9903.6
lest the policy behind RA No. 8282 be undermined.1avvphi1
the petitioner’s liability for accrued penalties.
The Court cannot amplify the scope of RA No. 9903 on the
The petitioner is entitled to a waiver of his accrued penalties
The petitioner’s liability for the crime is a settled matter ground of equal protection, and acquit the petitioner and
other delinquent employers like him; it would in essence be
an amendment of RA No. 9903, an act of judicial legislation Despite our discussion above, the petitioner’s move to have
Upfront, we reject the petitioner’s claim that the prosecution
abjured by the trias politica principle.7 our Decision reconsidered is not entirely futile. The one
failed to prove all the elements of the crime charged. This is benefit the petitioner can obtain from RA No. 9903 is the
a matter that has been resolved in our Decision, and the waiver of his accrued penalties, which remain unpaid in the
petitioner did not raise anything substantial to merit the RA No. 9903 creates two classifications of employers
reversal of our finding of guilt. To reiterate, the petitioner’s delinquent in remitting the SSS contributions of their
amount of ₱181,394.29. This waiver is derived from the last BAI SANDRA S. A. SEMA, Petitioner, independent province, which is hereby created, to be known
proviso of Section 4 of RA No. 9903: vs. as the Province of Shariff Kabunsuan.
COMMISSION ON ELECTIONS and DIDAGEN P.
DILANGALEN, Respondents.
Provided, further, That for reason of equity, employers who xxxx
settled arrears in contributions before the effectivity of this
Act shall likewise have their accrued penalties waived. x - - - - - - - - - - - - - - - - - - - - - - -x
Sec. 5. The corporate existence of this province shall
commence upon the appointment by the Regional Governor
This proviso is applicable to the petitioner who settled his G.R. No. 178628 or election of the governor and majority of the regular
contributions long before the passage of the law. Applied to members of the Sangguniang Panlalawigan.
the petitioner, therefore, RA No. 9903 only works to allow
PERFECTO F. MARQUEZ, Petitioner,
a waiver of his accrued penalties, but not the reversal of his
vs. The incumbent elective provincial officials of the Province of
conviction.1avvphi1
COMMISSION ON ELECTIONS, Respondent. Maguindanao shall continue to serve their unexpired terms in
the province that they will choose or where they are
Referral to the Chief Executive for possible exercise of residents: Provided, that where an elective position in both
DECISION
executive clemency provinces becomes vacant as a consequence of the creation
of the Province of Shariff Kabunsuan, all incumbent elective
CARPIO, J.: provincial officials shall have preference for appointment to a
We realize that with the affirmation of the petitioner’s
higher elective vacant position and for the time being be
conviction for violation of RA No. 8282, he stands to suffer
appointed by the Regional Governor, and shall hold office
imprisonment for four (4) years and two (2) months of prision The Case
until their successors shall have been elected and qualified
correccional, as minimum, to twenty (20) years of reclusion
in the next local elections; Provided, further, that they shall
temporal, as maximum, notwithstanding the payment of his
delinquent contribution. These consolidated petitions1 seek to annul Resolution No. continue to receive the salaries they are receiving at the time
7902, dated 10 May 2007, of the Commission on Elections of the approval of this Act until the new readjustment of
(COMELEC) treating Cotabato City as part of the legislative salaries in accordance with law. Provided, furthermore, that
Under Article 5 of the Revised Penal Code,12 the courts are district of the Province of Shariff Kabunsuan.2 there shall be no diminution in the number of the members of
bound to apply the law as it is and impose the proper the Sangguniang Panlalawigan of the mother province.
penalty, no matter how harsh it might be. The same
provision, however, gives the Court the discretion to The Facts
Except as may be provided by national law, the existing
recommend to the President actions it deems appropriate
legislative district, which includes Cotabato as a part thereof,
but are beyond its power when it considers the penalty The Ordinance appended to the 1987 Constitution shall remain.
imposed as excessive. Although the petitioner was convicted apportioned two legislative districts for the Province of
under a special penal law, the Court is not precluded from Maguindanao. The first legislative district consists of
giving the Revised Penal Code suppletory application in light Cotabato City and eight municipalities.3 Maguindanao forms Later, three new municipalities6 were carved out of the
of Article 1013 of the same Code and our ruling in People v. part of the Autonomous Region in Muslim Mindanao original nine municipalities constituting Shariff Kabunsuan,
Simon.14 (ARMM), created under its Organic Act, Republic Act No. bringing its total number of municipalities to 11. Thus, what
6734 (RA 6734), as amended by Republic Act No. 9054 (RA was left of Maguindanao were the municipalities constituting
WHEREFORE, the Court PARTIALLY GRANTS petitioner 9054).4 Although under the Ordinance, Cotabato City forms its second legislative district. Cotabato City, although part of
part of Maguindanao’s first legislative district, it is not part of Maguindanao’s first legislative district, is not part of the
Romarico J. Mendoza’s motion for reconsideration. The
the ARMM but of Region XII, having voted against its Province of Maguindanao.
Court AFFIRMS the petitioner’s conviction for violation of
Section 22(a) and (d), in relation to Section 28 of Republic inclusion in the ARMM in the plebiscite held in November
1989.
Act No. 8282, and the petitioner is thus sentenced to an The voters of Maguindanao ratified Shariff Kabunsuan’s
indeterminate prison term of four (4) years and two (2) creation in a plebiscite held on 29 October 2006.
months of prision correccional, as minimum, to twenty (20) On 28 August 2006, the ARMM’s legislature, the ARMM
years of reclusion temporal, as maximum. In light of Section Regional Assembly, exercising its power to create provinces
On 6 February 2007, the Sangguniang Panlungsod of
4 of Republic Act No. 9903, the petitioner’s liability for under Section 19, Article VI of RA 9054,5 enacted Muslim Cotabato City passed Resolution No. 3999 requesting the
accrued penalties is considered WAIVED. Considering the Mindanao Autonomy Act No. 201 (MMA Act 201) creating COMELEC to "clarify the status of Cotabato City in view of
circumstances of the case, the Court transmits the case to the Province of Shariff Kabunsuan composed of the eight
the conversion of the First District of Maguindanao into a
the Chief Executive, through the Department of Justice, and municipalities in the first district of Maguindanao. MMA Act regular province" under MMA Act 201.
RECOMMENDS the grant of executive clemency to the 201 provides:
petitioner.
In answer to Cotabato City’s query, the COMELEC issued
Section 1. The Municipalities of Barira, Buldon, Datu Odin Resolution No. 07-0407 on 6 March 2007 "maintaining the
SO ORDERED. Sinsuat, Kabuntalan, Matanog, Parang, Sultan Kudarat, status quo with Cotabato City as part of Shariff Kabunsuan in
Sultan Mastura, and Upi are hereby separated from the
the First Legislative District of Maguindanao." Resolution No.
G.R. No. 177597 July 16, 2008 Province of Maguindanao and constituted into a distinct and 07-0407, which adopted the recommendation of the
COMELEC’s Law Department under a Memorandum dated No. 7902 because in her certificate of candidacy filed on 29 representative in the House of Representatives
27 February 2007,7 provides in pertinent parts: March 2007, Sema indicated that she was seeking election even in the absence of a national law; and
as representative of "Shariff Kabunsuan including Cotabato
City." Respondent Dilangalen added that COMELEC
Considering the foregoing, the Commission RESOLVED, as (3) Respondent Dilangalen answered the issue in
Resolution No. 7902 is constitutional because it did not
it hereby resolves, to adopt the recommendation of the Law the negative on the following grounds: (a) the
apportion a legislative district for Shariff Kabunsuan or
Department that pending the enactment of the "province" contemplated in Section 5 (3), Article VI
reapportion the legislative districts in Maguindanao but
appropriate law by Congress, to maintain the status quo of the Constitution is one that is created by an act
merely renamed Maguindanao’s first legislative district.
with Cotabato City as part of Shariff Kabunsuan in the First of Congress taking into account the provisions in
Respondent Dilangalen further claimed that the COMELEC
Legislative District of Maguindanao. (Emphasis supplied) RA 7160 on the creation of provinces; (b) Section
could not reapportion Maguindanao’s first legislative district
3, Article IV of RA 9054 withheld from the ARMM
to make Cotabato City its sole component unit as the power
Regional Assembly the power to enact measures
However, in preparation for the 14 May 2007 elections, the to reapportion legislative districts lies exclusively with
relating to national elections, which encompasses
COMELEC promulgated on 29 March 2007 Resolution No. Congress, not to mention that Cotabato City does not meet
the apportionment of legislative districts for
7845 stating that Maguindanao’s first legislative district is the minimum population requirement under Section 5 (3),
members of the House of Representatives; (c)
composed only of Cotabato City because of the enactment Article VI of the Constitution for the creation of a legislative
recognizing a legislative district in every province
of MMA Act 201.8 district within a city.13
the ARMM Regional Assembly creates will lead to
the disproportionate representation of the ARMM
On 10 May 2007, the COMELEC issued Resolution No. Sema filed a Consolidated Reply controverting the matters in the House of Representatives as the Regional
7902, subject of these petitions, amending Resolution No. raised in respondents’ Comments and reiterating her claim Assembly can create provinces without regard to
07-0407 by renaming the legislative district in question as that the COMELEC acted ultra vires in issuing Resolution the requirements in Section 461 of RA 7160; and
"Shariff Kabunsuan Province with Cotabato City (formerly No. 7902. (d) Cotabato City, which has a population of less
First District of Maguindanao with Cotabato City)."91avvphi1 than 250,000, is not entitled to a representative in
the House of Representatives.
In the Resolution of 4 September 2007, the Court required
In G.R. No. 177597, Sema, who was a candidate in the 14 the parties in G.R. No. 177597 to comment on the issue of
May 2007 elections for Representative of "Shariff Kabunsuan whether a province created by the ARMM Regional On 27 November 2007, the Court heard the parties in G.R.
with Cotabato City," prayed for the nullification of COMELEC Assembly under Section 19, Article VI of RA 9054 is entitled No. 177597 in oral arguments on the following issues: (1)
Resolution No. 7902 and the exclusion from canvassing of to one representative in the House of Representatives whether Section 19, Article VI of RA 9054, delegating to the
the votes cast in Cotabato City for that office. Sema without need of a national law creating a legislative district ARMM Regional Assembly the power to create provinces, is
contended that Shariff Kabunsuan is entitled to one for such new province. The parties submitted their constitutional; and (2) if in the affirmative, whether a province
representative in Congress under Section 5 (3), Article VI of compliance as follows: created under Section 19, Article VI of RA 9054 is entitled to
the Constitution10 and Section 3 of the Ordinance appended one representative in the House of Representatives without
to the Constitution.11 Thus, Sema asserted that the need of a national law creating a legislative district for such
(1) Sema answered the issue in the affirmative on
COMELEC acted without or in excess of its jurisdiction in new province.15
the following grounds: (a) the Court in Felwa v.
issuing Resolution No. 7902 which maintained the status quo
Salas14stated that "when a province is created by
in Maguindanao’s first legislative district despite the
statute, the corresponding representative district In compliance with the Resolution dated 27 November 2007,
COMELEC’s earlier directive in Resolution No. 7845
comes into existence neither by authority of that the parties in G.R. No. 177597 filed their respective
designating Cotabato City as the lone component of
statute — which cannot provide otherwise — nor Memoranda on the issues raised in the oral arguments. 16 On
Maguindanao’s reapportioned first legislative district.12 Sema
by apportionment, but by operation of the the question of the constitutionality of Section 19, Article VI
further claimed that in issuing Resolution No. 7902, the
Constitution, without a reapportionment"; (b) of RA 9054, the parties in G.R. No. 177597 adopted the
COMELEC usurped Congress’ power to create or
Section 462 of Republic Act No. 7160 (RA 7160) following positions:
reapportion legislative districts.
"affirms" the apportionment of a legislative district
incident to the creation of a province; and (c)
(1) Sema contended that Section 19, Article VI of
In its Comment, the COMELEC, through the Office of the Section 5 (3), Article VI of the Constitution and
RA 9054 is constitutional (a) as a valid delegation
Solicitor General (OSG), chose not to reach the merits of the Section 3 of the Ordinance appended to the
by Congress to the ARMM of the power to create
case and merely contended that (1) Sema wrongly availed of Constitution mandate the apportionment of a
provinces under Section 20 (9), Article X of the
the writ of certiorari to nullify COMELEC Resolution No. 7902 legislative district in newly created provinces.
Constitution granting to the autonomous regions,
because the COMELEC issued the same in the exercise of
through their organic acts, legislative powers over
its administrative, not quasi-judicial, power and (2) Sema’s
(2) The COMELEC, again represented by the "other matters as may be authorized by law for the
prayer for the writ of prohibition in G.R. No. 177597 became
OSG, apparently abandoned its earlier stance on promotion of the general welfare of the people of
moot with the proclamation of respondent Didagen P.
the propriety of issuing Resolution Nos. 07-0407 the region" and (b) as an amendment to Section 6
Dilangalen (respondent Dilangalen) on 1 June 2007 as
and 7902 and joined causes with Sema, of RA 7160.17 However, Sema concedes that, if
representative of the legislative district of Shariff Kabunsuan
contending that Section 5 (3), Article VI of the taken literally, the grant in Section 19, Article VI of
Province with Cotabato City.
Constitution is "self-executing." Thus, every new RA 9054 to the ARMM Regional Assembly of the
province created by the ARMM Regional power to "prescribe standards lower than those
In his Comment, respondent Dilangalen countered that Assembly is ipso facto entitled to one mandated" in RA 7160 in the creation of provinces
Sema is estopped from questioning COMELEC Resolution contravenes Section 10, Article X of the
Constitution.18 Thus, Sema proposed that Section The petitions raise the following issues: On the Preliminary Matters
19 "should be construed as prohibiting the
Regional Assembly from prescribing standards x x
I. In G.R. No. 177597: The Writ of Prohibition is Appropriate
x that do not comply with the minimum criteria"
to Test the Constitutionality of
under RA 7160.19
Election Laws, Rules and Regulations
(A) Preliminarily –
(2) Respondent Dilangalen contended that Section
The purpose of the writ of Certiorari is to correct grave abuse
19, Article VI of RA 9054 is unconstitutional on the (1) whether the writs of Certiorari,
of discretion by "any tribunal, board, or officer exercising
following grounds: (a) the power to create Prohibition, and Mandamus are proper
judicial or quasi-judicial functions."21 On the other hand, the
provinces was not among those granted to the to test the constitutionality of COMELEC
writ of Mandamus will issue to compel a tribunal, corporation,
autonomous regions under Section 20, Article X of Resolution No. 7902; and
board, officer, or person to perform an act "which the law
the Constitution and (b) the grant under Section
specifically enjoins as a duty."22 True, the COMELEC did not
19, Article VI of RA 9054 to the ARMM Regional
(2) whether the proclamation of issue Resolution No. 7902 in the exercise of its judicial or
Assembly of the power to prescribe standards
respondent Dilangalen as representative quasi-judicial functions.23 Nor is there a law which specifically
lower than those mandated in Section 461 of RA
of Shariff Kabunsuan Province with enjoins the COMELEC to exclude from canvassing the votes
7160 on the creation of provinces contravenes
Cotabato City mooted the petition in cast in Cotabato City for representative of "Shariff
Section 10, Article X of the Constitution and the
G.R. No. 177597. Kabunsuan Province with Cotabato City." These, however,
Equal Protection Clause; and
do not justify the outright dismissal of the petition in G.R. No.
177597 because Sema also prayed for the issuance of the
(B) On the merits –
(3) The COMELEC, through the OSG, joined writ of Prohibition and we have long recognized this writ as
causes with respondent Dilangalen (thus proper for testing the constitutionality of election laws, rules,
effectively abandoning the position the COMELEC (1) whether Section 19, Article VI of RA and regulations.24
adopted in its Compliance with the Resolution of 4 9054, delegating to the ARMM Regional
September 2007) and contended that Section 19, Assembly the power to create provinces, Respondent Dilangalen’s Proclamation
Article VI of RA 9054 is unconstitutional because cities, municipalities and barangays, is Does Not Moot the Petition
(a) it contravenes Section 10 and Section constitutional; and
6,20 Article X of the Constitution and (b) the power
to create provinces was withheld from the There is also no merit in the claim that respondent
autonomous regions under Section 20, Article X of (2) if in the affirmative, whether a Dilangalen’s proclamation as winner in the 14 May 2007
the Constitution. province created by the ARMM Regional
elections for representative of "Shariff Kabunsuan Province
Assembly under MMA Act 201 pursuant with Cotabato City" mooted this petition. This case does not
to Section 19, Article VI of RA 9054 is concern respondent Dilangalen’s election. Rather, it involves
On the question of whether a province created under Section entitled to one representative in the an inquiry into the validity of COMELEC Resolution No.
19, Article VI of RA 9054 is entitled to one representative in House of Representatives without need 7902, as well as the constitutionality of MMA Act 201 and
the House of Representatives without need of a national law of a national law creating a legislative Section 19, Article VI of RA 9054. Admittedly, the outcome of
creating a legislative district for such new province, Sema district for such province. this petition, one way or another, determines whether the
and respondent Dilangalen reiterated in their Memoranda the
votes cast in Cotabato City for representative of the district of
positions they adopted in their Compliance with the
II. In G.R No. 177597 and G.R No. 178628, "Shariff Kabunsuan Province with Cotabato City" will be
Resolution of 4 September 2007. The COMELEC deemed it
whether COMELEC Resolution No. 7902 is valid included in the canvassing of ballots. However, this
unnecessary to submit its position on this issue considering
for maintaining the status quo in the first legislative incidental consequence is no reason for us not to proceed
its stance that Section 19, Article VI of RA 9054 is
district of Maguindanao (as "Shariff Kabunsuan with the resolution of the novel issues raised here. The
unconstitutional.
Province with Cotabato City [formerly First District Court’s ruling in these petitions affects not only the recently
of Maguindanao with Cotabato City]"), despite the concluded elections but also all the other succeeding
The pendency of the petition in G.R. No. 178628 was creation of the Province of Shariff Kabunsuan out elections for the office in question, as well as the power of
disclosed during the oral arguments on 27 November 2007. of such district (excluding Cotabato City). the ARMM Regional Assembly to create in the future
Thus, in the Resolution of 19 February 2008, the Court additional provinces.
ordered G.R. No. 178628 consolidated with G.R. No.
177597. The petition in G.R. No. 178628 echoed Sema's The Ruling of the Court
On the Main Issues
contention that the COMELEC acted ultra vires in issuing
Whether the ARMM Regional Assembly
Resolution No. 7902 depriving the voters of Cotabato City of The petitions have no merit. We rule that (1) Can Create the Province of Shariff Kabunsuan
a representative in the House of Representatives. In its Section 19, Article VI of RA 9054 is
Comment to the petition in G.R. No. 178628, the COMELEC, unconstitutional insofar as it grants to the ARMM
through the OSG, maintained the validity of COMELEC Regional Assembly the power to create provinces The creation of local government units is governed by
Resolution No. 7902 as a temporary measure pending the and cities; (2) MMA Act 201 creating the Province Section 10, Article X of the Constitution, which provides:
enactment by Congress of the "appropriate law." of Shariff Kabunsuan is void; and (3) COMELEC
Resolution No. 7902 is valid. Sec. 10. No province, city, municipality, or barangay may be
The Issues created, divided, merged, abolished or its boundary
substantially altered except in accordance with the criteria Clearly, a province cannot be created without a legislative reapportionment of legislative districts based on
established in the local government code and subject to district because it will violate Section 5 (3), Article VI of the the standards provided in this section. (Emphasis
approval by a majority of the votes cast in a plebiscite in the Constitution as well as Section 3 of the Ordinance appended supplied)
political units directly affected. to the Constitution. For the same reason, a city with a
population of 250,000 or more cannot also be created
Section 5 (1), Article VI of the Constitution vests in Congress
without a legislative district. Thus, the power to create a
Thus, the creation of any of the four local government units – the power to increase, through a law, the allowable
province, or a city with a population of 250,000 or more,
province, city, municipality or barangay – must comply with membership in the House of Representatives. Section 5 (4)
requires also the power to create a legislative district. Even
three conditions. First, the creation of a local government empowers Congress to reapportion legislative districts. The
the creation of a city with a population of less than 250,000
unit must follow the criteria fixed in the Local Government power to reapportion legislative districts necessarily includes
involves the power to create a legislative district because
Code. Second, such creation must not conflict with any the power to create legislative districts out of existing ones.
once the city’s population reaches 250,000, the city
provision of the Constitution. Third, there must be a Congress exercises these powers through a law that
automatically becomes entitled to one representative under
plebiscite in the political units affected. Congress itself enacts, and not through a law that regional or
Section 5 (3), Article VI of the Constitution and Section 3 of
local legislative bodies enact. The allowable membership of
the Ordinance appended to the Constitution. Thus, the
the House of Representatives can be increased, and new
There is neither an express prohibition nor an express grant power to create a province or city inherently involves the
legislative districts of Congress can be created, only through
of authority in the Constitution for Congress to delegate to power to create a legislative district.
a national law passed by Congress. In Montejo v.
regional or local legislative bodies the power to create local
COMELEC,29 we held that the "power of redistricting x x x is
government units. However, under its plenary legislative
For Congress to delegate validly the power to create a traditionally regarded as part of the power (of Congress) to
powers, Congress can delegate to local legislative bodies
province or city, it must also validly delegate at the same make laws," and thus is vested exclusively in Congress.
the power to create local government units, subject to
time the power to create a legislative district. The threshold
reasonable standards and provided no conflict arises with
issue then is, can Congress validly delegate to the ARMM
any provision of the Constitution. In fact, Congress has This textual commitment to Congress of the exclusive power
Regional Assembly the power to create legislative districts
delegated to provincial boards, and city and municipal to create or reapportion legislative districts is logical.
for the House of Representatives? The answer is in the
councils, the power to create barangays within their Congress is a national legislature and any increase in its
negative.
jurisdiction,25 subject to compliance with the criteria allowable membership or in its incumbent membership
established in the Local Government Code, and the through the creation of legislative districts must be embodied
plebiscite requirement in Section 10, Article X of the Legislative Districts are Created or Reapportioned in a national law. Only Congress can enact such a law. It
Constitution. However, under the Local Government Code, Only by an Act of Congress would be anomalous for regional or local legislative bodies to
"only x x x an Act of Congress" can create provinces, cities create or reapportion legislative districts for a national
or municipalities.261avvphi1 legislature like Congress. An inferior legislative body, created
Under the present Constitution, as well as in
by a superior legislative body, cannot change the
past28 Constitutions, the power to increase the allowable
membership of the superior legislative body.
Under Section 19, Article VI of RA 9054, Congress membership in the House of Representatives, and to
delegated to the ARMM Regional Assembly the power to reapportion legislative districts, is vested exclusively in
create provinces, cities, municipalities and barangays within Congress. Section 5, Article VI of the Constitution provides: The creation of the ARMM, and the grant of legislative
the ARMM. Congress made the delegation under its plenary powers to its Regional Assembly under its organic act, did
legislative powers because the power to create local not divest Congress of its exclusive authority to create
SECTION 5. (1) The House of Representatives shall be
government units is not one of the express legislative powers legislative districts. This is clear from the Constitution and
composed of not more than two hundred and fifty
granted by the Constitution to regional legislative bodies.27 In the ARMM Organic Act, as amended. Thus, Section 20,
members, unless otherwise fixed by law, who shall be
the present case, the question arises whether the delegation Article X of the Constitution provides:
elected from legislative districts apportioned among the
to the ARMM Regional Assembly of the power to create
provinces, cities, and the Metropolitan Manila area in
provinces, cities, municipalities and barangays conflicts with
accordance with the number of their respective inhabitants, SECTION 20. Within its territorial jurisdiction and subject to
any provision of the Constitution.
and on the basis of a uniform and progressive ratio, and the provisions of this Constitution and national laws, the
those who, as provided by law, shall be elected through a organic act of autonomous regions shall provide for
There is no provision in the Constitution that conflicts with party-list system of registered national, regional, and sectoral legislative powers over:
the delegation to regional legislative bodies of the power to parties or organizations.
create municipalities and barangays, provided Section 10,
(1) Administrative organization;
Article X of the Constitution is followed. However, the
xxxx
creation of provinces and cities is another matter. Section 5
(3), Article VI of the Constitution provides, "Each city with a (2) Creation of sources of revenues;
population of at least two hundred fifty thousand, or each (3) Each legislative district shall comprise, as far
province, shall have at least one representative" in the as practicable, contiguous, compact, and adjacent
House of Representatives. Similarly, Section 3 of the (3) Ancestral domain and natural resources;
territory. Each city with a population of at least two
Ordinance appended to the Constitution provides, "Any hundred fifty thousand, or each province, shall
province that may hereafter be created, or any city whose have at least one representative. (4) Personal, family, and property relations;
population may hereafter increase to more than two hundred
fifty thousand shall be entitled in the immediately following
election to at least one Member x x x." (4) Within three years following the return of every (5) Regional urban and rural planning
census, the Congress shall make a development;
(6) Economic, social, and tourism development; Except as may be provided by national law, the existing new provinces, was unconstitutional for "creati[ng]
legislative district, which includes Cotabato City as a part congressional districts without the apportionment provided in
thereof, shall remain. (Emphasis supplied) the Constitution." The Court answered in the negative, thus:
(7) Educational policies;

However, a province cannot legally be created without a The Constitution ordains:


(8) Preservation and development of the cultural
legislative district because the Constitution mandates that
heritage; and
"each province shall have at least one representative." Thus,
"The House of Representatives shall be composed of not
the creation of the Province of Shariff Kabunsuan without a
more than one hundred and twenty Members who shall be
(9) Such other matters as may be authorized by legislative district is unconstitutional.
apportioned among the several provinces as nearly as may
law for the promotion of the general welfare of the
be according to the number of their respective inhabitants,
people of the region.
Sema, petitioner in G.R. No. 177597, contends that Section but each province shall have at least one Member. The
5 (3), Article VI of the Constitution, which provides: Congress shall by law make an apportionment within three
Nothing in Section 20, Article X of the Constitution years after the return of every enumeration, and not
authorizes autonomous regions, expressly or impliedly, otherwise. Until such apportionment shall have been made,
Each legislative district shall comprise, as far as practicable,
to create or reapportion legislative districts for the House of Representatives shall have the same number
contiguous, compact, and adjacent territory. Each city with a
Congress. of Members as that fixed by law for the National Assembly,
population of at least two hundred fifty thousand, or each
who shall be elected by the qualified electors from the
province, shall have at least one representative. (Emphasis
present Assembly districts. Each representative district shall
On the other hand, Section 3, Article IV of RA 9054 supplied)
comprise as far as practicable, contiguous and compact
amending the ARMM Organic Act, provides, "The Regional
territory."
Assembly may exercise legislative power x x x except on
and Section 3 of the Ordinance appended to the
the following matters: x x x (k) National elections. x x x."
Constitution, which states:
Since the ARMM Regional Assembly has no legislative Pursuant to this Section, a representative district may
power to enact laws relating to national elections, it cannot come into existence: (a) indirectly, through the creation
create a legislative district whose representative is elected in Any province that may hereafter be created, or any city of a province — for "each province shall have at least
national elections. Whenever Congress enacts a law whose population may hereafter increase to more than two one member" in the House of Representatives; or (b) by
creating a legislative district, the first representative is always hundred fifty thousand shall be entitled in the immediately direct creation of several representative districts within
elected in the "next national elections" from the effectivity of following election to at least one Member or such a province. The requirements concerning the apportionment
the law.30 number of Members as it may be entitled to on the basis of representative districts and the territory thereof refer only
of the number of its inhabitants and according to the to the second method of creation of representative districts,
standards set forth in paragraph (3), Section 5 of Article and do not apply to those incidental to the creation of
Indeed, the office of a legislative district representative to provinces, under the first method. This is deducible, not only
VI of the Constitution. The number of Members
Congress is a national office, and its occupant, a Member
apportioned to the province out of which such new province from the general tenor of the provision above quoted, but,
of the House of Representatives, is a national official.31 It
was created or where the city, whose population has so also, from the fact that the apportionment therein alluded to
would be incongruous for a regional legislative body like the refers to that which is made by an Act of Congress. Indeed,
increased, is geographically located shall be correspondingly
ARMM Regional Assembly to create a national office when when a province is created by statute, the corresponding
adjusted by the Commission on Elections but such
its legislative powers extend only to its regional territory. The representative district, comes into existence neither by
adjustment shall not be made within one hundred and twenty
office of a district representative is maintained by national
days before the election. (Emphasis supplied) authority of that statute — which cannot provide otherwise —
funds and the salary of its occupant is paid out of national nor by apportionment, but by operation of the Constitution,
funds. It is a self-evident inherent limitation on the legislative without a reapportionment.
powers of every local or regional legislative body that it can serve as bases for the conclusion that the Province of Shariff
only create local or regional offices, respectively, and it can Kabunsuan, created on 29 October 2006, is automatically
never create a national office. entitled to one member in the House of Representatives in There is no constitutional limitation as to the time when,
the 14 May 2007 elections. As further support for her stance, territory of, or other conditions under which a province may
petitioner invokes the statement in Felwa that "when a be created, except, perhaps, if the consequence thereof
To allow the ARMM Regional Assembly to create a national were to exceed the maximum of 120 representative districts
province is created by statute, the corresponding
office is to allow its legislative powers to operate outside the prescribed in the Constitution, which is not the effect of the
representative district comes into existence neither by
ARMM’s territorial jurisdiction. This violates Section 20,
authority of that statute — which cannot provide otherwise — legislation under consideration. As a matter of fact, provinces
Article X of the Constitution which expressly limits the have been created or subdivided into other provinces, with
nor by apportionment, but by operation of the Constitution,
coverage of the Regional Assembly’s legislative powers the consequent creation of additional representative districts,
without a reapportionment."
"[w]ithin its territorial jurisdiction x x x."
without complying with the aforementioned
requirements.32 (Emphasis supplied)
The contention has no merit.
The ARMM Regional Assembly itself, in creating Shariff
Kabunsuan, recognized the exclusive nature of Congress’
Thus, the Court sustained the constitutionality of RA 4695
power to create or reapportion legislative districts by First. The issue in Felwa, among others, was whether because (1) it validly created legislative districts
abstaining from creating a legislative district for Shariff Republic Act No. 4695 (RA 4695), creating the provinces of "indirectly" through a special law enacted by
Kabunsuan. Section 5 of MMA Act 201 provides that: Benguet, Mountain Province, Ifugao, and Kalinga-Apayao Congress creating a province and (2) the creation of the
and providing for congressional representation in the old and legislative districts will not result in breaching the maximum
number of legislative districts provided under the 1935 (2) The proportional representation in the House of Without law passed by Congress, yes, Your Honor, that is
Constitution. Felwa does not apply to the present case Representatives based on one representative for what we are saying.
because in Felwa the new provinces were created by at least every 250,000 residents will be negated
a national law enacted by Congress itself. Here, the new because the ARMM Regional Assembly need not
xxxx
province was created merely by a regional law enacted by comply with the requirement in Section 461(a)(ii)
the ARMM Regional Assembly. of RA 7160 that every province created must have
a population of at least 250,000; and Justice Carpio:
What Felwa teaches is that the creation of a legislative
district by Congress does not emanate alone from Congress’ (3) Representatives from the ARMM provinces can So, they can also create one thousand (1000) new
power to reapportion legislative districts, but also from become the majority in the House of provinces, sen[d] one thousand (1000) representatives to the
Congress’ power to create provinces which cannot be Representatives through the ARMM Regional House of Representatives without a national law[,] that is
created without a legislative district. Thus, when a province Assembly’s continuous creation of provinces or legally possible, correct?
is created, a legislative district is created by operation of the cities within the ARMM.
Constitution because the Constitution provides that "each
province shall have at least one representative" in the House Atty. Vistan II:
The following exchange during the oral arguments of the
of Representatives. This does not detract from the
petition in G.R. No. 177597 highlights the absurdity of
constitutional principle that the power to create legislative Yes, Your Honor.36 (Emphasis supplied)
Sema’s position that the ARMM Regional Assembly can
districts belongs exclusively to Congress. It merely prevents
create provinces:
any other legislative body, except Congress, from creating
provinces because for a legislative body to create a province Neither the framers of the 1987 Constitution in adopting the
such legislative body must have the power to create provisions in Article X on regional autonomy,37 nor Congress
Justice Carpio:
legislative districts. In short, only an act of Congress can in enacting RA 9054, envisioned or intended these
trigger the creation of a legislative district by operation of the disastrous consequences that certainly would wreck the tri-
Constitution. Thus, only Congress has the power to create, So, you mean to say [a] Local Government can create branch system of government under our Constitution.
or trigger the creation of, a legislative district. legislative district[s] and pack Congress with their own Clearly, the power to create or reapportion legislative
representatives [?] districts cannot be delegated by Congress but must be
exercised by Congress itself. Even the ARMM Regional
Moreover, if as Sema claims MMA Act 201 apportioned a Assembly recognizes this.
legislative district to Shariff Kabunsuan upon its creation, this Atty. Vistan II:35
will leave Cotabato City as the lone component of the first
legislative district of Maguindanao. However, Cotabato City The Constitution empowered Congress to create or
Yes, Your Honor, because the Constitution allows that.
cannot constitute a legislative district by itself because as of reapportion legislative districts, not the regional assemblies.
the census taken in 2000, it had a population of only Section 3 of the Ordinance to the Constitution which states,
163,849. To constitute Cotabato City alone as the surviving Justice Carpio: "[A]ny province that may hereafter be created x x x shall be
first legislative district of Maguindanao will violate Section 5 entitled in the immediately following election to at least one
(3), Article VI of the Constitution which requires that "[E]ach Member," refers to a province created by Congress itself
So, [the] Regional Assembly of [the] ARMM can create and
city with a population of at least two hundred fifty thousand x through a national law. The reason is that the creation of a
create x x x provinces x x x and, therefore, they can have
x x, shall have at least one representative." province increases the actual membership of the House of
thirty-five (35) new representatives in the House of
Representatives, an increase that only Congress can decide.
Representatives without Congress agreeing to it, is that what
Incidentally, in the present 14th Congress, there are
Second. Sema’s theory also undermines the composition you are saying? That can be done, under your theory[?]
21938 district representatives out of the maximum 250 seats
and independence of the House of Representatives. Under in the House of Representatives. Since party-list members
Section 19,33 Article VI of RA 9054, the ARMM Regional Atty. Vistan II: shall constitute 20 percent of total membership of the House,
Assembly can create provinces and cities within the ARMM there should at least be 50 party-list seats available in every
with or without regard to the criteria fixed in Section 461 of election in case 50 party-list candidates are proclaimed
RA 7160, namely: minimum annual income of ₱20,000,000, Yes, Your Honor, under the correct factual circumstances. winners. This leaves only 200 seats for district
and minimum contiguous territory of 2,000 square kilometers representatives, much less than the 219 incumbent district
or minimum population of 250,000.34The following scenarios Justice Carpio: representatives. Thus, there is a need now for Congress to
thus become distinct possibilities: increase by law the allowable membership of the House,
even before Congress can create new provinces.
Under your theory, the ARMM legislature can create thirty-
(1) An inferior legislative body like the ARMM five (35) new provinces, there may be x x x [only] one
Regional Assembly can create 100 or more hundred thousand (100,000) [population], x x x, and they will It is axiomatic that organic acts of autonomous regions
provinces and thus increase the membership of a each have one representative x x x to Congress without any cannot prevail over the Constitution. Section 20, Article X of
superior legislative body, the House of national law, is that what you are saying? the Constitution expressly provides that the legislative
Representatives, beyond the maximum limit of 250 powers of regional assemblies are limited "[w]ithin its
fixed in the Constitution (unless a national law territorial jurisdiction and subject to the provisions of
provides otherwise); Atty. Vistan II: the Constitution and national laws, x x x." The Preamble
of the ARMM Organic Act (RA 9054) itself states that the
ARMM Government is established "within the framework of creating the Province of Shariff Kabunsuan. Consequently, xxxx
the Constitution." This follows Section 15, Article X of the we rule that COMELEC Resolution No. 7902 is VALID.
Constitution which mandates that the ARMM "shall be
(i) To provide for an orderly and transparent
created x x x within the framework of this
Let a copy of this ruling be served on the President of the privatization of the assets and liabilities of the
Constitution and the national sovereignty as well as
Senate and the Speaker of the House of Representatives. National Power Corporation (NPC);
territorial integrity of the Republic of the Philippines."

SO ORDERED. xxxx
The present case involves the creation of a local government
unit that necessarily involves also the creation of a legislative
district. The Court will not pass upon the constitutionality of G.R. No. 156208 September 26, 2006 Section 3. Scope. – This Act shall provide a
the creation of municipalities and barangays that does not framework for the restructuring of the electric
comply with the criteria established in Section 461 of RA power industry, including the privatization of the
NPC DRIVERS AND MECHANICS ASSOCIATION, (NPC
7160, as mandated in Section 10, Article X of the assets of NPC, the transition to the desired
DAMA), represented by Its President ROGER S. SAN
Constitution, because the creation of such municipalities and competitive structure, and the definition of the
JUAN, SR., NPC EMPLOYEES & WORKERS UNION
barangays does not involve the creation of legislative responsibilities of the various government
(NEWU) – NORTHERN LUZON REGIONAL CENTER,
districts. We leave the resolution of this issue to an agencies and private entities.1
represented by its Regional President JIMMY D.
appropriate case.
SALMAN, in their own individual capacities and in behalf
of the members of the associations and all affected Under the EPIRA Law,2 a new National Power Board of
In summary, we rule that Section 19, Article VI of RA 9054, officers and employees of National Power Corporation Directors was constituted composed of the Secretary of
insofar as it grants to the ARMM Regional Assembly the (NPC), ZOL D. MEDINA, NARCISO M. MAGANTE, Finance as Chairman, with the Secretary of Energy, the
power to create provinces and cities, is void for being VICENTE B. CIRIO, JR., NECITAS B. CAMAMA, in their Secretary of Budget and Management, the Secretary of
contrary to Section 5 of Article VI and Section 20 of Article X individual capacities as employees of National Power Agriculture, the Director-General of the National Economic
of the Constitution, as well as Section 3 of the Ordinance Corporation, petitioners, and Development Authority, the Secretary of Environment
appended to the Constitution. Only Congress can create vs. and Natural Resources, the Secretary of Interior and Local
provinces and cities because the creation of provinces and THE NATIONAL POWER CORPORATION (NPC), Government, the Secretary of the Department of Trade and
cities necessarily includes the creation of legislative districts, NATIONAL POWER BOARD OF DIRECTORS (NPB), Industry, and the President of the National Power
a power only Congress can exercise under Section 5, Article JOSE ISIDRO N. CAMACHO as Chairman of the National Corporation as members.
VI of the Constitution and Section 3 of the Ordinance Power Board of Directors (NPB), ROLANDO S. QUILALA,
appended to the Constitution. The ARMM Regional as President – Officer-in-charge/CEO of National Power
Assembly cannot create a province without a legislative On 27 February 2002, the Secretary of the Department of
Corporation and Member of National Power Board, and
district because the Constitution mandates that every Energy (DOE) promulgated the Implementing Rules and
VINCENT S. PEREZ, JR., EMILIA T. BONCODIN, MARIUS
province shall have a legislative district. Moreover, the Regulations (IRR) of the EPIRA Law, pursuant to Section
P. CORPUS, RUBEN S. REINOSO, JR., GREGORY L.
ARMM Regional Assembly cannot enact a law creating a 773 thereof. Said IRR were approved by the Joint
DOMINGO and NIEVES L. OSORIO, respondents.
Congressional Power Commission on even date. Meanwhile,
national office like the office of a district representative of
Congress because the legislative powers of the ARMM also in pursuant to the provisions of the EPIRA Law, the
Regional Assembly operate only within its territorial DECISION DOE created the Energy Restructuring Steering Committee
(Restructuring Committee) to manage the privatization and
jurisdiction as provided in Section 20, Article X of the
Constitution. Thus, we rule that MMA Act 201, enacted by restructuring of the NPC, the National Transmission
CHICO-NAZARIO, J.:
the ARMM Regional Assembly and creating the Province of Corporation (TRANSCO), and the Power Sector Assets and
Liabilities Corporation (PSALM).
Shariff Kabunsuan, is void.
Before Us is a special civil action for Injunction to enjoin
public respondents from implementing the National Power
Resolution No. 7902 Complies with the Constitution To serve as the overall organizational framework for the
Board (NPB) Resolutions No. 2002-124 and No. 2002-125,
realigned functions of the NPC mandated under the EPIRA
both dated 18 November 2002, directing, among other
Law, the Restructuring Committee proposed a new NPC
Consequently, we hold that COMELEC Resolution No. 7902, things, the termination of all employees of the National
Table of Organization which was approved by the NPB
preserving the geographic and legislative district of the First Power Corporation (NPC) on 31 January 2003 in line with
through NPB Resolution No. 2002-53 dated 11 April 2002.
the restructuring of the NPC.
District of Maguindanao with Cotabato City, is valid as it Likewise, the Restructuring Committee reviewed the
merely complies with Section 5 of Article VI and Section 20 proposed 2002 NPC Restructuring Plan and assisted in the
of Article X of the Constitution, as well as Section 1 of the On 8 June 2001, Republic Act No. 9136, otherwise known as implementation of Phase I (Realignment) of said Plan, and
Ordinance appended to the Constitution. the "Electric Power Industry Reform Act of 2001" (EPIRA thereafter recommended to the NPB for approval the
Law), was approved and signed into law by President Gloria adoption of measures pertaining to the separation and hiring
Macapagal-Arroyo, and took effect on 26 June 2001. Section of NPC personnel. The NPB, taking into consideration the
WHEREFORE, we declare Section 19, Article VI of Republic
2(i) and Section 3 of the EPIRA Law states: recommendation of the Restructuring Committee, thus
Act No. 9054 UNCONSTITUTIONAL insofar as it grants to
amended the Restructuring Plan approved under NPB
the Regional Assembly of the Autonomous Region in Muslim
Resolution No. 2002-53.
Mindanao the power to create provinces and cities. Thus, we Section 2. Declaration of Policy. – It is hereby
declare VOID Muslim Mindanao Autonomy Act No. 201 declared the policy of the State:
On 18 November 2002, pursuant to Section 634 of the petitioners conclude that the questioned Resolutions have claim that the validity of such administrative practice
EPIRA Law and Rule 335 of the IRR, the NPB passed NPB been illegally issued as it were not issued by a duly whereby an authority is exercised by persons or
Resolution No. 2002-124 which provided for the Guidelines constituted board since no quorum existed because only subordinates appointed by the responsible official has long
on the Separation Program of the NPC and the Selection three of the nine members, as provided under Section 48 of been settled. Respondents further contend that Section 48 of
and Placement of Personnel in the NPC Table of the EPIRA Law, were present and qualified to sit and vote. the EPIRA Law does not in any way prohibit any member of
Organization. Under said Resolution, all NPC personnel shall the NPB from authorizing his representative to sign
be legally terminated on 31 January 2003, and shall be resolutions adopted by the Board.
It is petitioners' submission that even
entitled to separation benefits. On the same day, the NPB
assuming arguendo that there was no undue delegation of
approved NPB Resolution No. 2002-125, whereby a
power to the four representatives who signed the assailed From the arguments put forward by herein parties, it is
Transition Team was constituted to manage and implement
Resolutions, said Resolutions cannot still be given legal evident that the pivotal issue to be resolved in this Petition
the NPC's Separation Program.
effect because the same did not comply with the mandatory for Injunction is whether or not NPB Resolutions No. 2002-
requirement of endorsement by the Joint Congressional 124 and No. 2002-125 were properly enacted. It is
In a Memorandum dated 21 November 2002, the NPC OIC- Power Commission and approval of the President of the petitioners' contention that the failure of the four specifically
President and CEO Rolando S. Quilala circulated the Philippines, as provided under Section 47 of the EPIRA Law identified department heads7 under Section 48 of the EPIRA
assailed Resolutions and directed the concerned NPC which states that: Law to personally approve and sign the assailed Resolutions
officials to disseminate and comply with said Resolutions invalidates the adoption of said Resolutions. Petitioners
and implement the same within the period provided for in the maintain that there was undue delegation of delegated
Section 47. NPC Privatization. – Except for the
timetable set in NPB Resolution No. 2002-125. As a result power when only the representatives of certain members of
assets of SPUG, the generation assets, real
thereof, Mr. Paquito F. Garcia, Manager – HRSD and the NPB attended the board meetings and passed and
estate, and other disposable assets as well as IPP
Resources and Administration Coordinator of NPC, signed the questioned Resolutions.
contracts of NPC shall be privatized in accordance
circulated a Memorandum dated 22 November 2002 to all
with this Act. Within six (6) months from effectivity
NPC officials and employees providing for a checklist of the
of this Act, the PSALM Corp. shall submit a plan We agree with petitioners. In enumerating under Section 48
documents required for securing clearances for the
for the endorsement by the Joint Congressional those who shall compose the National Power Board of
processing of separation benefits of all employees who shall
Power Commission and the approval of the Directors, the legislature has vested upon these persons the
be terminated under the Restructuring Plan.
President of the Philippines, on the total power to exercise their judgment and discretion in running
privatization of the generation assets, real estate, the affairs of the NPC. Discretion may be defined as "the act
Contending that the assailed NPB Resolutions are void and other disposable assets as well as existing IPP or the liberty to decide according to the principles of justice
without force and effect, herein petitioners, in their individual contracts of NPC and thereafter, implement the and one's ideas of what is right and proper under the
and representative capacities, filed the present Petition for same, in accordance with the following guidelines, circumstances, without willfulness or favor.8 Discretion, when
Injunction to restrain respondents from implementing NPB except as provided for in paragraph (f) herein: x x applied to public functionaries, means a power or right
Resolutions No. 2002-124 and No. 2002-125. In support x. conferred upon them by law of acting officially in certain
thereof, petitioners invoke Section 78 of the EPIRA Law, to circumstances, according to the dictates of their own
wit: judgment and conscience, uncontrolled by the judgment or
Petitioners insist that if ever there exists a valid wholesale
conscience of others.9 It is to be presumed that in naming
abolition of their positions and their concomitant separation
the respective department heads as members of the board
Section 78. Injunction and Restraining Order. – form the service, such a process is an integral part of
of directors, the legislature chose these secretaries of the
The implementation of the provisions of this Act "privatization" and "restructuring" as defined under the
various executive departments on the basis of their personal
shall not be restrained or enjoined except by an EPIRA Law and, therefore, must comply with the above-
qualifications and acumen which made them eligible to
order issued by the Supreme Court of the quoted provision requiring the endorsement of the Joint
occupy their present positions as department heads. Thus,
Philippines. Congressional Power Commission and the approval of the
the department secretaries cannot delegate their duties as
President of the Philippines. Furthermore, petitioner highlight
members of the NPB, much less their power to vote and
the fact that said Resolutions will have an adverse effect on
In assailing the validity of NPB Resolutions No. 2002-124 approve board resolutions, because it is their personal
about 5,648 employees of the NPC and will result in the
and No. 2002-125, petitioners maintain that said Resolutions judgment that must be exercised in the fulfillment of such
displacement of some 2,370 employees, which, petitioners
were not passed and issued by a majority of the members of responsibility.
argue, is contrary to the mandate of the Constitution to
the duly constituted Board of Directors since only three of its
promote full employment and security of tenure.
members, as provided under Section 486 of the EPIRA Law,
There is no question that the enactment of the assailed
were present, namely: DOE Secretary Vincent S. Perez, Jr.;
Resolutions involves the exercise of discretion and not
Department of Budget and Management Secretary Emilia T. Respondents, on the other hand, uphold the validity of the
merely a ministerial act that could be validly performed by a
Boncodin; and NPC OIC-President Rolando S. Quilala. assailed Resolutions by arguing that while it is true that four
delegate, thus, the rule enunciated in the case of Binamira v.
According to petitioners, the other four members who were members of the National Power Board of Directors,
Garrucho10 is relevant in the present controversy, to wit:
present at the meeting and signed the Resolutions were not particularly the respective Secretaries of the Department of
the secretaries of their respective departments but were Interior and Local Government, the Department of Trade and
merely representatives or designated alternates of the Industry, and the Department of Finance, as well as the An officer to whom a discretion is entrusted cannot
officials who were named under the EPIRA Law to sit as Director-General of the National Economic and Development delegate it to another, the presumption being that
members of the NPB. Petitioners claim that the acts of these Authority, were not the actual signatories in NPB Resolutions he was chosen because he was deemed fit and
representatives are violative of the well-settled principle that No. 2002-124 and No. 2002-125, they were, however, ably competent to exercise that judgment and
"delegated power cannot be further delegated." Thus, represented by their respective alternates. Respondents discretion, and unless the power to substitute
another in his place has been given to him, he WHEREFORE, premises considered, National Power Board
cannot delegate his duties to another. Resolutions No. 2002-124 and No. 2002-125 are hereby
declared VOID and WITHOUT LEGAL EFFECT. The
Petition for Injunction is hereby GRANTED and respondents
In those cases in which the proper execution of the
are hereby ENJOINED from implementing said NPB
office requires, on the part of the officer, the
Resolutions No. 2002-124 and No. 2002-125.
exercise of judgment or discretion, the
presumption is that he was chosen because he
was deemed fit and competent to exercise that SO ORDERED.
judgment and discretion, and, unless power to
substitute another in his place has been given to
him, he cannot delegate his duties to another.

Respondents' assertion to the contrary is not tenable. The


ruling in the case cited by respondents to support their
contention is not applicable in the case at bar. While it is true
that the Court has determined in the case of American
Tobacco Company v. Director of Patents11 that a delegate
may exercise his authority through persons he appoints to
assist him in his functions, it must be stressed that the Court
explicitly stated in the same case that said practice is
permissible only when the judgment and
discretion finally exercised are those of the officer
authorized by law. According to the Court, the rule that
requires an administrative officer to exercise his own
judgment and discretion does not preclude him from utilizing,
as a matter of practical administrative procedure, the aid of
subordinates, so long as it is the legally authorized official
who makes the final decision through the use of his own
personal judgment.

In the case at bar, it is not difficult to comprehend that in


approving NPB Resolutions No. 2002-124 and No. 2002-
125, it is the representatives of the secretaries of the
different executive departments and not the secretaries
themselves who exercised judgment in passing the assailed
Resolution, as shown by the fact that it is the signatures of
the respective representatives that are affixed to the
questioned Resolutions. This, to our mind, violates the duty
imposed upon the specifically enumerated department heads
to employ their own sound discretion in exercising the
corporate powers of the NPC. Evidently, the votes cast by
these mere representatives in favor of the adoption of the
said Resolutions must not be considered in determining
whether or not the necessary number of votes was garnered
in order that the assailed Resolutions may be validly
enacted. Hence, there being only three valid votes cast out
of the nine board members, namely those of DOE Secretary
Vincent S. Perez, Jr.; Department of Budget and
Management Secretary Emilia T. Boncodin; and NPC OIC-
President Rolando S. Quilala, NPB Resolutions No. 2002-
124 and No. 2002-125 are void and are of no legal effect.

Having determined that the assailed Resolutions are void as


they lack the necessary number of votes for their adoption,
We no longer deem it necessary to pass upon the other
issues raised in the instant petition

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