Conti 1 - Part 3 - Judicial Review

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SUPREME COURT REPORTS ANNOTATED In Re: Wenceslao Laureta March 12, 1987.
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IN THE MATTER OF PROCEEDINGS FOR DISCIPLINARY ACTION AGAINST ATTY. WENCESLAO LAURETA, AND OF CONTEMPT PROCEEDINGS AGAINST EVA MARAVILLA-ILUSTRE in G.R. NO. 68635, entitled "EVA MARAVILLA-ILUSTRE vs. HON. INTERMEDIATE APPELLATE COURT, ET AL."
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EN BANC. 383
VOL. 148, MARCH 12, 1987 In Re: Wenceslao Laureta
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Constitutional Law; Contempt; Legal Ethics; Attorneys; Judges; A letter individually addressed to some Justices of the SC is not covered by the constitutional right to "privacy of communication" when the same pertain to their exercise of judicial functions.Respondents' reliance on the "privacy of communication" is misplaced. Letters addressed to individual Justices, in connection with the performance of their judicial functions become part of the judicial record and are a matter of concern for the entire Court. The contumacious character of those letters constrained the First Division to refer the same to the Court en banc, en consulta and so that the Court en banc could pass upon the judicial acts of the Division. It was only in the exercise of forbearance by the Court that it refrained from issuing immediately a show cause order in the expectancy that after having read the Resolution of the Court en banc of October 28, 1986, respondents would realize the unjustness and unfairness of their accusations. Same; Same; Same; Same; Same; The Supreme Court's authority and duty to act to preserve its honor from attacks by an
irate lawyer mouthed by his client is clear and nonvindictive.There is no vindictive reprisal involved. The Court's authority and duty under the premises is unmistakable. It must act to preserve its honor and dignity from the scurrilous attacks of an irate lawyer, mouthed by his client, and to safeguard the morals and ethics of the legal profession. We are not convinced that Atty. Laureta had nothing to do with respondent Ilustre's letters to the individual Justices, nor with the complaint filed before the Tanodbayan. In the Motion for Reconsideration, dated June 11, 1986, filed by Atty. Laureta in the main petition, he stressed: "10. The composition of the First Division was reduced to five members. Strangely enough, about one month later, the Honorable Court promulgated its extended resolution with such promptitude in the entire history of the Supreme Court, unequalled in a manner of speaking. x x x" Same; Same; Same; Same; Same; Atty. Laureta had something to do with the letters and pleadings distributed and/or filed by his clientAdditionally, the disparaging remarks like: exertion of "undue" and "powerful influence" by Atty. Ordoez and Justice Yap; "distortion of facts, conjectures and mistaken references"; "untenable minute resolution although extended"; "unjust minute resolution" repeated by Atty. Laureta in his several pleadings, echoed and re-echoed in the individual letters to the Justices, as well as in the Complaint and the Motion for Reconsideration before the
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SUPREME COURT REPORTS ANNOTATED In Re: Wenceslao Laureta
Tanodbayan, reveal the not-too-hidden hand of Atty. Laureta. The foregoing is bolstered by the reports received by the members of the Court that copies of the complaint filed with the Tanodbayan were distributed to the editors of the metropolitan newspapers in envelopes bearing the name of respondent Laureta, who was heard over the radio speaking on the same complaint, and that he was following up the complaint and the motion for reconsideration of the order of dismissal of the Tanodbayan. Same; Same; Same; Same; Same; Same.Furthermore, respondent Laureta as his co-respondent Ilustre's lawyer had control of the proceedings. As stressed by this Court in an early case, as such lawyer, "Whatever steps his client takes should be within his knowledge and responsibility. Indeed, Canon 16 of the Canons of Legal Ethics should have reminded him that '(a) lawyer
should use his best efforts to restrain and to prevent his clients from doing those things which the lawyer himself ought not to do, particularly with reference to their conduct towards courts, judicial officers, jurors, witnesses and suitors. If a client persists in such wrongdoing the lawyer should terminate their relation.' " (In Re: Contempt Proceedings in Surigao Mineral Reservation Board vs. Cloribel, 31 SCRA 1, 23) Respondent Laureta manifestly failed to discharge such responsibility. For all intents and purposes, he appears to have encouraged and abetted his client in denigrating the members of the First Division of this Court, by baselessly charging them with rendering an "unjust" resolution with "deliberate bad faith," because of his stubborn insistence on his untenable arguments which had been rejected as without merit by the Court's First Division, whose Resolution was upheld by the Court en banc. Worse, the dissemination in the print and broadcast media in bold captions falsely depicting the Justices as "FAC(ING) GRAFT CHARGES" instead of the baseless rantings of a disgruntled litigant appear to have been timed to place them in a bad light at the height of the Christmas season. Certiorari; Appeals; Courts; Recall of a due course order is a common occurrence in the Supreme Court. It should not give occasion to a charge that the recall was unduly railroaded.The recall of a due course Order after a review of the records of the case is a common occurrence in the Court. Respondents speak as if it were only their petition which has been subjected to such recall. They have lost all objectivity in this regard. They are hardly qualified, and cannot presume to speak of the "entire history" of the Supreme Court.
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Same; Same; Same; Legal Ethics; Charge made by herein respondents that Justice Yap was aware that Atty, Sedfrey Ordoez is the counsel of the other party is incorrect. The SC is faced with numerous cases that the appearances of lawyers during deliberations escape their attention.But respondents continue to claim derisively that Justice Yap could not have been "unaware" of the appearance of Atty. Sedfrey Ordoez. They reacted by saying "tell it to the marines" (Letters of November 3,1986 to Justices Narvasa, Herrera, and Cruz, at p. 8, respectively). But that was the true and untarnished fact. With so many cases being handled by the Court, the appearances of lawyers during deliberative sessions very often escape attention, concentration being centered on the issues to be resolved.
Attorneys; Legal Ethics; No fault should be ascribed to the SC for the fact that its personnel continued sending court notices and papers to Atty. Sedfrey Ordoez (a former associate of Justice Pedro Yap) there being no formal withdrawal yet of Atty. Ordoez as counsel.Respondents also fault the Court for "still recogniz(ing) Atty. Ordoez as counsel" for their opponents in the case. In the same "Banc Resolution," it was clarified: "A copy of the resolution, dated May 14, 1986, was sent by the Releasing Clerks to Atty. Sedfrey A. Ordoez as his name still appears on the cover page of the Rollo. It was not necessarily because the Supreme Court 'still recognizes him as counsel for respondents' " (at p. 4) The fact of the matter is that even Atty. Laureta continued to recognize Atty. Ordoez as counsel as shown by his pleadings filed before the Court, which inevitably contained the notation "copy furnished Atty. Sedfrey Ordoez." No withdrawal of appearance having been presented by Atty. Ordoez in the main petition, his name continues to be in the Rollo of the case and the personnel concerned continue to furnish him with copies of Resolutions of this Court. Legal Ethics; Appeal; Reasons why the SC referred back to the C.A., L-50814 despite SC decision in L-46155, Nov. 9, 1977 that decision in L-46155 is res judicata.But respondents ask: if res judicata were applicable, why did this Court, in G.R. No. L-50814, refer the case to the Court of Appeals? The answer is simple. The issue of whether the remedy of petitioners in that case was appeal and not certiorari had to be resolved. If certiorari were proper, then the "Macandog Decision" had not become final. If appeal, its finality would be the consequence. The "Javellana Resolution," which reversed the "Busran Decision," held that Certiorari was proper when a party has been illegally declared in default. It follows that the "Macandog Decision" had not attained finality.
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Same; Same; The charge that the C.A. deliberately evaded the issue that it held the trial court's decision final already, is misleading for that C.A. decision penned by Justice Busran was reversed by the C.A. decision on reconsideration penned by Justice Javellana.The penchant of respondents for making misleading statements is again obvious. It was not in the "Javellana Resolution" that the Court of Appeals held that "the judgment of assail (referring to the 'Macandog Decision') had long become final." That was in the "Busran Decision," which was precisely reversed by the "Javellana Resolution."
Same; Same; Courts; The SC is not duty bound to render signed decisions all the time.The soundness of the legal conclusions arrived at in the "Escolin Decision" and "Javellana Resolution" commends itself. Only a disgruntled litigant and a defeated lawyer would claim that those judgments were accepted "hook, line and sinker" by this Court. The doctrine of res judicata is inescapably applicable. Thus it was that the First Division, in its challenged Resolution of May 14, 1986, found it unnecessary, after further study, to have a signed Decision and, instead, recalled the due course Order, which it had previously issued to give it "more time for further study" (p. 2, Banc Resolution, October 28, 1986). Contrary to respondents' claim, the Court is not "duty bound" to render signed Decisions all the time. It has ample discretion to formulate Decisions and/or minute Resolutions, provided a legal basis is given, depending on its evaluation of a case. Courts; Criminal Procedure; Judgments; The Supreme Court is Supreme and no other agency of the Government, including the Tanodbayan, may declare its decisions unjust.Respondents' action is brazenly unjustifiable. Nor can they plead ignorance. As aptly declared in the Chief Justice's Statement of December 24, 1986, which the Court hereby adopts in toto, "(I)t is elementary that the Supreme Court is supremethe third great department of government entrusted exclusively with the judicial power to adjudicate with finality all justiciable disputes, public and private. No other department or agency may pass upon its judgments or declare them 'unjust.' " Same; Same; Same; Damages; Art 204 of the Revised Penal Code on "rendering knowingly an unjust judgment" refers to an individual judge; it has no application to members of a collegiate court like the Supreme Court. The prosecutor cannot also pass judgment on justness of decision of an individual judge; only the CA or SC may do
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so.Respondents should know that the provisions of Article 204 of the Revised Penal Code as to "rendering knowingly unjust judgment" refer to an individual judge who does so "in any case submitted to him for decision" and even then, it is not the prosecutor who would pass judgment on the "unjustness" of the decision rendered by him but the proper appellate court with jurisdiction to review the same, either the Court of Appeals and/or
the Supreme Court. Respondents should likewise know that said penal article has no application to the members of a collegiate court such as this Court or its Divisions who reach their conclusions in consultation and accordingly render their collective judgment after due deliberation. It also follows, consequently, that a charge of violation of the Anti-Graft and Corrupt Practices Act on the ground that such a collective decision is "unjust" cannot prosper. Same; Same; Same; Administrative; The theory that only SC may pass upon the justness of its decisions is a display of arrogance but an implementation of the rule on separation of powers.The Chief Justice's Statement of the supremacy of the Supreme Court's judicial power is by no means a "display of arrogance" as per respondents' puerile contention, but a restatement of the fundamental principle of separation of powers and checks and balances under a republican form of government such as ours, viz. that the three coequal branches of government, the executive, legislative and judicial, are each supreme and independent within the limits of its own sphere. Neither one can interfere with the performance of the duties of the other. (Forbes vs. Chuoco, 16 Phil. 534 [1910]). Attorneys; Legal Ethics; Contempt; To subject a judge or justices to the threat of an investigation or prosecution for official acts constitutes a subversion of their independence.To subject to the threat and ordeal of investigation and prosecution, a judge, more so a member of the Supreme Court for official acts done by him in good faith and in the regular exercise of official duty and judicial functions is to subvert and undermine that very independence of the judiciary, and subordinate the judiciary to the executive. "For it is a general principle of the highest importance to the proper administration of justice that a judicial officer in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself. Liability to answer to everyone who might feel himself aggrieved by the action of the judge would be inconsistent with the possession of this freedom, and would destroy that independence without which no judiciary can be either respectable or useful." (Bradley vs. Fisher, 80 U.S. 335).
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Same; Same; Same; Litigants cannot be allowed to claim that members of the SC acted in bad faith or rendered an unjust
resolution.To allow litigants to go beyond the Court's resolution and claim that the members acted "with deliberate bad faith" and rendered and "unjust resolution" in disregard or violation of the duty of their high office to act upon their own independent consideration and judgment of the matter at hand would be to destroy the authenticity, integrity and conclusiveness of such collegiate acts and resolutions and to disregard utterly the presumption of regular performance of official duty. To allow such collateral attack would destroy the separation of powers and undermine the role of the Supreme Court as the final arbiter of all justiciable disputes. Same; Same; Same; Same.In resume, we find that respondent Ilustre has transcended the permissible bounds of fair comment and criticism to the detriment of the orderly administration of justice in her letters addressed to the individual Justices quoted in the showcause Resolution of this Court en banc, particularly the underlined portions thereof; in the language of the charges she filed before the Tanodbayan quoted and underscored in the same Resolution; in her statements, conduct, acts and charges against the Supreme Court and/or the official actions of the Justices concerned and her ascription of improper motives to them; and in her unjustified outburst that she can no longer expect justice from this Court. The fact that said letters are not technically considered pleadings, nor the fact that they were submitted after the main petition had been finally resolved does not detract from the gravity of the contempt committed. The constitutional right of freedom of speech or right to privacy cannot be used as a shield for contemptuous acts against the Court. Same; Same; Same; An attorney commits an act unbecoming of an officer of the court where he dangles threats of bringing SC resolutions to the "proper forum, " challenging the integrity of the CA and SC, and assisting or not preventing his client from making contemptuous statements.We likewise find that Atty. Laureta has committed acts unbecoming an officer of the Court for his stance of dangling threats of bringing the matter to the "proper forum" to effect a change of the Court's adverse Resolution; for his lack of respect for and exposing to public ridicule, the two highest Courts of the land by challenging in bad faith their integrity and claiming that they knowingly rendered unjust judgments (Montecillo vs. Gica, 60 SCRA 234 [1974]); for authoring, or at the very least, assisting and/or abetting and/or not preventing the contemptuous statements, conduct, acts and malicious charges of his client, respondent Ilustre, notwith389
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standing his disclaimer that he had absolutely nothing to do with them, which we find disputed by the facts and circumstances of record as above stated; for totally disregarding the facts and circumstances and legal considerations set forth in this Court's Resolutions of the First Division and en banc, as the Tribunal of last resort; for making it appear that the Justices of this Court and other respondents before the Tanodbayan are charged with "graft and corruption" when the complaint before the Tanodbayan, in essence, is a tirade from a disgruntled litigant and a defeated counsel in a case that has been brought thrice before this Court, and who would readily accept anything but the soundness of the judgments of the Courts concerned, all with the manifest intent to bring the Justices of this Court and of the Court of Appeals into disrepute and to subvert public confidence in the Courts. Same, Same, Same; Nature of a disciplinary proceeding against a lawyer.In assessing the penalty on respondent Laureta, the Court notes that "disciplinary proceedings against lawyers are sui generis. Neither purely civil nor purely criminal, they do not involve a trial of an action or a suit, but are rather investigations by the Court into the conduct of one of its officers. Not being intended to inflict punishment, it is in no sense a criminal prosecution. Accordingly, there is neither a plaint nor a prosecutor therein. It may be initiated by the Court motu proprio. Public interest is its primary objective, and the real question for determination is whether or not the attorney is still a fit person to be allowed the privileges as such. Hence, in the exercise of its disciplinary powers, the Court merely calls upon a member of the Bar to account for his actions as an officer of the Court with the end in view of preserving the purity of the legal profession and the proper and honest administration of justice by purging the profession of members who by their misconduct have proved themselves no longer worthy to be entrusted with the duties and responsibilities pertaining to the office of an attorney." Viewed in the light of the demonstrated persistence of grave misconduct and undermining public confidence in the honor and integrity of the Court and its members (at a time when the Court is exerting every effort to regain public confidence in our courts after the trauma and debacle undergone by them in the past regime), the Court shall impose upon him an indefinite suspension, leaving it to him to prove at some future and opportune time, that he shall have once again regained the fitness to be allowed to resume the practice of law as an officer of the Courts. (In re: Almacen, 31 SCRA 562)
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RESOLUTION PER CURIAM: In almost identical letters dated 20 October 1986, personally sent to Justices Andres R. Narvasa, Ameurfina M. Herrera, and Isagani A. Cruz, and a fourth letter, dated 22 October 1986 addressed to Justice Florentino P. Feliciano, all members of the First Division of this Court, (incorporated herein by reference), and in feigned ignorance of the Constitutional requirement that the Court's Divisions are composed of, and must act through, at least five (5) members, and in a stance of dangling threats to effect a change of the Court's adverse resolution, petitioner Eva Maravilla Ilustre wrote in part:
"Please forgive us for taking the liberty of addressing you this letter which we do hope you will read very carefully. "It is important to call your attention to the dismissal of Case No. G.R. 68635 entitled 'Eva Maravilla Ilustre vs. Hon. Intermediate Appellate Court, et al.,' by an untenable minuteresolution although an extended one, dated 14 May 1986 which we consider as an unjust resolution deliberately and knowingly promulgated by the First Division of the Supreme Court of which you are a member. "x x x x x x x x x "We consider the three minute-resolution: the first dated 14 May 1986; the second, dated 9 July 1986; and the third, 3 September 1986, railroaded with such hurry/promptitude unequalled in the entire history of the Supreme Court under circumstances that have gone beyond the limits of legal and judicial ethics. x x x x x x x x x "Your attention is called to minute-resolution of 9 July 1986 which writes finish to our case before the Supreme Court (x x x THIS IS FINAL') There is nothing final in this world. We assure you that this case is far from finished by a long shot For at the proper time, we shall so act and bring this case before another forum where the members of the Court can no longer deny our action with minute resolutions that are not only unjust but are knowingly and deliberately promulgated. The people deserve to
know how the members of the highest tribunal of the land perform in the task of decision making by affixing their respective signatures on judgments that they render on petitions that they themselves give due course.
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"Please understand that we are pursuing further remedies in our quest for justice under the law. We intend to hold responsible members of the First Division who participated in the promulgation of these three minute-resolutions in question. For the members thereof cannot claim immunity when their action runs afoul with penal sanctions, even in the performance of official functions; like others, none of the division members are above the law. "In our quest for justice, we wish to avoid doing injustice to anyone, particularly the members of the First Division, providing that they had no hand in the promulgation of the resolution in question. That is why we are requesting you to inform us your participation in the promulgation of these resolutions in question. Even we who are poor are also capable of playing fair even to those who take advantage of our poverty by sheer power and influence. We shall then wait for your reply. If, however, we do not hear from you after a week, then we will consider your silence that you supported the dismissal of our petition. We will then be guided accordingly. (Emphasis supplied).
The letter also attacked the participation in the case of Justice Pedro L. Yap, Chairman of the First Division in this wise:
"As Division Chairman, Associate Justice Pedro Yap, as a copy of Resolution dated 14 May 1986 we received indicate, did not even have the elementary courtesy of putting on record that he voluntarily inhibited himself from participating in the promulgation of this minute-resolution, although an extended one, which he should have done consistent with judicial decorum and the Canons of Judicial Ethics. After all he is the law partner of 'Atty. Sedfrey A. Ordoez, counsel for respondents, now the distinguished Solicitor General x x x indicative that even at this stage of the proceeding in point of time, the Supreme Court still recognizes Atty. Sedfrey A. Ordoez as counsel for respondents, even as he is already the Solicitor General. For not withdrawing from the case formally Atty. Ordoez has manifested his unmitigated arrogance that he does not respect the Canons of
Professional Ethics, similar to the actuation of his law partner, Associate Justice Pedro Yap, Chairman of the First Division of the Supreme Court, an act that further aggravates the growing wrinkles in the domain of judicial statesmanship, impressed as it is, with very serious and dangerous implications.
"(9) By 11 April 1986, date of the reorganization of the First Division, Atty. Sedfrey A. Ordoez already became the 392
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Solicitor General. With such amazingly magical coincidence, Dr. Pedro Yap, law partner of Atty. Sedfrey A. Ordoez in the law firm Salonga, Ordoez, Yap, Padlan became the Chairman of the Division. x x x "(11) So we see that on 11 August 1986 to 14 May 1986 when some members of the Division were still busy putting their respective offices in order and had possibly have no idea about the Maravilla case. Was it possible for Chairman Yap to have convinced the Division members that Maravilla petition is without merit, and since the membersthe new ones knew nothing about the case, readily agreed to the dismissal of the petition by a minuteresolutionan extended one. After all, this was the case of the Solicitor General. If this is what happened, then we are sorry to say that you were deliberately 'had.' After all, the 14 May 1986 untenable minute resolution although an extended one, does not bear the signatures of the Division members. The members should have signed the resolution, after all, the Supreme Court had given the petition due course, indicating whether they concur, dissent or otherwise abstain from voting."
The letter to Justice Herrera went on to state:

"We assume, of course, that you had studied the case thoroughly since you were with the original 7-man First Division under the chairmanship of then Justice Claudio Teehankee. We assure you that we will bring this case before another forum to hold responsible the members of the Division who participated in the dismissal of the case by the unjust minute-resolutions, knowingly rendered for intended objective that your conscience you are aware. x x x x x x x x x "We leave the next move to you by informing us your participation in the promulgation of the minute-resolutions in question. Please do not take this matter lightly for we know justice
in the end will prevail. For if we do not hear from you within a week, we will consider your silence as your admission that you supported the dismissal of the petition. In this way, we shall then be guided accordingly. The moment we take action in the plans we are completing, we will then call a press conference with TV and radio coverage. Arrangements in this regard are being done. The people should or ought to know why
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VOL. 148, MARCH 12, 1987 In Re: Wenceslao Laureta we were thwarted in our quest for plain justice. x x x x x x x x x
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"Finally, in view of action that we are prepared to take in this case, that will no doubt cause nationwide attention, and there should be anyone that will cause me harm personally, may we request you to show this letter to the authorities concerned so that they will know where to look, when it becomes necessary. " (Italics supplied)
The aforesaid letters were included in the Agenda of the First Division of 22 October 1986, were "Noted," and referred en consulta to the Court en banc. On 28 October 1986, the Court en banc took up the background and history of the case, found no reason to take any further action, and referred the case back to the First Division "as set forth in the latter's resolution of October 27, 1986." In this Resolution, the First Division traced the history of the case, clarified that Justice Yap assumed his position in this Court only on 2 May 1986; that when the resolution of dismissal was issued on 14 May 1986, Justice Abad Santos was the incumbent Chairman of the First Division, and that Justice Yap was unaware that Atty. Ordoez was private respondents' counsel; that upon realization thereof, Justice Yap inhibited himself from further participation in the case; and that Justice Yap was designated Chairman of the First Division only on 14 July 1986, after the compulsory retirement of Justice Vicente Abad Santos on 12 July 1986. The Resolution of the First Division (incorporated herein by reference) concluded thus:
'The dispositions in this case were arrived at after careful study. Because a case is resolved against the interests of a party, does not mean that it is an 'unjust decision' or that it has been 'railroaded.' "This Division declares without hesitation that it has
consistently rendered justice without fear or favor. YAP, J., took no part."
On 3 November 1986, petitioner again addressed similar letters to Justices Narvasa, Herrera, and Cruz, (incorporated herein by reference), excerpts from which follow:
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"It is rather amazing that when we wrote you our previous letter, we never dreamed that you would rush, as you did rush for assistance en consulta with the Honorable Court en banc. The unfortunate part of it all is the fact that the Court en banc had to promulgate its resolution dated 28 October 1986 which to us when considered in its entirety, is just as untenable as the First Division extended and unsigned minute-resolution of 14 May 1986. "Evidently you misunderstood our point of inquiry, to wit: 'Did you or did you not approve the dismissal of our petition under "1) The 14 May 1986 minute resolution? Yes or No. "2) The 9 July 1986 minute resolution? Yes or No. "3) The 3 Sept. 1986 minute resolution? Yes or No. "That was all we asked. The other matters contained in our letter were intended merely to give you the highlights of our case. This is what we wanted to know to properly guide us when we finally bring our case to the other forum of justice. "Did it ever occur to you that when you and the other members of the First Division referred our letters to the Honorable Court en banc en consulta it was all your fault that the Court en banc had to promulgate its unsigned extended minute-resolution that unfortunately exposed the distinguished members of the newly reorganized Supreme Court and, at the same time, convicted themselves as guilty of distorting facts involved in our petition? "This, we are sure, will come as a shock to you. We will show you why x x x x x x "This is just a sample of what we will expose to the nation before the other forum of justice where we will soon bring this case beyond the reach of the newly reorganized Supreme Court. We are prepared to expose many more of this kind of judicial performance readily constituting travesty of justice. Ponder upon this well because it is our very firm conviction that the people deserve to know how the distinguished members of the highest tribunal of the land perform
their duties in this most sensitive area of decision making. "Anyhow, whether you referred our letter to the Court en banc (en consulta) or not, the situation remains the same. At the proper time, as we said, we will bring this case before another forum of justice where the members of the First Division, in fact the Honorable Court en banc may no longer deny our action by mere untenable and unjust minute resolutions. Better believe it that we intend to hold responsible members of the First Division who took part
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in the promulgation of the untenable and unjust extended minuteresolution that is not even signed by any of those who promulgated it; therefore, to us, is clearly bereft of judicial integrity from its very inception on 14 May 1986. x x x x x x x x x "Thus, we will bring this case before another forum of justice as E va Maravilla Ilustre against the distinguished members of the First Division, in fact against the entire membership of the newly organized Supreme Court (because of its en banc unsigned extended minute-resolution that is without judicial integrity, dated 28 October 1986). But do not be mislead (sic) for we are not alone in this fight. Other lawyers, not just by their mere sympathy for me personally and my case, but by their firm conviction that judicial statesmanship must be maintained at all times in the highest tribunal of justice in the land, that they have offered their free legal services when the legal confrontation begins. x x x x x x x x x "Paragraph 4, found on page 3 of the en banc resolution projects the most fantastic, most unbelievable picture of Division Chairman Justice Yap. It states
" 'x x x When the resolution of dismissal on May 14, 1986, Justice Yap was unaware that Atty. Sedfrey A. Ordoez was private respondent's counsel.
"The Honorable Court en banc must think everybody stupid to swallow this statement hook, line and sinker. For Justice Yap we say: Tell that to the marines. But more than this, we leave this matter to the conscience of Justice Yap. "Ignoramus that we are, unschooled in the domain of law and procedure, but we are learning a few as we prosecute our case within legitimate limits, we state here that both resolutionsthat promulgated by the Court en banc of 28 October 1986 and that promulgated by the First Division dated 27 October 1986, are
nothing but a desperate attempt, when both are considered in their respective entirety, to maneuver without success, some semblance of justification on the untenable and unjust 14 May 1986 extended and unsigned minute-resolution that is bereft of judicial integrity. x x x x x x x x x "Thus, if the members of the First Division and those of the Honorable Court en banc think for one minute that because of their respective 4-page minute but extended resolutions apparently im396
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pressive for their lack of merit, deliberately unsigned that exposed their lack of judicial integrity, that we will now give up the fight, just forget it. Ignoramus that we are, better believe it when we say we are prepared to carry the fight before another forum of justice. When we do, we shall call for a press conference with TV and radio coverage, so that we can present to the entire nation our quest for justice against the steam-roller of power and influence and, at the same time, to call the attention of the people to the manner in which the members of the highest tribunal of the land perform their respective individual and collective functions in the domain of this most sensitive area of decision making. "Allow us to restate our previous and now, our present inquiry, to wit: "Did you or did you not approve the dismissal of our petition under "a) The 14 May 1986 minute resolution? Yes or No. b) The 9 July 1986 minute resolution? Yes or No. c) The 3 Sept. 1986 minute resolution? Yes or No.' " (Emphasis supplied).
True to her threats, after having lost her case before this Court, petitioner filed on 16 December 1986 an AffidavitComplaint before the Tanodbayan, totally disregarding the facts and circumstances and legal considerations set forth in this Court's aforecited Resolutions of the First Division and en banc. Some Members of this Court were maliciously charged with having knowingly and deliberately rendered, with bad faith, an unjust, extended Minute Resolution "making" her opponents the "illegal owners" of vast estates. Some Justices of the Court of Appeals were similarly maliciously charged with knowingly rendering their "unjust resolution" of 20 January 1984 "through manifest
and evident bad faith," when their Resolution had in fact and law been upheld by this Court. Additionally, Solicitor General Sedfrey A. Ordoez and Justice Pedro Yap of this Court were also maliciously charged with having used their power and influence in persuading and inducing the members of the First Division of this Court into promulgating their "unjust extended Minute Resolution of 14 May 1986."
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All the foregoing, in complete disregard of the Resolutions of this Court, as the tribunal of last resort, 1) upholding the challenged judgment of the Court of Appeals; 2) dismissing the Petition on the ground that the doctrine of res judicata was clearly applicable not only as to the probate of the Will of the decedent but also as to the heirship of petitioner, among others, and their right to intervene and participate in the proceedings; and 3) finding that there was no attempt whatsoever on the part of Justice Yap nor Solicitor General Ordoez to unduly influence the members of the First Division. The Complaint before the Tanodbayan (incorporated herein by reference) was allegedly filed "in my quest for justice, something that has been closed to me by the Supreme Court forever" and specifically charged: "CHARGE NO. ONE Atty. Sedfrey A. Ordoez and Justice Pedro Yap of 1) 'persuading, inducing, influencing the members of the newly organized First Division x x x into promulgating their unjust, extended minute RESOLUTION of 14 May 1986, knowingly with deliberate intent with such unusual hurry/promptitude unequalled in the entire history of the Supreme Court based on insignificant issues and deliberately evading/prevaricating the more important substantial ones raised in my petition, in violation of Section 3, sub-letter (a) of Republic Act No. 3019, as amended, x x x,; and '(2) Under the same Section 3, subletter (e) of the same Republic Act x x x for causing me and the other heirs of Ponciano Maravilla undue injury by using their power and influence as Solicitor General and Associate Justice, respectively. x x x
"CHARGE NO. TWO "Associate Justices Luis Javellana, Vicente Mendoza and Serafin Cuevas, members of the then FOURTH SPECIAL CASES DIVISION, Intermediate Appellate Court 1) For knowingly rendering their unjust RESOLUTION dated 20 January 1984 in the exercise of their functions through manifest and evident bad faith in CA-G.R. No. SP-13680, entitled Francisco Q. Maravilla, et al. v. Hon. Antonia Corpus Macandog, et al.' in violation of Article 204 of the Revised Penal Code; "2) For causing me and the other heirs such 'undue injury' by
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SUPREME COURT REPORTS ANNOTATED In Re: Wenceslao Laureta deliberately, knowingly rendering their unjust RESOLUTION dated 20 January 1984 x x x in violation of Republic Act No. 3019, as amended, Section 3 (e) thereof.
"CHARGE NO. THREE "Associate Justice Vicente Abad Santos (retired) then Chairman of the First Division of the Supreme Court as of 14 May 1986, and Associate Justice Isagani Cruz, Andres Narvasa, Ameurfina M. Herrera and Pedro Yap, x x x 1) For knowingly and deliberately rendering their unjust, extended MINUTE RESOLUTION of 14 May 1986 dismissing my petition in G.R. No. 68635, x x x with manifest and evident bad faith to make the clients of Atty. Sedfrey A. Ordoez, now the distinguished Solicitor General, the 'illegal owners' of the vast estates of my aunt Digna Maravilla x x x; "2) Under Section 3, sub-letter (e) Republic Act No. 3019', as amended, x x x for deliberately causing us heirs of Ponciano Maravilla undue injury by depriving us of our rights over my aunt's vast estates because of their manifest and evident bad faith in knowingly promulgating their unjust, extended minute RESOLUTION of 14 May 1986,
deliberately intended to make the clients of Atty. Sedfrey A. Ordoez, now the Solicitor General, the 'illegal owners' of my aunt Digna Maravilla's estates when, under the law, these Ordoez clients are not entitled to own these vast properties whether under testate or intestate succession or mixed succession." (Emphasis supplied). Atty. Laureta himself reportedly circulated copies of the Complaint to the press, which was widely publicized in almost all dailies on 23 December 1986, without any copy furnished this Court nor the members who were charged. The issue of the Daily Express of 23 December 1986 published a banner headline reading: "ORDOEZ, 8 JUSTICES FACE GRAFT CHARGES" thereby making it unjustly appear that the Justices of this Court and the other respondents were charged with "graft and corruption" when the Complaint was actually filed by a disgruntled litigant and her counsel after having lost her case thrice in this Court.
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On 26 December 1986, the Tanodbayan (Ombudsman) dismissed petitioner's Complaint and decreed in the dispositive portion of his Resolution (herein incorporated by reference) that:
"WHEREFORE, all the premises considered, this Office resolves to dismiss the complaint against Justices Pedro Yap, Isagani Cruz, Andres Narvasa, Ameurfina Melencio-Herrera, Vicente Abad Santos, and will continue evaluating the complaint against Justices Serafin Cuevas, Luis Javellana and Vicente Mendoza, Solicitor General Sedfrey Ordoez, and the private respondents."
The aforestated Resolution indicated at the bottom of the last page: "Copy Furnished: DEAN WENCESLAO LAURETA Counsel for the Complainant 919 Prudencio Street Sampaloc, Manila
In the Resolution of this Court en banc, dated January 29, 1986, it required:
"(1) Petitioner Eva Mara villa Ilustre to show cause, within ten (10) days from notice, why she should not be held in contempt for her aforecited statements, conduct, acts and charges against the Supreme Court and/or official actions of the Justices concerned, which statements, unless satisfactorily explained, transcend the permissible bounds of propriety and undermine and degrade the administration of justice; and '(2) Atty. Wenceslao Laureta, as an officer of the Court, to show cause, within ten (10) days from notice, why no disciplinary action should be taken against him for the aforecited statements, conduct, acts and charges against the Supreme Court and the official actions of the Justices concerned, and for hiding therefrom in anonymity behind his client's name, in an alleged quest for justice but with the manifest intent to bring the Justices into disrepute and to subvert public confidence in the Courts and the orderly administration of justice." (pp. 383-384, Rollo).
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SUPREME COURT REPORTS ANNOTATED In Re: Wenceslao Laureta (1)
In her Compliance-Answer filed on February 9, 1987, wherein Eva Maravilla Ilustre prays that the contempt proceedings against her be dismissed, she contends, in essence, that: (1) "there was no intention to affront the honor and dignity" of the Court; (2) the letters addressed to the individual Justices were private in character and were never meant for anybody, much less the Supreme Court en banc, "there (being) a constitutional mandate affording protection to privacy of communications;" (3) if her statements in those letters were really contemptuous, the Court "should have immediately taken disciplinary proceedings" against her, and not having done so, the Court has "forfeited" that right and is now "estopped" from doing so; this citation for contempt is a "vindictive reprisal" for her having filed the complaint before the Tanodbayan, "an action that lacks sincerity, taken not in the spirit of judicial statemanship;" (4) she instituted the complaint before the Tanodbayan "in my honest belief that I lost my case before the Supreme Court not because of lack of merit or of its
own merits, assisted by attorneys who offered their services in the prosecution of my case;" (5) the newspaper publicity of this case "was no fault of mine; neither is it the fault of my former counsel Dean Wenceslao Laureta," who prevailed upon her to call off the press conference with TV and radio coverage; that she is not a "disgruntled litigant" who thrice lost before the Court, rather, she has challenged the validity of the resolutions of the Court "containing distortion of facts, conjectures and mistaken inferences" particularly, in that (a) there is no res judicata, (b) the Court of Appeals in its decision declared that the judgment of the trial Court had long attained finality, so that it can no longer be set aside, (c) her "opponents," clients of Atty. Ordoez, are not entitled to own her aunt's "vast properties" whether under the law of testate or intestate succession or mixed succession," (d) that the statement in this Court's Resolution that the Court of Appeals had denied intervention is an "unadulterated distortion of the facts;" (b) the statement in the en banc Resolution that some Justices of the Court of Appeals were similarly maliciously charged with knowingly rendering their "unjust resolution" of
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20 January 1984 is a bit "premature, a pre-judgment over a case over which this Court does not have jurisdiction;" (7) Atty. Laureta is not her counsel in the case before the Tanodbayan; (8) before the latter body, she has "established not only probable cause but has also proved the collective culpability (of the Justices concerned) as charged;" (9) and that her 53page Motion for Reconsideration before the Tanodbayan is made an integral part of her Answer. (2) In his own Answer, Atty. Laureta maintains substantially that: (1) he is not respondent Ilustre's counsel before the Tanodbayan and that she has consulted and/or engaged the services of other attorneys in the course of the prosecution of her case, like Atty. Edgardo M. Salandanan and Atty. Vedastro B. Gesmundo; that he just learned from other sources that respondent Ilustre was planning to bring her case to the Tanodbayan with the assistance 01 other
lawyers who offered her their legal services; (2) it was he who dissuaded her from calling her intended press conference and from circulating copies of her complaint "not only in the performance of duty as an officer of the court, but also as a former president of Manila III Chapter of the Integrated Bar of the Philippines and as a professional lecturer in Legal and Judicial Ethics in some Manila law schools in his desire to protect and uphold the honor and dignity of the Supreme Court as the highest tribunal of the land." He should, therefore, be given "a little bit of credit for what he did" instead of taking this disciplinary proceeding against him; that Ms. Ilustre is not a "disgruntled litigant" who "lost her case thrice in this Court;" (3) he did not prepare respondent Ilustre's letters to the individual Justices, "appearances to the contrary notwithstanding;" that these letters were "never, at any time, considered as constituting contempt of court" in the resolutions of this Court, otherwise, "it would have taken immediate disciplinary action as it is doing now;" the Court has lost its right to consider the statements in the letters as constituting contempt and it is now "estopped" from proceeding with this disciplinary action; (4) by doing so, this Court has "unmistakably revealed the intent and
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character that underlie its present action as a vindictive judicial vengeance, inconsistent with the spirit of judicial statesmanship by hiding behind the well-recognized fact that the Supreme Court is supreme in the domain of the administration of justice;" (5) "there was no disregard intended to the Resolution of the Honorable Court, as the tribunal of last resort, relative to its upholding the judgment of the Court of Appeals;" he is just doing "his duty as an officer of the court to put the records in this regard in their proper light;" particularly (a) that the judgment of the trial court had attained its finality long ago, (b) the doctrine of res judicata is inapplicable, otherwise, this Court would not have remanded the case to the Court of Appeals for review, (c) the observation in the First Division's extended Resolution of 14 July 1986 that Justice Yap was unaware that Atty. Ordoez was private respondents' counsel "defies every vestige of human understanding;" that Justice Yap had forthwith inhibited himself from participating in the case is not borne out by
the record of this case. Justice Yap had "never voluntarily entered on the record his inhibition" when he should have done so when respondent Ilustre's petition was taken up; Justice Yap's partner, Atty. Ordoez, continued to be recognized by this Court as counsel for private respondents even as he was already the Solicitor General; (b) finally, "appearances to the contrary notwithstanding, he has not committed acts unworthy of his profession. The truth of the matter is, he should at least be credited in whatever small way for his acts and efforts taken by him to protect and uphold the honor and dignity of the Honorable Court.'' We find the explanations of both Ms. Ilustre and Atty. Laureta unsatisfactory. Their claims that they had done nothing that could constitute an affront to the honor and dignity of this Court dissipate in the face of attendant facts and circumstances and "defy every vestige of human understanding," to use their own language. Indeed, they should not "think that they will win a hearing by the sheer multiplication of words." (Mathew 6:7). Respondents' reliance on the "privacy of communication" is misplaced. Letters addressed to individual Justices, in connec403
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tion with the performance of their judicial functions become part of the judicial record and are a matter of concern for the entire Court. The contumacious character of those letters constrained the First Division to refer the same to the Court en banc, en consulta and so that the Court en banc could pass upon the judicial acts of the Division. It was only in the exercise of forbearance by the Court that it refrained from issuing immediately a show cause order in the expectancy that after having read the Resolution of the Court en banc of October 28, 1986, respondents would realize the unjustness and unfairness of their accusations. The Court is far from "estopped" in initiating these proceedings. The Chief Justice had promptly announced his Statement, dated December 23, 1986, that "the Supreme Court will take appropriate steps on the matter upon its resumption of sessions on the first working day of the year.'' There is no vindicative reprisal involved. The Court's authority and duty under the premises is unmistakable. It
must act to preserve its honor and dignity from the scurrilous attacks of an irate lawyer, mouthed by his client, and to safeguard the morals and ethics of the legal profession. We are not convinced that Atty. Laureta had nothing to do with respondent Ilustre's letters to the individual Justices, nor with the complaint filed before the Tanodbayan. In the Motion for Reconsideration, dated June 11, 1986, filed by Atty. Laureta in the main petition, he stressed:
"10. The composition of the First Division was reduced to five members. Strangely enough, about one month later, the Honorable Court promulgated its extended resolution with such promptitude in the entire history of the Supreme Court, unequalled in a manner of speaking. x x x"
In the Manifestation and Motion, dated June 25, 1986, filed by Atty. Laureta (p. 311, Rollo), the same phrases were incanted:
"the promptitude with which the Resolution of 14 May 1986 was promulgated (par. 9, Motion for Reconsideration, p. 5) unequalled in the entire history of the Supreme Court in so far as petitions given due course is concerned x x X" (Emphasis given)
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Those same terms are reproduced verbatim in the letters ostensibly authored by respondent Ilustre addressed to the individual Justices whom respondents have charged. Thus:
"We consider the three minute resolutions x x x railroaded with such hurry/promptitude unequalled in the entire history of the Supreme Court under circumstances that have gone beyond the limits of legal and judicial ethics" (Ltr. to Justice Narvasa, p. 2; ltr. to Justice Herrera, p. 2; ltr. to Justice Cruz, p. 2). x x x x x x "with such unusual hurry/promptitude unequalled in the entire history of the Supreme Court" (Ltr. to Justice Narvasa, p. 5; ltr. to Justice Herrera, p. 5; ltr. to Justice Cruz, p. 5)."
The same terminologies are reiterated in the Complaint and in the Motion for Reconsideration filed before the Tanodbayan (p. 2). Further, in his Manifestation & Motion, dated June 25, 1986, Atty. Laureta stated:
"counsel for petitioner personally inquired from Division Clerk of Court Corazon Serevo the following: (1) When was the above-entitled case deliberated by the First Division? (2) Are there recorded minutes of such deliberation? (3) Who among the members of the Division voted for dismissal of the petition to be promulgated by resolution and who did not, if any? (4) Who prepared the Resolution?" (p. 312, Rollo).
Atty. Laureta's obsession to receive the answer to his queries surfaces again in the second letters dated November 3, 1986 to the individual Justices under the supposed signatures of respondent Ilustre, thus:
"Evidently you misunderstood our point of inquiry in our first letter. It is a very simple inquiry, to wit Did you or did you not approve the dismissal of our petition under 1) The 14 May 1986 minute resolution? Yes or No 2) The 9 July 1986 minute resolution? Yes or No
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3) The 3 Sept. 1986 minute resolution? Yes or No. " (Italics original) (Ltr. to Justice Narvasa, p. 1; to Justice Herrera, p. 1; to Justice Cruz, p. 1)
Additionally, the disparaging remarks like: exertion of "undue" and "powerful influence" by Atty. Ordoez and Justice Yap; "distortion of facts, conjectures and mistaken references"; "untenable minute resolution although extended"; "unjust minute resolution" repeated by Atty. Laureta in his several pleadings, echoed and re-echoed in the individual letters to the Justices, as well as in the Complaint and the Motion for Reconsideration before the Tanodbayan, reveal the not-too-hidden hand of Atty. Laureta. The foregoing is bolstered by the reports received by the members of the Court that copies of the complaint filed with the Tanodbayan were distributed to the editors of the metropolitan newspapers in envelopes bearing the name of respondent Laureta, who was heard over the radio speaking on the same complaint, and that he was following
up the complaint and the motion for reconsideration of the order of dismissal of the Tanodbayan. Furthermore, respondent Laureta as his co-respondent Ilustre's lawyer had control of the proceedings. As stressed by this Court in an early case, as such lawyer, "Whatever steps his client takes should be within his knowledge and responsibility. Indeed, Canon 16 of the Canons of Legal Ethics should be reminded him that '(a) lawyer should use his best efforts to restrain and to prevent his clients from doing those things which the lawyer himself ought not to do, particularly with reference to their conduct towards courts, judicial officers, jurors, witnesses and suitors. If a client persists in such wrongdoing the lawyer should terminate their relation/ " (In Re: Contempt Proceedings in Surigao Mineral Reservation Board vs. Cloribel, 31 SCRA 1, 23) Respondent Laureta manifestly failed to discharge such responsibility. For all intents and purposes, he appears to have encouraged and abetted his client in denigrating the members of the First Division of this Court, by baselessly charging them with rendering an "unjust" resolution with "deliberate bad faith," because of his stubborn in406
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sistence on his untenable arguments which had been rejected as without merit by the Court's First Division, whose Resolution was upheld by the Court en banc. Worse, the dissemination in the print and broadcast media in bold captions falsely depicting the Justices as "FAC(ING) GRAFT CHARGES" instead of the baseless rantings of a disgruntled litigant appear to have been timed to place them in a bad light at the height of the Christmas season. We come now to the specific accusations of respondents. They charge Associate Justices Vicente Abad Santos (retired) then Chairman of the First Division of the Supreme Court as of May 14, 1986, Andres Narvasa, Ameurfina M. Herrera, and Pedro Yap for knowingly and deliberately rendering their "unjust, extended Resolution of May 14, 1986" dismissing their petition in this case with manifest and evident bad faith to make the clients of Atty. Sedfrey A. Ordoez (now the Solicitor General) the "illegal owners" of the estates of Digna Maravilla, thereby causing the heirs of Ponciano Maravilla (Digna's eldest brother) undue injury by depriving them of their rights over the
estates of Digna Maravilla (Charge No. Three before the Tanodbayan). They further charge Justice Yap (and Atty. Sedfrey Ordoez) of having "persuad(ed), induc(ed) and influenc(ed) the members of the newly organized First Division into promulgating their "unjust, extended minute Resolution of 14 May 1986" (Charge No. One before the Tanodbayan), which Resolution, (the "Division Resolution," for short) is herewith attached as Annex "A". Preliminarily, respondents deny that respondent Ilustre lost three times in this Court. It cannot be denied, however, that, as stated in the Resolution of October 28, 1986 of the Court en banc, this is the third time (in fact, the fourth, if we include Fernandez, et al. vs. Maravilla, L-18799, 10 SCRA 589 [1964]) that a controversy involving the estate of the late Digna Maravilla is elevated to this Court. The first was in G.R. No. L23225 (37 SCRA 672 [1971], where this Court ruled:
"IN VIEW OF THE FOREGOING, the decree of the court below denying probate of the 1944 will of Digna Maravilla (Exhibit 'A') is reversed and the said testament is hereby ordered probated.
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Let the records be returned to the Court of origin for further proceedings conformable to law. x x x"
As stated in the en banc Resolution of October 28, 1986 (hereto attached as Annex "B", and hereinafter referred to as the "Banc Decision") while respondent Ilustre was not a party in that case, upon remand of the case to the probate Court, she and other children of the deceased brothers and sisters of the testatrix filed two Motions for Intervention. Respondent Ilustre's participation in the estate involved, therefore, harks back to that first case. The Court of Appeals resolved the issue of intervention in CA-G.R. No. 05394, entitled "Heirs of Pastor Maravilla, et al. vs. Hon. Ernesto S. Tengco, et al." in a Decision penned by Justice Venicio Escolin (hereinafter referred to as the "Escolin Decision") wherein it was categorically ruled that there was no point to allowing intervention on the part of respondent Ilustre, et als., "for failure to show any right or interest in the estate in question." Thus:
"(2) As heretofore stated, private respondents, in their counterpetition for mandamus, seek this Court's resolution on the
petitioners' motion for intervention in Sp. Proc. No. 4977. In their respective pleadings and memoranda, the parties have lengthily discussed the issue of whether or not petitioners may be allowed to intervene; and the same may as well be determined in the present case, if only 'to avoid or, at least, minimize further protracted controversy' between the parties (PCIB vs. Hon. Escolin, 56 SCRA 266). A resolution of this issue should render moot and academic the question anent the disqualification of respondent Judge. We agree with private respondents that petitioners' motions for intervention are devoid of merit, for failure on their part to show any right or interest in the estate in question. There is no dispute that the last will and testament of the late Digna Maravilla had already been admitted to probate in a final judgment which the Supreme Court promulgated on March 2, 1971 (G.R. No. L-23225). In the said will, Digna instituted her husband Herminio Maravilla as x x x x x x The above testamentary provision for the universal heirship of Herminio Maravilla over the residue of the decedent's present and future property legally and completely excluded the petitioners, as
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collateral relatives of the testatrix, from inheriting any part of the latter's estate through intestate succession or mixed succession. Having no forced or compulsory heirs, except her husband, the testatrix had the absolute freedom to institute the latter as her sole, universal heir, and such freedom is recognized by Article 842 of the Civil Code, which provides:
'ART. 842. One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having capacity to succeed. One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitime of said heirs."
There is therefore no point in allowing the petitioners, who clearly appear to have no interest in the estate, to intervene in the proceedings involving the settlement thereof. x x x x x x"
The aforesaid Decision was affirmed by this Court in G.R. No. L-46155 on November 9, 1977 and has become final. That was the second case involving the estate filed before this Court.
Respondents' contention, therefore, that the statement in the Banc Resolution "that the Court of Appeals had denied intervention" is an "unadulterated distortion of the facts" is obviously erroneous and intended to mislead. The "Escolin Decision" (in CA-G.R. No. 05394-R), which had become final, also finally foreclosed any claim that respondent Ilustre, and those who sought to intervene with her, may have had on the estate of Digna Maravilla. In unmistakable terms, what the Court of Appeals held in that Decision, affirmed by this Court, bears repeating:
'The above testamentary provision for the universal heirship of Herminio Maravilla over the residue of the decedent's present and future property legally and completely excluded the petitioners, as collateral relatives of the testatrix, from inheriting any part of the latter's estate through intestate succession or mixed succession. x x x"
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To circumvent that judgment, however, two years later, or on February 29, 1979, respondent Ilustre, with respondent Laureta as counsel, filed a complaint for partition of Digna Maravilla's estate and for damages against the heirs of Digna Maravilla's husband, who had then passed away (docketed as Civil Case No. X-404), before the Court of First Instance of Negros Occidental, San Carlos City, Branch X, presided over by Judge Antonia Corpuz Macandog. That Court, after declaring defendants therein (private respondents in the petition under review) in default, ordered "all properties of Digna Maravilla mentioned in this case to go back to their trunk of origin, the plaintiffs herein who are represented by Eva Maravilla Ilustre and Eva Maravilla Ilustre herself' (hereinafter referred to as the "Macandog Decision"). In addition, the judgment awarded damages to the respondent Ilustre, et als., (the plaintiffs therein), and the sum of P100,000.00 to their counsel, respondent Laureta. A special civil action for certiorari was filed by the defeated parties (private respondents in the petition under review) before this Court, docketed as G.R. No. L-58014, praying that the lower Court's declaration of default in Civil Case No. X-404 and all other actions or decisions taken thereafter be declared null and void and that the dismissal of the complaint be ordered. On January 21,
1982, this Court resolved to refer the case to the Court of Appeals in aid of its appellate jurisdiction, questions of fact being involved. In a Decision dated January 14, 1983, the Court of 1 Appeals (Fourth Division), in AC-G.R. SP No. 13680 (hereafter called the "Busran Decision"), dismissed the petition and denied certiorari stating in one breath that "the judgment subject of assail had long become final" (at p. 13), and in another 'for all we know, the judgment below had already attained finality long ago." The reason relied upon was that petitioners therein had the remedy of appeal but instead availed of Certiorari, which is not a substitute therefor. On motion for reconsideration, however, filed by petitioners
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1
Composed of Justices Busran (ponente), Coquia and Zosa, as
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(private respondents in the petition under review), in that appealed case (AC-G.R. SP No. 13680), the same Court of 2 Appeals (Fourth Special Cases Division) in its Resolution of January 20, 1984 (the "Javellana Resolution"), reconsidered and set aside the "Busran Decision" and entered another one: "1. Annulling the order of default of the Hon. respondent Court dated 29 April 1980 and its decision dated 11 August 1981; and 2. Dismissing private respondents' complaint in Civil Case No. X-404 and ordering the Hon. respondent Court not to take further action therein." Respondent Ilustre challenged that reversal in the present Petition for Review filed on October 22, 1984. This is the third case brought before this Court involving the same estate. Review was denied in an extended minute Resolution by the First Division of this Court in the challenged Resolution of May 14,1986, for the following reasons:
'The appealed Decision stands on firm legal grounds. (1) The Order of Default of the Trial Court was issued in grave abuse of discretion. The Answer was filed only one day late besides the fact that when so filed, the Order of default had not yet been issued by the Trial Court. (2) While appeal is, indeed, the remedy from a judgment by default, Certiorari may be resorted to when a party has been illegally declared in default (Omico Mining & Industrial Corporation vs. Vallejos, 63 SCRA 300-301 [1975]), or where it is necessary to restore order to proceedings in the Court below (Lim Tanhu vs. Ramolete, 66 SCRA 462-463 [1975]). (3) More importantly, the judgment of the Trial Court, in Civil Case No. X-404 declaring that the Testatrix's collateral relatives have a rightful claim to her estate to the exclusion of the husband who was designated her sole and universal heir, nullifies the Will already probated by final judgment and overturns the pronouncements of both the Appellate Court and this Court on the case. There being former judgments on the issues which have become
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Composed of Justices Cuevas, Mendoza and Javellana (ponente).
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OL. 148, MARCH 12, 1987 In Re: Wenceslao Laureta
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final, rendered by Courts having jurisdiction of the subject matter and the parties, the said judgments having been rendered on the merits, and there being between the prior and subsequent action identity of parties, subject matter and substantial identity of cause of action, it is clear that the complaint below in Civil Case X-404 is barred by the principle of res adjudicata, and whatever transpired therein are null and void ab initio and without any legal effect. To rule otherwise would upset the fundamental issue on which res judicata rests that parties ought not to be permitted to litigate the same issue more than once, that when a right or fact has been judicially determined, the judgment of the Court, so long as it remains unreversed, should be conclusive upon the parties and those in privity with them in law or estate (Sarabia vs. Sec. of Agriculture and Natural Resources, 2 SCRA 54 [1961]). ACCORDINGLY, the review sought for is denied and respondent Court's judgment in CA-G.R. SP No. 13080 is hereby affirmed.
SO ORDERED."
Respondents decry the fact that the First Division set aside the due course Order and denied review in an extended Minute Resolution instead of in a signed Decision. They allege that said Resolution was "railroaded with such hurry/promptitude unequalled in the entire history of the Supreme Court under circumstances that have gone beyond the limits of legal and judicial ethics," unduly "persuaded, induced and influenced" by Solicitor General Ordoez and Justice Pedro Yap. Nothing is farthest from the truth. As explained in the "Banc Resolution"
'The petition for review was assigned to the then First Division of seven Justices, which initially gave it due course because the resolution of the Intermediate Appellate Court had reversed a decision originally rendered by the then Court of Appeals, and in order to have more time f or further study. Pleadings were submitted, the last being on May 3, 1985, which can be considered as the date when this case was submitted for resolution, The First Division of seven (7) was not able to act on the case up to the February, 1986 political upheaval. The last incident in the case was a motion for the early release of decision filed by petitioner on November 19,1985.
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When this Court was reorganized in April of 1986, the membership of the First Division was reduced to five (5) Justices. Taking account of the motion of petitioner for early release of decision, the new First Division, then chairmanned by Justice Abad Santos, realizing that the doctrine of res judicata was clearly applicable not only as to the probate of the will but also as to the heirship of petitioner, among others, and their right to intervene and participate in the proceedingsresolved, on May 14, 1986 to dismiss the petition through an extended resolution which at the same time recalled the due course order. The new Division of 5 acted unanimously."
The recall of a due course Order after a review of the records of the case is a common occurrence in the Court. Respondents speak as if it were only their petition which has been subjected to such recall. They have lost all
objectivity in this regard. They are hardly qualified, and cannot presume to speak of the "entire history" of the Supreme Court. As to the participation of Justice Yap in the case, the "Banc Resolution" stated:
"Justice Yap clarified that he was on official mission to Switzerland for the Presidential Commission on Good Government after his appointment to the Supreme Court on April 11, 1986 and did not assume his position in the Supreme Court until his return on May 2, 1986. When the resolution of dismissal on May 14, 1986 was issued, Justice Yap was unaware that Atty. Sedfrey Ordoez was private respondent's counsel. On June 11, 1986, petitioner filed a motion for reconsideration, which was taken up by the First Division on July 9,1986 with Justice Abad Santos still the Chairman. This time, Justice Yap, realizing that his former partner, Atty. Ordoez, had submitted the pleadings for petitioner, inhibited himself and Justice Edgardo L. Paras was designated under Special Order No. 21, dated July 9, 1986, to sit in the Division in his place. The motion for reconsideration was denied with finality on July 9,1986. Justice Yap was designated Chairman of the First Division on July 14, 1986. On August 7, 1986, petitioner asked leave to file a second motion for reconsideration, which was denied on September 3, 1986, entry of judgment of the May 14, 1986 resolution having been made on July 28, 1986. Justice Yap again took no part in the deliberation of the case."
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But respondents continue to claim derisively that Justice Yap could not have been "unaware" of the appearance of Atty. Sedfrey Ordoez. They reacted by saying "tell it to the marines" (Letters of November 3, 1986 to Justices Narvasa, Herrera, and Cruz, at p. 8, respectively). But that was the true and untarnished fact. With so many cases being handled by the Court, the appearances of lawyers during deliberative sessions very often escape attention, concentration being centered on the issues to be resolved. Respondents also fault the Court for "still recogniz(ing) Atty. Ordoez as counsel" for their opponents in the case. In the same "Banc Resolution," it was clarified:
"A copy of the resolution, dated May 14, 1986, was sent by the
Releasing Clerks to Atty. Sedfrey A. Ordoez as his name still appears on the cover page of the Rollo. It was not necessarily because the Supreme Court 'still recognizes him as counsel for respondents' " (at p.4)
The fact of the matter is that even Atty. Laureta continued to recognize Atty. Ordoez as counsel as shown by his pleadings filed before the Court, which inevitably contained the notation "copy furnished Atty. Sedfrey Ordoez." No withdrawal of appearance having been presented by Atty. Ordoez in the main petition, his name continues to be in the Rollo of the case and the personnel concerned continue to furnish him with copies of Resolutions of this Court. In respect of the charge that the Resolutions of the First Division of May 14, 1986, July 9, 1986 denying the Motion for Reconsideration with finality, and September 3, 1986 denying leave to file a second motion for reconsideration since entry of judgment of the May 14, 1986 Resolution had been made on July 28, 1986, were "unjust" and were "railroaded," the Banc Resolution, adopting the Division Resolution, explained:
"The aforesaid resolutions were by no means 'railroaded.' The pleadings filed by the parties, as in any other case, were included in the Agenda of the First Division as soon as feasible. The Division acts promptly on all Agenda items, and the minutes of its deliberations are released as soon as possible after Agenda day.
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x x x x x x "The dispositions in this case were arrived at after careful study. Because a case is resolved against the interests of a party, does not mean that it is an 'unjust decision;' or that it has been 'railroaded.' This Division declares without hesitation that it has consistently rendered justice without fear or favor." (at p. 4)
Respondents insist that the doctrine of "res judicata" is inapplicable. In their own words "the ordered probate of the 1944 Will of Digna Maravilla by judgment of the Supreme Court in G.R. No. L-23225 is conclusive only as to the genuineness and due execution of said will, but not upon the validity of testamentary provision, particularly with the invalid designation of Herminio Maravilla as sole
and universal heir of Digna Maravilla." On this point, the "Javellana Resolution," in reversing the "Busran Decision" (AC-G.R. SP No. 13680), aptly held:
'The then Court of Appeals held that the questioned decision does not run counter to the decision of the Hon. Supreme Court in G.R. No. L-23225 admitting the will of Digna Maravilla to probate because the latter refers to the extrinsic validity of the will, while the former concerns its intrinsic validity. We cannot agree with this observation because it is quite clear from the questioned decision that the will was in effect declared not to have been freely and voluntarily executed by the deceased Digna Maravilla but was the result of the evil and fraudulent machinations of her husband, Herminio Maravilla, and sets aside said will. The declaration that private respondents, as collateral relatives of the deceased Digna Maravilla, are entitled to her estate, is an indication that the Hon. respondent Court has nullified the will. Private respondents are not compulsory heirs and, in the absence of their being named legatees or devisees in the will, they could only lay claim to the estate of Digna Maravilla if the latter died without a will, pursuant to Art. 1003 of the New Civil Code, to wit:
'Art. 1003. If there are no descendants, ascendants, illegitimate children or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the f ollowing articles.' 415
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"However, assuming arguendo, that the matter complained of by private respondents referred only to the intrinsic validity of the will, still, it was improper for them to have instituted a separate action in a court other than that in which the probate proceeding was pending. x x x x x x
' lt
seems clear from these provisions of the law that while the estate is
being settled in the Court of First Instance in a special proceeding, no ordinary action can be maintained in that court, or in any other court, by a person claiming to be the heir, against the executor or against other persons claiming to be heirs, for the purpose of having the rights of the plaintiffs in the estate determined. The very purpose of the trial or hearing provided for in section 753 is to settle and determine those questions, and until they are settled and determined in that proceeding and under that section no action such as the present one can be maintained.
Considering that the "Escolin Decision," as affirmed by this Court on November 9, 1977 in G.R. No. L-46155, had become final, the "Javellana Resolution" aptly observed:
"3. The questioned decision of the Hon. respondent Court dated 12 August 1981 (referring to the 'Macandog Decision') unsettles and reviews issues which had long been laid to rest by the Hon. Supreme Court and the then Court of Appeals."
But respondents ask: if res judicata were applicable, why did this Court, in G.R. No. L-50814, refer the case to the Court of Appeals? The answer is simple. The issue of whether the remedy of petitioners in that case was appeal and not certiorari had to be resolved. If certiorari were proper, then the "Macandog Decision" had not become final. If appeal, its finality would be the consequence. The "Javellana Resolution," which reversed the "Busran Decision," held that Certiorari was proper when a party has been illegally declared in default. It follows that the "Macandog Decision" had not attained finality. Still undaunted, respondents claim that the Court of Appeals "deliberately evaded/divaricated" two important issues:
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(1) that the judgment of the Trial Court (in CC No. X-404) had attained finality as in fact the Court of Appeals had held that the "judgment of assail had long become final," and (2) that Digna Maravilla's husband could not be instituted as the sole and universal heir of the wife on indestructible ground of moral impossibility and could not inherit wife's vast estate on the ground of utter unworthiness.'' The penchant of respondents for making misleading statements is again obvious. It was not in the "Javellana Resolution" that the Court of Appeals held that "the judgment of assail (referring to the 'Macandog Decision') had long become final." That was in the "Busran Decision," which was precisely reversed by the "Javellana Resolution." As to the alleged unworthiness of the husband to inherit from his wife, the "Javellana Resolution" pointedly observed:
'The last will and testament of Digna Maravilla which instituted
her husband, Herminio Maravilla, as her sole and universal heir, was admitted to probate, pursuant to a final judgment of the Hon. Supreme Court in G.R. No. L-23225, 27 February 1971. This probate foreclosed all questions as to the age and mental capacity of the testator, the signing of the document by the testator, or by someone in his behalf, and the acknowledgment of the instrument by him in the presence of the required member of witnesses who affix their signatures to the will to attest the act. In re Estate of Johnson, 39 Phil. 156, 168). Yet, more than ten years later, the Hon. respondent Court would nullify the effects of the probate by declaring that Digna Maravilla did not voluntarily and sanely execute the probated last will and testament, nullifying the institution of Herminio Maravilla as her sole and universal heir, and ordering the return of the properties of Digna Maravilla to the trunk of origin."
The soundness of the legal conclusions arrived at in the "Escolin Decision" and "Javellana Resolution" commends itself. Only a disgruntled litigant and a defeated lawyer would claim that those judgments were accepted "hook, line and sinker" by this Court. The doctrine of res judicata is inescapably applicable. Thus it was that the First Division, in its challenged Resolution of May 14, 1986, found it unnecessary, after further study, to have a signed Decision and, instead, recalled the due course Order, which it had previously issued to
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give it "more time for further study" (p. 2, Banc Resolution, October 28, 1986). Contrary to respondents' claim, the Court is not "duty bound" to render signed Decisions all the time. It has ample discretion to formulate Decisions and/or minute Resolutions, provided a legal basis is given, depending on its evaluation of a case. But obdurately enough, respondents have seen fit to take their case to the Tanodbayan charging the members of the First Division of this Court collectively with having knowingly and deliberately rendered an "unjust extended minute Resolution" with deliberate bad faith in violation of 3 Article 204 of the Revised Penal Code and for deliberately causing "undue injury" to respondent Ilustre and her coheirs because of the "unjust Resolution" promulgated, in 4 violation of the AntiGraft and Corrupt Practices Act. Respondents' action is brazenly unjustifiable. Nor can
they plead ignorance. As aptly declared in the Chief Justice's Statement of December 24, 1986, which the Court hereby adopts in toto, "(I)t is elementary that the Supreme Court is supremethe third great department of government entrusted exclusively with the judicial power to adjudicate with finality all justiciable disputes, public and private. No other department or agency may pass upon its judgments or declare them 'unjust.' " It is elementary that "(A)s has ever been stressed since the early case of Arnedo vs. Llorente (18 Phil. 257, 263 [1911]) 'controlling and irresistible reasons of public policy and of sound practice in the courts demand that at the risk of occasional error, judgments of courts determining controversies
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3
"ART. 204. Knowingly rendering unjust judgment.Any judge who
shall knowingly render an unjust judgment in any case submitted to him for decision, shall be punished by prision mayor and perpetual absolute disqualification.
4
"SEC. 3. Corrupt practices of public officers.
x x x (e) Causing any undue injury to any party, including the Government, or any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. x x x"
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submitted to them should become final at some definite time fixed by law, or by a rule of practice recognized by law, so as to be thereafter beyond the control even of the court which rendered them for the purpose of correcting errors of fact or of law, into which, in the opinion of the court it may have fallen. The very purpose for which the courts are organized is to put an end to controversy, to decide the questions submitted to the litigants, and to determine the respective rights of the parties.' " (Luzon Brokerage Co., Inc. vs. Maritime Bldg., Co., Inc., 86 SCRA 305, 316-317) Respondents should know that the provisions of Article 204 of the Revised Penal Code as to "rendering knowingly unjust judgment" refer to an individual judge who does so "in any case submitted to him for decision" and even then, it is not the prosecutor who would pass judgment on the
"unjustness" of the decision rendered by him but the proper appellate court with jurisdiction to review the same, either the Court of Appeals and/or the Supreme Court. Respondents should likewise know that said penal article has no application to the members of a collegiate court such as this Court or its Divisions who reach their conclusions in consultation and accordingly render their collective judgment after due deliberation. It also follows, consequently, that a charge of violation of the AntiGraft and Corrupt Practices Act on the ground that such a collective decision is "unjust" cannot prosper. The Chief Justice's Statement of the supremacy of the Supreme Court's judicial power is by no means a "display of arrogance" as per respondents' puerile contention, but a restatement of the fundamental principle of separation of powers and checks and balances under a republican form of government such as ours, viz. that the three co-equal branches of government, the executive, legislative and judicial, are each supreme and independent within the limits of its own sphere. Neither one can interfere with the performance of the duties of the other. (Forbes vs. Chuoco, 16 Phil. 534 [1910]). As restated by the late Justice Jose P. Laurel in the 1936 landmark case of Angara vs. Electoral Commission (63 Phil. 134), our Constitution "as 'a definition of the powers of government' placed upon the judiciary the great burden of 'determining the nature,
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scope and extent of such powers' and 'when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments . . . but only asserts the solemn and sacred obligation entrusted to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which the instrument secures and guarantees to them. " As an officer of the Court, respondent Laureta, should realize that the cardinal principle he would grossly impair and violate is that of the independence of the judiciary, which the members of the bar are called upon to defend and preserve. The independence of the judiciary is the indispensable means for enforcing the supremacy of the Constitution and the rule of law. To subject to the threat and ordeal of investigation and
prosecution, a judge, more so a member of the Supreme Court for official acts done by him in good faith and in the regular exercise of official duty and judicial functions is to subvert and undermine that very independence of the judiciary, and subordinate the judiciary to the executive. "For it is a general principle of the highest importance to the proper administration of justice that a judicial officer in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself. Liability to answer to everyone who might feel himself aggrieved by the action of the j udge would be inconsistent with the possession of this freedom, and would destroy that independence without which no judiciary can be either respectable or useful." (Bradley vs. Fisher, 80 U.S. 335). Indeed, resolutions of the Supreme Court as a collegiate court, whether en banc or division, speak for themselves and are entitled to full faith and credence and are beyond investigation or inquiry under the same principle of conclusiveness of enrolled bills of the legislature. (U.S. vs. Pons, 34 Phil. 729; Gardiner, et al. vs. Paredes, et al., 61 Phil. 118; Mabanag vs. Lopez Vito, 78 Phil. 1) The Supreme Court's pronouncement of the doctrine that "(I)t is well settled that the enrolled bill. . . is conclusive upon the courts as regards the tenor of the
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measure passed by Congress and approved by the President. If there has been any mistake in the printing of the bill before it was certified by the officers of Congress and approved by the Executive [as claimed by petitionerimporter who unsuccessfully sought refund of margin fees] on which we cannot speculate, without jeopardizing the principle of separation of powers and undermining one of the cornerstones of our democratic systemthe remedy is by amendment or curative legislation, not by judicial decree" is fully and reciprocally applicable to Supreme Court orders, resolutions and decisions, mutatis mutandis. (Casco Phil. Chemical Co., Inc. vs. Gimenez, 7 SCRA 347, 350. (Citing Primicias vs. Paredes, 61 Phil. 118, 120; Mabanag vs. Lopez Vito, 78 Phil. 1; Macias vs. Comelec, 3 SCRA 1) The Court has consistently stressed that "the doctrine of separation of powers calls for the executive, legislative and judicial departments being left alone to discharge their
duties as they see fit" (Tan vs. Macapagal, 43 SCRA 677). It has thus maintained in the same way that the judiciary has a right to expect that neither the President nor Congress would cast doubt on the mainspring of its orders or decisions, it should refrain from speculating as to alleged hidden forces at work that could have impelled either coordinate branch into acting the way it did. The concept of separation of powers presupposes mutual respect by and between the three departments of the government. (Tecson vs. Salas, 34 SCRA 275, 286-287) To allow litigants to go beyond the Court's resolution and claim that the members acted "with deliberate bad faith" and rendered and "unjust resolution" in disregard or violation of the duty of their high office to act upon their own independent consideration and judgment of the matter at hand would be to destroy the authenticity, integrity and conclusiveness of such collegiate acts and resolutions and to disregard utterly the presumption of regular performance of official duty. To allow such collateral attack would destroy the separation of powers and undermine the role of the Supreme Court as the final arbiter of all justiciable disputes. Dissatisfied litigants and/or their counsels cannot without violating the separation of powers mandated by the Con421
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stitution relitigate in another forum the final judgment of this Court on legal issues submitted by them and their adversaries for final determination to and by the Supreme Court and which fall within the judicial power to determine and adjudicate exclusively vested by the Constitution in the Supreme Court and in such inferior courts as may be established by law. In resume, we find that respondent Ilustre has transcended the permissible bounds of fair comment and criticism to the detriment of the orderly administration of justice in her letters addressed to the individual Justices quoted in the show-cause Resolution of this Court en banc, particularly the underlined portions thereof; in the language of the charges she filed before the Tanodbayan quoted and underscored in the same Resolution; in her statements, conduct, acts and charges against the Supreme Court and/or the official actions of the Justices concerned
and her ascription of improper motives to them; and in her unjustified outburst that she can no longer expect justice from this Court. The fact that said letters are not technically considered pleadings, nor the fact that they were submitted after the main petition had been finally resolved does not detract from the gravity of the contempt committed. The constitutional right of freedom of speech or right to privacy cannot be used as a shield for contemptuous acts against the Court. We likewise find that Atty. Laureta has committed acts unbecoming an officer of the Court for his stance of dangling threats of bringing the matter to the "proper forum" to effect a change of the Court's adverse Resolution; for his lack of respect for and exposing to public ridicule, the two highest Courts of the land by challenging in bad faith their integrity and claiming that they knowingly rendered unjust judgments (Montecillo vs. Gica, 60 SCRA 234 [1974]); for authoring, or at the very least, assisting and/or abetting and/or not preventing the contemptuous statements, conduct, acts and malicious charges of his client, respondent Ilustre, notwithstanding his disclaimer that he had absolutely nothing to do with them, which we find disputed by the facts and circumstances of record as above stated; for totally disregarding the facts and circumstances and legal considerations set forth in this
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Court's Resolutions of the First Division and en banc, as the Tribunal of last resort; for making it appear that the Justices of this Court and other respondents before the Tanodbayan are charged with "graft and corruption" when the complaint before the Tanodbayan, in essence, is a tirade from a disgruntled litigant and a defeated counsel in a case that has been brought thrice before this Court, and who would readily accept anything but the soundness of the judgments of the Courts concerned, all with the manifest intent to bring the Justices of this Court and of the Court of Appeals into disrepute and to subvert public confidence in the Courts. Atty. Laureta should be reminded that his first duty is not to his client but to the administration of justice; to that end, his client's success is wholly subordinate; and his conduct ought to and must always be scrupulously observant of law and ethics. For like the Court itself, "a
lawyer is an instrument or agency to advance the ends of justice." (Surigao Mineral Conservation Board vs. Cloribel, 31 SCRA 1 [1970]; Castaeda vs. Ago, 65 SCRA 505 [1975]). In assessing the penalty on respondent Laureta, the Court notes that "disciplinary proceedings against lawyers are sui generis. Neither purely civil nor purely criminal, they do not involve a trial of an action or a suit, but are rather investigations by the Court into the conduct of one of its officers. Not being intended to inflict punishment, it is in no sense a criminal prosecution. Accordingly, there is neither a plaint nor a prosecutor therein. It may be initiated by the Court motu proprio. Public interest is its primary objective, and the real question for determination is whether or not the attorney is still a fit person to be allowed the privileges as such. Hence, in the exercise of its disciplinary powers, the Court merely calls upon a member of the Bar to account for his actions as an officer of the Court with the end in view of preserving the purity of the legal profession and the proper and honest administration of justice by purging the profession of members who by their misconduct have proved themselves no longer worthy to be entrusted with the duties and responsibilities pertaining to the office of an attorney." Viewed in the light of the demonstrated persistence of grave misconduct and undermining public con423
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fidence in the honor and integrity of the Court and its members (at a time when the Court is exerting every effort to regain public confidence in our courts after the trauma and debacle undergone by them in the past regime), the Court shall impose upon him an indefinite suspension, leaving it to him to prove at some future and opportune time, that he shall have once again regained the fitness to be allowed to resume the practice of law as an officer of the Courts. (In re: Almacen, 31 SCRA 562) ACCORDINGLY, (1) respondent Eva Maravilla Ilustre is hereby held in contempt, and is hereby fined in the amount of P1,000.00 only, mindful that the power of contempt should be exercised on the preservative and not on the vindictive principle of punishment; and (2) Atty. Wenceslao Laureta is found guilty of grave professional misconduct, rendering him unfit to continue to
be entrusted with the duties and responsibilities belonging to the office of an attorney, and is hereby suspended from the practice of law until further Orders, the suspension to take effect immediately. Let copies of this Resolution be circulated to all Courts of the country for their information and guidance, and spread in the personal record of Atty. Wenceslao Laureta. SO ORDERED. Teehankee, C.J., Fernan, Narvasa, MelencioHerrera, Alampay, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur. Yap, J., no part. Notes.An attorney's duty of prime importance is to observe and maintain the respect due to the courts of justice and judicial officers. (People vs. Estebia; 27 SCRA 10; Cruz vs. Government Service Insurance System, 27 SCRA 174; Surigao Mineral Reservation Board vs. Cloribel, 31 SCRA 1.) The standard of personal and professional integrity which should be applied to persons admitted to practice law is not
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SUPREME COURT REPORTS ANNOTATED Republic vs. Feliciano
satisfied by such conduct as merely enables them to escape the penalties of criminal law. Good moral character includes at least common honesty. (Royong vs. Oblena, 1 SCRA 859.) o0o
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208
SUPREME COURT REPORTS ANNOTATED Demetria vs. Alba No. L-71977. February 27,1987.
*
DEMETRIO G. DEMETRIA, M.P., AUGUSTO S. SANCHEZ, M.P., ORLANDO S. MERCADO, M.P., HONORATO Y. AQUINO, M.P., ZAFIRO L. RESPICIO, M.P., DOUGLAS R. CAGAS, M.P., OSCAR F. SANTOS, M.P., ALBERTO G. ROMULO, M.P., CIRIACO R. ALFELOR, M.P., ISIDORO E. REAL, M.P., EMIGDIO L. LINGAD, M.P., ROLANDO C. MARCIAL, M.P., PEDRO M. MARCELLANA, M.P., VICTOR S. ZIGA, M.P., and ROGELIO V. GARCIA, M.P., petitioners, vs. HON. MANUEL ALBA in his capacity as the MINISTER OF THE BUDGET and VICTOR MACALINGCAG in his capacity as the TREASURER OF THE PHILIPPINES, respondents.
Constitutional Law; The Court may pass upon constitutionality of Presidential Decree No. 1177, otherwise known as the "Budget Reform Decree of 1977".Indeed, where the legislature or the executive branch is acting within the limits of its authority, the judiciary cannot and ought not to interfere with the former. But where the legislature or the executive acts beyond the scope of its constitutional powers, it becomes the duty of the judiciary to declare what the other branches of the government had assumed to do, as void. This is the essence of judicial power conferred by the Constitution "In one Supreme Court and in such lower courts as may be established by law" [Art. VIII, Section I of the 1935 Constitution; Art. X, Section 1 of the 1973 Constitution and which was adopted as part of the Freedom Constitution, and Art. VIII, Section 1 of the 1987 Constitution] and which power this Court has exercised in many instances. Same; Same; Paragraph 1 of Section 44 of PD 1177 being repugnant to Section 16(5) Article VIII of the 1973 Constitution declared null and void.Paragraph 1 of Section 44 of P.D. No. 1177 unduly over-extends the privilege granted under said Section 16[5], It empowers the President to indiscriminately transfer funds from one department, bureau, office or agency of the Executive
Department to any program, project or activity of any department, bureau or office included in the General Appropriations Act or approved after its
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*
EN BANC.
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VOL. 148, FEBRUARY 27, 1987 Demetria vs. Alba
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enactment, without regard as to whether or not the funds to be transferred are actually savings in the item from which the same are to be taken, or whether or not the transfer is for the purpose of augmenting the item to which said transfer is to be made. It does not only completely disregard the standards set in the fundamental law, thereby amounting to an undue delegation of legislative powers, but likewise goes beyond the tenor thereof. Indeed, such constitutional infirmities render the provision in question null and void.
PETITION for prohibition with preliminary injunction to review the constitutionality of first paragraph of Section 44 of Presidential Decree No. 1177. The facts are stated in the opinion of the Court. FERNAN, J.: Assailed in this petition for prohibition with prayer for a writ of preliminary injunction is the constitutionality of the first paragraph of Section 44 of Presidential Decree No. 1177, otherwise known as the "Budget Reform Decree of 1977." Petitioners, who filed the instant petition as concerned citizens of this country, as members of the National Assembly/Batasan Pambansa representing their millions of constituents, as parties with general interest common to all the people of the Philippines, and as taxpayers whose vital interests may be affected by the outcome of the reliefs 1 prayed for" listed the grounds relied upon in this petition as follows: "A. SECTION 44 OF THE 'BUDGET REFORM
DECREE OF 1977' INFRINGES UPON THE FUNDAMENTAL LAW BY AUTHORIZING THE ILLEGAL TRANSFER OF PUBLIC MONEYS. "B. SECTION 44 OF PRESIDENTIAL DECREE NO. 1177 IS REPUGNANT TO THE CONSTITUTION AS IT FAILS TO SPECIFY THE OBJECTIVES AND PURPOSES FOR WHICH THE PROPOSED TRANSFER OF FUNDS ARE TO BE MADE. "C. SECTION 44 OF PRESIDENTIAL DECREE NO. 1177 ALLOWS THE PRESIDENT TO OVERRIDE THE SAFEGUARDS, FORM AND PROCEDURE PRESCRIBED BY THE
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1
Petition, p. 3, Rollo. 210
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SUPREME COURT REPORTS ANNOTATED Demetria vs. Alba
CONSTITUTION IN APPROVING APPROPRIATIONS. "D. SECTION 44 OF THE SAME DECREE AMOUNTS TO AN UNDUE DELEGATION OF LEGISLATIVE POWERS TO THE EXECUTIVE. "E. THE THREATENED AND CONTINUING TRANSFER OF FUNDS BY THE PRESIDENT AND THE IMPLEMENTATION THEREOF BY THE BUDGET MINISTER AND THE TREASURER OF THE PHILIPPINES ARE WITHOUT OR IN EXCESS 2OF THEIR AUTHORITY AND JURISDICTION." Commenting on the petition in compliance with the Court resolution dated September 19,1985, the Solicitor General, for the public respondents, questioned the legal standing of petitioners, who were allegedly merely begging an advisory opinion from the Court, there being no justiciable controversy fit for resolution or determination. He further contended that the provision under consideration was enacted pursuant to Section 16[5], Article VIII of the 1973 Constitution; and that at any rate, prohibition will not lie from one branch of the government to a coordinate branch to enjoin the performance of duties within the latter's sphere of responsibility.
On February 27,1986, the Court required the petitioners to file a Reply to the Comment. This, they did, stating, among others, that as a result of the change in the administration, there is a need to hold the resolution of the present case in abeyance "until developments arise to 3 enable the parties to concretize their respective stands." Thereafter, We required public respondents to file a rejoinder, The Solicitor General filed a rejoinder with a motion to dismiss, setting forth as grounds therefor the abrogation of Section 16[5], Article VIII of the 1973 Constitution by the Freedom Constitution of March 25, 1986, which has allegedly rendered the instant petition moot and academic. He likewise cited the "seven pillars" enunciated by Justice Brandeis in Ashwander v. TVA, 297 4 U.S. 288 (1936) as basis for the peti_______________
2 3 4
pp. 6-7, Rollo, p. 169, Rollo. The relevant portions read as follows: 211
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tion's dismissal. In the case of Evelio B. Javier v. The Commission on Elections and Arturo F. Pacificador, G.R. Nos. 68379-81, September 22,1986, We stated that:
"The abolition of the Batasang Pambansa and the disappearance of the office in dispute between the petitioner and the
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"The Court developed, for its own governance in the case confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision. They are: "1. The Court will not pass upon the constitutionality of legislation in a friendly, nonadversary proceeding, declining because to decide such questions 'is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.' Chicago & Grand Trunk Ry, v. Wellman, 143 U.S. 339, 345. "2. The Court will not 'anticipate question of constitutional law in advance of the
necessity of deciding it.' Liverpool. N.Y. & P.S.S. Co. v. Emigration Commissioners, 113 U.S. 33, 39 . . . 'lt is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.' Burton v. United States. 196 U.S. 283, 295. "3. The Court will not 'formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied." Liverpool, N.Y. & P.S.S. Co. v. Emigration Commissioners, supra. "4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 191; Light v. United States, 220 U.S. 523, 538. Appeals from the highest court of a state challenging its decision of a question under the Federal Constitution are frequently dismissed because the
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private respondentsboth of whom have gone their separate ways could be a convenient justification for dismissing the case. But there are larger issues involved that must be resolved now, once and for all, not only to dispel the legal ambiguities here raised. The more important purpose is to manifest in the clearest possible terms that this Court will not disregard and in effect condone wrong on the simplistic and tolerant pretext that the case has become moot and academic. 'The Supreme Court is not only the highest arbiter of legal questions but also the conscience of the government. The citizen comes to us in quest of law but we must also give him justice. The two are not always the same. There are times when we cannot grant the latter because the issue has been settled and decision is no longer possible according to the law. But there are also times when although the dispute has disappeared, as in this case, it nevertheless cries out to be
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judgment can be sustained on an independent state ground. Berea College v. Kentucky, 211 U.S. 45, 53. "5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. Tyler v. The Judges, 179 U.S. 405; Hendrick v. Maryland, 235 U.S. 610, 621. Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right. Thus, the challenge by a public official interested only in
the performance of his official duty will not be entertained . . . In Fairchild v . Hughes, 258 U.S. 126, the Court affirmed the dismissal of a suit brought by a citizen who sought to have the Nineteenth Amendment declared unconstitutional. In Massachusetts v. Mellon, 262 U.S. 447, the challenge of the federal Maternity Act was not entertained although made by the Commonwealth on behalf of all its citizens. "6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits. Great Falls Mfg. Co. v. Attorney General, 124, U.S. 581. .. "7. 'When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.' Cromwell v. Benson, 285 U.S. 22, 62." [pp. 176-177, Rollo].
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resolved. Justice demands that we act then, not only for the vindication of the outraged right, though gone, but also for the guidance of and as a restraint upon the future."
It is in the discharge of our role in society, as above-quoted, as well as to avoid great disservice to national interest that We take cognizance of this petition and thus deny public respondents' motion to dismiss. Likewise noteworthy is the fact that the new Constitution, ratified by the Filipino people in the plebiscite held on February 2, 1987, carries verbatim section 16[5], Article VIII of the 1973 Constitution under Section 24[5], Article VI. And while Congress has not officially reconvened, We see no cogent reason for further delaying the resolution of the case at bar. The exception taken to petitioners' legal standing deserves scant consideration. The case of Pascual v. Secretary of Public Works, et. al., 110 Phil. 331, is authority in support of petitioners' locus standi. Thus:
"Again, it is well-settled that the validity of a statute may be contested only by one who will sustain a direct injury in consequence of its enforcement. Yet, there are many decisions nullifying at the instance of taxpayers, laws providing for the disbursement of public funds, upon the theory that 'the expenditure of public funds by an officer of the state for the purpose of administering an unconstitutional act constitutes a misapplication of such funds which may be enjoined at the request of a taxpayer. Although there are some decisions to the contrary, the prevailing view in the United States is stated in the American
Jurisprudence as follows:
'ln the determination of the degree of interest essential to give the requisite standing to attack the constitutionality of a statute, the general rule is that not only persons individually affected, but also taxpayers have sufficient interest in preventing the illegal expenditures of moneys raised by taxation and may therefore question the constitutionality of statutes requiring expenditure of public moneys. [11 Am. Jur. 761, Italics supplied.]' "
Moreover, in Tan v. Macapagal, 43 SCRA 677 and Sanidad v. Comelec, 73 SCRA 333, We said that as regards taxpayers' suits, this Court enjoys that open discretion to entertain the
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same or not. The conflict between paragraph 1 of Section 44 of Presidential Decree No. 1177 and Section 16[5], Article VIII of the 1973 Constitution is readily perceivable from a mere cursory reading thereof. Said paragraph 1 of Section 44 provides:
"The President shall have the authority to transfer any fund, appropriated for the different departments, bureaus, offices and agencies of the Executive Department, which are included in the General Appropriations Act, to any program, project or activity of any department, bureau, or office included in the General Appropriations Act or approved after its enactment."
On the other hand, the constitutional provision under consideration reads as follows:
"Sec. 16[5]. No law shall be passed authorizing any transfer of appropriations, however, the President, the Prime Minister, the Speaker, the Chief Justice of the Supreme Court, and the heads of constitutional commissions may by law be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations."
The prohibition to transfer an appropriation for one item to another was explicit and categorical under the 1973 Constitution. However, to afford the heads of the different branches of the government and those of the constitutional commissions considerable flexibility in the use of public
funds and resources, the constitution allowed the enactment of a law authorizing the transfer of funds for the purpose of augmenting an item from savings in another item in the appropriation of the government branch or constitutional body concerned. The leeway granted was thus limited. The purpose and conditions for which funds may be transferred were specified, i.e. transfer may be allowed for the purpose of augmenting an item and such transfer may be made only if there are savings from another item in the appropriation of the government branch or constitutional body. Paragraph 1 of Section 44 of P.D. No. 1177 unduly overextends the privilege granted under said Section 16[5]. It em215
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powers the President to indiscriminately transfer funds from one department, bureau, office or agency of the Executive Department to any program, project or activity of any department, bureau or office included in the General Appropriations Act or approved after its enactment, without regard as to whether or not the funds to be transferred are actually savings in the item from which the same are to be taken, or whether or not the transfer is for the purpose of augmenting the item to which said transfer is to be made. It does not only completely disregard the standards set in the fundamental law, thereby amounting to an undue delegation of legislative powers, but likewise goes beyond the tenor thereof. Indeed, such constitutional infirmities render the provision in question null and void. "For the love of money is the root of all evil: x x x" and money belonging to no one in particular, i.e. public funds, provide an even greater temptation for misappropriation and embezzlement. This, evidently, was foremost in the minds of the framers of the constitution in meticulously prescribing the rules regarding the appropriation and disposition of public funds as embodied in Sections 16 and 18 of Article VIII of the 1973 Constitution. Hence, the conditions on the release of money from the treasury [Sec. 18(1)]; the restrictions on the use of public funds for public purpose [Sec. 18(2)]; the prohibition to transfer an appropriation for an item to another [Sec. 16(5) and the requirement of specifications [Sec. 16(2)], among others, were all safeguards designed to forestall abuses in the
expenditure of public funds. Paragraph 1 of Section 44 puts all these safeguards to naught. For, as correctly observed by petitioners, in view of the unlimited authority bestowed upon the President, "x x x Pres. Decree No. 1177 opens the floodgates for the enactment of unfunded appropriations, results in uncontrolled executive expenditures, diffuses accountability for budgetary performance and entrenches the pork barrel system as the ruling party may well expand [sic] public money not on the basis of development 5 priorities but on political and personal expediency." The contention of public respondents that paragraph 1 of Section 44 of P.D. 1177 was enacted pur_______________
5
p. 14, Rollo. 216
216
suant to Section 16(5) of Article VIII of the 1973 Constitution must perf orce fall flat on its face. Another theory advanced by public respondents is that prohibition will not lie from one branch of the government against a coordinate branch to enjoin the performance of duties within the latter's sphere of responsibility. Thomas M. Cooley in his "A Treatise on the Constitutional Limitations," Vol. I, Eight Edition, Little, Brown and Company, Boston, explained:
"x x x The legislative and judicial are coordinate departments of the government, of equal dignity; each is alike supreme in the exercise of its proper functions, and cannot directly or indirectly, while acting within the limits of its authority, be subjected to the control or supervision of the other, without an unwarrantable assumption by that other of power which, by the Constitution, is not conferred upon it. The Constitution apportions the powers of government, but it does not make any one of the three departments subordinate to another, when exercising the trust committed to it. The courts may declare legislative enactments unconstitutional and void in some cases, but not because the judicial power is superior in degree or dignity to the legislative. Being required to declare what the law is in the cases which come before them, they must enforce the Constitution, as the paramount law, whenever a legislative enactment comes in conflict with it. But the courts sit, not to review or revise the legislative action, but to enforce the legislative
will, and it is only where they find that the legislature has failed to keep within its constitutional limits, that they are at liberty to disregard its action; and in doing so, they only do what every private citizen may do in respect to the mandates of the courts when the judges assume to act and to render judgments or decrees without jurisdiction. 'ln exercising this high authority, the judges claim no judicial supremacy; they are only the administrators of the public will. If an act of the legislature is held void, it is not because the judges have any control over the legislative power, but because the act is forbidden by the Constitution, and because the will of the people, which is therein declared, is paramount to that of their representatives expressed in any law.' [Lindsay v. Commissioners, & c., 2 Bay, 38, 61; People v. Rucker, 5 Col. 5; Russ v. Com., 210 Pa. St. 544; 60 Atl. 169, 1 L.R.A. [N.S.] 409,105 Am. St. Rep. 825]" (pp. 332-334).
Indeed, where the legislature or the executive branch is

217
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acting within the limits of its authority, the judiciary cannot and ought not to interfere with the former. But where the legislature or the executive acts beyond the scope of its constitutional powers, it becomes the duty of the judiciary to declare what the other branches of the government had assumed to do as void. This is the essence of judicial power conferred by the Constitution "in one Supreme Court and in such lower courts as may be established by law" [Art. VIII, Section 1 of the 1935 Constitution; Art. X, Section 1 of the 1973 Constitution and which was adopted as part of the Freedom Constitution, and Art. VIII, Section 1 of the 1987 Constitution] and ** which power this Court has exercised in many instances. Public respondents are being enjoined from acting under a provision of law which We have earlier mentioned to be constitutionally infirm. The general principle relied upon cannot therefore accord them the protection sought as they are not acting within their "sphere of responsibility" but without it. The nation has not recovered from the shock, and worst, the economic destitution brought about by the plundering of the Treasury by the deposed dictator and his cohorts. A provision which allows even the slightest possibility of a repetition of this sad experience cannot remain written in our statute books.
WHEREFORE, the instant petition is granted. Paragraph 1 of Section 44 of Presidential Decree No. 1177 is hereby declared null and void f or being unconstitutional. SO ORDERED.
_______________
**
Casanovas vs. Hord, 8 Phil. 125; McGirr vs. Hamilton, 30 Phil.
563; Compaia General de Tabacos vs. Board of Public Utility, 34 Phil. 136; Central Capiz vs. Ramirez, 40 Phil. 883; Concepcion vs. Paredes, 42 Phil. 599; US vs. Ang Tang Ho, 43 Phil. 6; McDaniel vs. Apacible, 44 Phil. 248; People vs. Pomar, 46 Phil. 440; Agcaoili vs. Suguitan, 48 Phil. 676; Government of P.I. vs. Springer, 50 Phil. 259; Manila Electric Co. vs. Pasay Transp. Co., 57 Phil. 600; People vs. Linsangan; 62 Phil. 464; People and Hongkong & Shanghai Banking Corp. vs. Jose O. Vera, 65 Phil. 56: People vs. Carlos, 78 Phil. 535; City of Baguio vs. Nawasa, 106 Phil. 144; City of Cebu vs. Nawasa, 107 Phil. 1112; Rutter vs. Esteban, 93 Phil. 68. 218
218
Teehankee, C.J. , Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur. Petition granted. Notes.The constitutional or unconstitutionality of legislation depends upon no other facts than those existing at the time of the enactment thereof, unaffected by the acts or omissions of law enforcement agencies, particularly those that take place subsequently to the passage or approval of the law. (Gonzales vs. Commission on Elections, 21 SCRA 774.) Republic Act No. 1383 insofar as it makes the National Waterworks and Sewerage Authority, the owner of all local waterworks systems in the Philippines, is unconstitutional upon the ground that it constitutes a taking of private property without just compensation and without due process of law. (Nawasa vs. Catolico, 19 SCRA 980.) For the purpose of obtaining a judicial declaration of the nullity of a statute passed by Congress, it is enough if the respondents or defendants named be the government officials who would give operation and effect to official action allegedly tainted with unconstitutionality. (J.M.
Tuazon and Company, Inc. Administration, 31 SCRA 413.) o0o
vs.
Land
Tenure
219
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-45081 July 15, 1936
JOSE A. ANGARA, petitioner, vs. THE ELECTORAL COMMISSION, PEDRO YNSUA, MIGUEL CASTILLO, and DIONISIO C. MAYOR,respondents. Godofredo Reyes for petitioner. Office of the Solicitor General Hilado for respondent Electoral Commission. Pedro Ynsua in his own behalf. No appearance for other respondents. LAUREL, J.: This is an original action instituted in this court by the petitioner, Jose A. Angara, for the issuance of a writ of prohibition to restrain and prohibit the Electoral Commission, one of the respondents, from taking further cognizance of the protest filed by Pedro Ynsua, another respondent, against the election of said petitioner as member of the National Assembly for the first assembly district of the Province of Tayabas. The facts of this case as they appear in the petition and as admitted by the respondents are as follows:
(1) That in the elections of September 17, 1935, the petitioner, Jose A. Angara, and the respondents, Pedro Ynsua, Miguel Castillo and Dionisio Mayor, were candidates voted for the position of member of the National Assembly for the first district of the Province of Tayabas; (2) That on October 7, 1935, the provincial board of canvassers, proclaimed the petitioner as member-elect of the National Assembly for the said district, for having received the most number of votes; (3) That on November 15, 1935, the petitioner took his oath of office; (4) That on December 3, 1935, the National Assembly in session assembled, passed the following resolution: [No. 8]
RESOLUCION CONFIRMANDO LAS ACTAS DE AQUELLOS DIPUTADOS CONTRA QUIENES NO SE HA PRESENTADO PROTESTA. Se resuelve: Que las actas de eleccion de los Diputados contra quienes no se hubiere presentado debidamente una protesta antes de la adopcion de la presente resolucion sean, como por la presente, son aprobadas y confirmadas. Adoptada, 3 de diciembre, 1935. (5) That on December 8, 1935, the herein respondent Pedro Ynsua filed before the Electoral Commission a "Motion of Protest" against the election of the herein petitioner, Jose A. Angara, being the only protest filed after the passage of Resolutions No. 8 aforequoted, and praying, among other-things, that said respondent be declared elected member of the National Assembly for the first district of Tayabas, or that the election of said position be nullified; (6) That on December 9, 1935, the Electoral Commission adopted a resolution, paragraph 6 of which provides: 6. La Comision no considerara ninguna protesta que no se haya presentado en o antes de este dia. (7) That on December 20, 1935, the herein petitioner, Jose A. Angara, one of the respondents in the aforesaid protest, filed before the Electoral Commission a "Motion to Dismiss the Protest", alleging (a) that Resolution No. 8 of Dismiss the Protest", alleging (a) that Resolution No. 8 of the National Assembly was adopted in the legitimate exercise of its constitutional prerogative to prescribe the period during which protests against the election of its members should be presented; (b) that the aforesaid resolution has for its object, and is the accepted formula for, the limitation of said period; and (c) that the protest in question was filed out of the prescribed period; (8) That on December 27, 1935, the herein respondent, Pedro Ynsua, filed an "Answer to the Motion of Dismissal" alleging that there is no legal or constitutional provision barring the presentation of a protest against the election of a member of the National Assembly after confirmation; (9) That on December 31, 1935, the herein petitioner, Jose A. Angara, filed a "Reply" to the aforesaid "Answer to the Motion of Dismissal"; (10) That the case being submitted for decision, the Electoral Commission promulgated a resolution on January 23, 1936, denying herein petitioner's "Motion to Dismiss the Protest."
The application of the petitioner sets forth the following grounds for the issuance of the writ prayed for:
(a) That the Constitution confers exclusive jurisdiction upon the electoral Commission solely as regards the merits of contested elections to the National Assembly; (b) That the Constitution excludes from said jurisdiction the power to regulate the proceedings of said election contests, which power has been reserved to the Legislative Department of the Government or the National Assembly; (c) That like the Supreme Court and other courts created in pursuance of the Constitution, whose exclusive jurisdiction relates solely to deciding the merits of controversies submitted to them for decision and to matters involving their internal organization, the Electoral Commission can regulate its proceedings only if the National Assembly has not availed of its primary power to so regulate such proceedings; (d) That Resolution No. 8 of the National Assembly is, therefore, valid and should be respected and obeyed; (e) That under paragraph 13 of section 1 of the ordinance appended to the Constitution and paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd Congress of the United States) as well as under section 1 and 3 (should be sections 1 and 2) of article VIII of the Constitution, this Supreme Court has jurisdiction to pass upon the fundamental question herein raised because it involves an interpretation of the Constitution of the Philippines.
On February 25, 1936, the Solicitor-General appeared and filed an answer in behalf of the respondent Electoral Commission interposing the following special defenses:
(a) That the Electoral Commission has been created by the Constitution as an instrumentality of the Legislative Department invested with the jurisdiction to decide "all contests relating to the election, returns, and qualifications of the members of the National Assembly"; that in adopting its resolution of December 9, 1935, fixing this date as the last day for the presentation of protests against the election of any member of the National Assembly, it acted within its jurisdiction and in the legitimate exercise of the implied powers granted it by the Constitution to adopt the rules and regulations essential to carry out the power and functions conferred upon the same by the fundamental law; that in adopting its resolution of January 23, 1936, overruling the motion of the petitioner to dismiss the election protest in question, and declaring itself with jurisdiction to take cognizance of said protest, it acted in the legitimate exercise of its quasi-judicial functions a an instrumentality of the Legislative Department of the Commonwealth Government, and hence said act is beyond the judicial cognizance or control of the Supreme Court; (b) That the resolution of the National Assembly of December 3, 1935, confirming the election of the members of the National Assembly against whom no protest had thus far been filed, could not and did not deprive the electoral Commission of its jurisdiction to take cognizance of election protests filed within the time that might be set by its own rules:
(c) That the Electoral Commission is a body invested with quasi-judicial functions, created by the Constitution as an instrumentality of the Legislative Department, and is not an "inferior tribunal, or corporation, or board, or person" within the purview of section 226 and 516 of the Code of Civil Procedure, against which prohibition would lie.
The respondent Pedro Ynsua, in his turn, appeared and filed an answer in his own behalf on March 2, 1936, setting forth the following as his special defense:
(a) That at the time of the approval of the rules of the Electoral Commission on December 9, 1935, there was no existing law fixing the period within which protests against the election of members of the National Assembly should be filed; that in fixing December 9, 1935, as the last day for the filing of protests against the election of members of the National Assembly, the Electoral Commission was exercising a power impliedly conferred upon it by the Constitution, by reason of its quasi-judicial attributes; (b) That said respondent presented his motion of protest before the Electoral Commission on December 9, 1935, the last day fixed by paragraph 6 of the rules of the said Electoral Commission; (c) That therefore the Electoral Commission acquired jurisdiction over the protest filed by said respondent and over the parties thereto, and the resolution of the Electoral Commission of January 23, 1936, denying petitioner's motion to dismiss said protest was an act within the jurisdiction of the said commission, and is not reviewable by means of a writ of prohibition; (d) That neither the law nor the Constitution requires confirmation by the National Assembly of the election of its members, and that such confirmation does not operate to limit the period within which protests should be filed as to deprive the Electoral Commission of jurisdiction over protest filed subsequent thereto; (e) That the Electoral Commission is an independent entity created by the Constitution, endowed with quasi-judicial functions, whose decision are final and unappealable; ( f ) That the electoral Commission, as a constitutional creation, is not an inferior tribunal, corporation, board or person, within the terms of sections 226 and 516 of the Code of Civil Procedure; and that neither under the provisions of sections 1 and 2 of article II (should be article VIII) of the Constitution and paragraph 13 of section 1 of the Ordinance appended thereto could it be subject in the exercise of its quasi-judicial functions to a writ of prohibition from the Supreme Court; (g) That paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd Congress of the united States) has no application to the case at bar.
The case was argued before us on March 13, 1936. Before it was submitted for decision, the petitioner prayed for the issuance of a preliminary writ of injunction against the respondent Electoral Commission which petition was
denied "without passing upon the merits of the case" by resolution of this court of March 21, 1936. There was no appearance for the other respondents. The issues to be decided in the case at bar may be reduced to the following two principal propositions:
1. Has the Supreme Court jurisdiction over the Electoral Commission and the subject matter of the controversy upon the foregoing related facts, and in the affirmative, 2. Has the said Electoral Commission acted without or in excess of its jurisdiction in assuming to the cognizance of the protest filed the election of the herein petitioner notwithstanding the previous confirmation of such election by resolution of the National Assembly?
We could perhaps dispose of this case by passing directly upon the merits of the controversy. However, the question of jurisdiction having been presented, we do not feel justified in evading the issue. Being a case prim impressionis, it would hardly be consistent with our sense of duty to overlook the broader aspect of the question and leave it undecided. Neither would we be doing justice to the industry and vehemence of counsel were we not to pass upon the question of jurisdiction squarely presented to our consideration. The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. For example, the Chief Executive under our Constitution is so far made a check on the legislative power that this assent is required in the enactment of laws. This, however, is subject to the further check that a bill may become a law notwithstanding the refusal of the President to approve it, by a vote of two-thirds or three-fourths, as the case may be, of the National Assembly. The President has also the right to convene the Assembly in special session whenever he chooses. On the other hand, the National Assembly operates as a check on the Executive in the sense that its consent through its Commission on Appointments is necessary in the appointments of certain officers; and the concurrence of a majority of all its members is essential to the conclusion of treaties. Furthermore, in its power to determine what courts other than the Supreme Court shall be established, to define their jurisdiction and to
appropriate funds for their support, the National Assembly controls the judicial department to a certain extent. The Assembly also exercises the judicial power of trying impeachments. And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution. But in the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government. The overlapping and interlacing of functions and duties between the several departments, however, sometimes makes it hard to say just where the one leaves off and the other begins. In times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof. As any human production, our Constitution is of course lacking perfection and perfectibility, but as much as it was within the power of our people, acting through their delegates to so provide, that instrument which is the expression of their sovereignty however limited, has established a republican government intended to operate and function as a harmonious whole, under a system of checks and balances, and subject to specific limitations and restrictions provided in the said instrument. The Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels, for then the distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government mere political apothegms. Certainly, the limitation and restrictions embodied in our Constitution are real as they should be in any living constitution. In the United States where no express constitutional grant is found in their constitution, the possession of this moderating power of the courts, not to speak of its historical origin and development there, has been set at rest by popular acquiescence for a period of more than one and a half centuries. In our case, this moderating power is granted, if not expressly, by clear implication from section 2 of article VIII of our constitution. The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And
when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution. Even then, this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the governments of the government. But much as we might postulate on the internal checks of power provided in our Constitution, it ought not the less to be remembered that, in the language of James Madison, the system itself is not "the chief palladium of constitutional liberty . . . the people who are authors of this blessing must also be its guardians . . . their eyes must be ever ready to mark, their voice to pronounce . . . aggression on the authority of their constitution." In the Last and ultimate analysis, then, must the success of our government in the unfolding years to come be tested in the crucible of Filipino minds and hearts than in consultation rooms and court chambers. In the case at bar, the national Assembly has by resolution (No. 8) of December 3, 1935, confirmed the election of the herein petitioner to the said body. On the other hand, the Electoral Commission has by resolution adopted on December 9, 1935, fixed said date as the last day for the filing of protests against the election, returns and qualifications of members of the National Assembly, notwithstanding the previous confirmation made by the National Assembly as aforesaid. If, as contended by the petitioner, the resolution of the National Assembly has the effect of cutting off the power of the Electoral Commission to entertain protests against the election, returns and qualifications of members of the National Assembly, submitted after December 3, 1935, then the resolution of the Electoral Commission of December 9, 1935, is mere surplusage and had no effect. But, if, as contended by the respondents, the Electoral Commission
has the sole power of regulating its proceedings to the exclusion of the National Assembly, then the resolution of December 9, 1935, by which the Electoral Commission fixed said date as the last day for filing protests against the election, returns and qualifications of members of the National Assembly, should be upheld. Here is then presented an actual controversy involving as it does a conflict of a grave constitutional nature between the National Assembly on the one hand, and the Electoral Commission on the other. From the very nature of the republican government established in our country in the light of American experience and of our own, upon the judicial department is thrown the solemn and inescapable obligation of interpreting the Constitution and defining constitutional boundaries. The Electoral Commission, as we shall have occasion to refer hereafter, is a constitutional organ, created for a specific purpose, namely to determine all contests relating to the election, returns and qualifications of the members of the National Assembly. Although the Electoral Commission may not be interfered with, when and while acting within the limits of its authority, it does not follow that it is beyond the reach of the constitutional mechanism adopted by the people and that it is not subject to constitutional restrictions. The Electoral Commission is not a separate department of the government, and even if it were, conflicting claims of authority under the fundamental law between department powers and agencies of the government are necessarily determined by the judiciary in justifiable and appropriate cases. Discarding the English type and other European types of constitutional government, the framers of our constitution adopted the American type where the written constitution is interpreted and given effect by the judicial department. In some countries which have declined to follow the American example, provisions have been inserted in their constitutions prohibiting the courts from exercising the power to interpret the fundamental law. This is taken as a recognition of what otherwise would be the rule that in the absence of direct prohibition courts are bound to assume what is logically their function. For instance, the Constitution of Poland of 1921, expressly provides that courts shall have no power to examine the validity of statutes (art. 81, chap. IV). The former Austrian Constitution contained a similar declaration. In countries whose constitutions are silent in this respect, courts have assumed this power. This is true in Norway, Greece, Australia and South Africa. Whereas, in Czechoslovakia (arts. 2 and 3, Preliminary Law to constitutional Charter of the Czechoslovak Republic, February 29, 1920) and Spain (arts. 121-123, Title IX, Constitutional of the Republic of 1931) especial constitutional courts are established to pass upon the validity of ordinary laws. In our case, the nature of the present controversy shows the necessity of a final constitutional arbiter to determine the conflict of authority between two agencies created by the Constitution. Were we to decline to take cognizance of the controversy, who will determine the conflict? And if the conflict were left
undecided and undetermined, would not a void be thus created in our constitutional system which may be in the long run prove destructive of the entire framework? To ask these questions is to answer them. Natura vacuum abhorret, so must we avoid exhaustion in our constitutional system. Upon principle, reason and authority, we are clearly of the opinion that upon the admitted facts of the present case, this court has jurisdiction over the Electoral Commission and the subject mater of the present controversy for the purpose of determining the character, scope and extent of the constitutional grant to the Electoral Commission as "the sole judge of all contests relating to the election, returns and qualifications of the members of the National Assembly." Having disposed of the question of jurisdiction, we shall now proceed to pass upon the second proposition and determine whether the Electoral Commission has acted without or in excess of its jurisdiction in adopting its resolution of December 9, 1935, and in assuming to take cognizance of the protest filed against the election of the herein petitioner notwithstanding the previous confirmation thereof by the National Assembly on December 3, 1935. As able counsel for the petitioner has pointed out, the issue hinges on the interpretation of section 4 of Article VI of the Constitution which provides: "SEC. 4. There shall be an Electoral Commission composed of three Justice of the Supreme Court designated by the Chief Justice, and of six Members chosen by the National Assembly, three of whom shall be nominated by the party having the largest number of votes, and three by the party having the second largest number of votes therein. The senior Justice in the Commission shall be its Chairman. The Electoral Commission shall be the sole judge of all contests relating to the election, returns and qualifications of the members of the National Assembly." It is imperative, therefore, that we delve into the origin and history of this constitutional provision and inquire into the intention of its framers and the people who adopted it so that we may properly appreciate its full meaning, import and significance. The original provision regarding this subject in the Act of Congress of July 1, 1902 (sec. 7, par. 5) laying down the rule that "the assembly shall be the judge of the elections, returns, and qualifications of its members", was taken from clause 1 of section 5, Article I of the Constitution of the United States providing that "Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members, . . . ." The Act of Congress of August 29, 1916 (sec. 18, par. 1) modified this provision by the insertion of the word "sole" as follows: "That the Senate and House of Representatives, respectively, shall be the sole judges of the elections, returns, and qualifications of their elective members . . ." apparently in order to emphasize the exclusive the Legislative over the particular case s therein specified. This court has had occasion to
characterize this grant of power to the Philippine Senate and House of Representatives, respectively, as "full, clear and complete" (Veloso vs. Boards of Canvassers of Leyte and Samar [1919], 39 Phil., 886, 888.) The first step towards the creation of an independent tribunal for the purpose of deciding contested elections to the legislature was taken by the sub-committee of five appointed by the Committee on Constitutional Guarantees of the Constitutional Convention, which sub-committee submitted a report on August 30, 1934, recommending the creation of a Tribunal of Constitutional Security empowered to hear legislature but also against the election of executive officers for whose election the vote of the whole nation is required, as well as to initiate impeachment proceedings against specified executive and judicial officer. For the purpose of hearing legislative protests, the tribunal was to be composed of three justices designated by the Supreme Court and six members of the house of the legislature to which the contest corresponds, three members to be designed by the majority party and three by the minority, to be presided over by the Senior Justice unless the Chief Justice is also a member in which case the latter shall preside. The foregoing proposal was submitted by the Committee on Constitutional Guarantees to the Convention on September 15, 1934, with slight modifications consisting in the reduction of the legislative representation to four members, that is, two senators to be designated one each from the two major parties in the Senate and two representatives to be designated one each from the two major parties in the House of Representatives, and in awarding representation to the executive department in the persons of two representatives to be designated by the President. Meanwhile, the Committee on Legislative Power was also preparing its report. As submitted to the Convention on September 24, 1934 subsection 5, section 5, of the proposed Article on the Legislative Department, reads as follows:
The elections, returns and qualifications of the members of either house and all cases contesting the election of any of their members shall be judged by an Electoral Commission, constituted, as to each House, by three members elected by the members of the party having the largest number of votes therein, three elected by the members of the party having the second largest number of votes, and as to its Chairman, one Justice of the Supreme Court designated by the Chief Justice.
The idea of creating a Tribunal of Constitutional Security with comprehensive jurisdiction as proposed by the Committee on Constitutional Guarantees which was probably inspired by the Spanish plan (art. 121, Constitution of the Spanish Republic of 1931), was soon abandoned in favor of the proposition of the Committee on Legislative Power to create a similar body with reduced powers and with specific and limited jurisdiction, to be designated as a Electoral Commission. The Sponsorship Committee modified the proposal of the
Committee on Legislative Power with respect to the composition of the Electoral Commission and made further changes in phraseology to suit the project of adopting a unicameral instead of a bicameral legislature. The draft as finally submitted to the Convention on October 26, 1934, reads as follows:
(6) The elections, returns and qualifications of the Members of the National Assembly and all cases contesting the election of any of its Members shall be judged by an Electoral Commission, composed of three members elected by the party having the largest number of votes in the National Assembly, three elected by the members of the party having the second largest number of votes, and three justices of the Supreme Court designated by the Chief Justice, the Commission to be presided over by one of said justices.
During the discussion of the amendment introduced by Delegates Labrador, Abordo, and others, proposing to strike out the whole subsection of the foregoing draft and inserting in lieu thereof the following: "The National Assembly shall be the soled and exclusive judge of the elections, returns, and qualifications of the Members", the following illuminating remarks were made on the floor of the Convention in its session of December 4, 1934, as to the scope of the said draft:
xxx xxx xxx
Mr. VENTURA. Mr. President, we have a doubt here as to the scope of the meaning of the first four lines, paragraph 6, page 11 of the draft, reading: "The elections, returns and qualifications of the Members of the National Assembly and all cases contesting the election of any of its Members shall be judged by an Electoral Commission, . . ." I should like to ask from the gentleman from Capiz whether the election and qualification of the member whose elections is not contested shall also be judged by the Electoral Commission. Mr. ROXAS. If there is no question about the election of the members, there is nothing to be judged; that is why the word "judge" is used to indicate a controversy. If there is no question about the election of a member, there is nothing to be submitted to the Electoral Commission and there is nothing to be determined. Mr. VENTURA. But does that carry the idea also that the Electoral Commission shall confirm also the election of those whose election is not contested? Mr. ROXAS. There is no need of confirmation. As the gentleman knows, the action of the House of Representatives confirming the election of its members is just a matter of the rules of the assembly. It is not constitutional. It is not necessary. After a man files his credentials that he has been elected, that is sufficient, unless his election is contested. Mr. VENTURA. But I do not believe that that is sufficient, as we have observed that for purposes of the auditor, in the matter of election of a member to a legislative body, because he will not authorize his pay.
Mr. ROXAS. Well, what is the case with regards to the municipal president who is elected? What happens with regards to the councilors of a municipality? Does anybody confirm their election? The municipal council does this: it makes a canvass and proclaims in this case the municipal council proclaims who has been elected, and it ends there, unless there is a contest. It is the same case; there is no need on the part of the Electoral Commission unless there is a contest. The first clause refers to the case referred to by the gentleman from Cavite where one person tries to be elected in place of another who was declared elected. From example, in a case when the residence of the man who has been elected is in question, or in case the citizenship of the man who has been elected is in question. However, if the assembly desires to annul the power of the commission, it may do so by certain maneuvers upon its first meeting when the returns are submitted to the assembly. The purpose is to give to the Electoral Commission all the powers exercised by the assembly referring to the elections, returns and qualifications of the members. When there is no contest, there is nothing to be judged. Mr. VENTURA. Then it should be eliminated. Mr. ROXAS. But that is a different matter, I think Mr. Delegate. Mr. CINCO. Mr. President, I have a similar question as that propounded by the gentleman from Ilocos Norte when I arose a while ago. However I want to ask more questions from the delegate from Capiz. This paragraph 6 on page 11 of the draft cites cases contesting the election as separate from the first part of the sections which refers to elections, returns and qualifications. Mr. ROXAS. That is merely for the sake of clarity. In fact the cases of contested elections are already included in the phrase "the elections, returns and qualifications." This phrase "and contested elections" was inserted merely for the sake of clarity. Mr. CINCO. Under this paragraph, may not the Electoral Commission, at its own instance, refuse to confirm the elections of the members." Mr. ROXAS. I do not think so, unless there is a protest. Mr. LABRADOR. Mr. President, will the gentleman yield? THE PRESIDENT. The gentleman may yield, if he so desires. Mr. ROXAS. Willingly. Mr. LABRADOR. Does not the gentleman from Capiz believe that unless this power is granted to the assembly, the assembly on its own motion does not have the right to contest the election and qualification of its members? Mr. ROXAS. I have no doubt but that the gentleman is right. If this draft is retained as it is, even if two-thirds of the assembly believe that a member has not the qualifications provided by law, they cannot remove him for that reason.
Mr. LABRADOR. So that the right to remove shall only be retained by the Electoral Commission. Mr. ROXAS. By the assembly for misconduct. Mr. LABRADOR. I mean with respect to the qualifications of the members. Mr. ROXAS. Yes, by the Electoral Commission. Mr. LABRADOR. So that under this draft, no member of the assembly has the right to question the eligibility of its members? Mr. ROXAS. Before a member can question the eligibility, he must go to the Electoral Commission and make the question before the Electoral Commission. Mr. LABRADOR. So that the Electoral Commission shall decide whether the election is contested or not contested. Mr. ROXAS. Yes, sir: that is the purpose. Mr. PELAYO. Mr. President, I would like to be informed if the Electoral Commission has power and authority to pass upon the qualifications of the members of the National Assembly even though that question has not been raised. Mr. ROXAS. I have just said that they have no power, because they can only judge.
In the same session, the first clause of the aforesaid draft reading "The election, returns and qualifications of the members of the National Assembly and" was eliminated by the Sponsorship Committee in response to an amendment introduced by Delegates Francisco, Ventura, Vinzons, Rafols, Lim, Mumar and others. In explaining the difference between the original draft and the draft as amended, Delegate Roxas speaking for the Sponsorship Committee said:
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Sr. ROXAS. La diferencia, seor Presidente, consiste solamente en obviar la objecion apuntada por varios Delegados al efecto de que la primera clausula del draft que dice: "The elections, returns and qualifications of the members of the National Assembly" parece que da a la Comision Electoral la facultad de determinar tambien la eleccion de los miembros que no ha sido protestados y para obviar esa dificultad, creemos que la enmienda tien razon en ese sentido, si enmendamos el draft, de tal modo que se lea como sigue: "All cases contesting the election", de modo que los jueces de la Comision Electoral se limitaran solamente a los casos en que haya habido protesta contra las actas." Before the amendment of Delegate Labrador was voted upon the following interpellation also took place: El Sr. CONEJERO. Antes de votarse la enmienda, quisiera El Sr. PRESIDENTE. Que dice el Comite?
El Sr. ROXAS. Con mucho gusto. El Sr. CONEJERO. Tal como esta el draft, dando tres miembros a la mayoria, y otros tres a la minoria y tres a la Corte Suprema, no cree Su Seoria que esto equivale practicamente a dejar el asunto a los miembros del Tribunal Supremo? El Sr. ROXAS. Si y no. Creemos que si el tribunal o la Commission esta constituido en esa forma, tanto los miembros de la mayoria como los de la minoria asi como los miembros de la Corte Suprema consideraran la cuestion sobre la base de sus meritos, sabiendo que el partidismo no es suficiente para dar el triunfo. El Sr. CONEJERO. Cree Su Seoria que en un caso como ese, podriamos hacer que tanto los de la mayoria como los de la minoria prescindieran del partidismo? El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo. xxx xxx xxx
The amendment introduced by Delegates Labrador, Abordo and others seeking to restore the power to decide contests relating to the election, returns and qualifications of members of the National Assembly to the National Assembly itself, was defeated by a vote of ninety-eight (98) against fifty-six (56). In the same session of December 4, 1934, Delegate Cruz (C.) sought to amend the draft by reducing the representation of the minority party and the Supreme Court in the Electoral Commission to two members each, so as to accord more representation to the majority party. The Convention rejected this amendment by a vote of seventy-six (76) against forty-six (46), thus maintaining the nonpartisan character of the commission. As approved on January 31, 1935, the draft was made to read as follows:
(6) All cases contesting the elections, returns and qualifications of the Members of the National Assembly shall be judged by an Electoral Commission, composed of three members elected by the party having the largest number of votes in the National Assembly, three elected by the members of the party having the second largest number of votes, and three justices of the Supreme Court designated by the Chief Justice, the Commission to be presided over by one of said justices.
The Style Committee to which the draft was submitted revised it as follows:
SEC. 4. There shall be an Electoral Commission composed of three Justices of the Supreme Court designated by the Chief Justice, and of six Members chosen by the National Assembly, three of whom shall be nominated by the party having the largest number of votes, and three by the party having the second largest number of votes therein. The senior Justice in the Commission shall be its chairman. The Electoral Commission shall be the sole judge of the election, returns, and qualifications of the Members of the National Assembly.
When the foregoing draft was submitted for approval on February 8, 1935, the Style Committee, through President Recto, to effectuate the original intention of the Convention, agreed to insert the phrase "All contests relating to" between the phrase "judge of" and the words "the elections", which was accordingly accepted by the Convention. The transfer of the power of determining the election, returns and qualifications of the members of the legislature long lodged in the legislative body, to an independent, impartial and non-partisan tribunal, is by no means a mere experiment in the science of government. Cushing, in his Law and Practice of Legislative Assemblies (ninth edition, chapter VI, pages 57, 58), gives a vivid account of the "scandalously notorious" canvassing of votes by political parties in the disposition of contests by the House of Commons in the following passages which are partly quoted by the petitioner in his printed memorandum of March 14, 1936:
153. From the time when the commons established their right to be the exclusive judges of the elections, returns, and qualifications of their members, until the year 1770, two modes of proceeding prevailed, in the determination of controverted elections, and rights of membership. One of the standing committees appointed at the commencement of each session, was denominated the committee of privileges and elections, whose functions was to hear and investigate all questions of this description which might be referred to them, and to report their proceedings, with their opinion thereupon, to the house, from time to time. When an election petition was referred to this committee they heard the parties and their witnesses and other evidence, and made a report of all the evidence, together with their opinion thereupon, in the form of resolutions, which were considered and agreed or disagreed to by the house. The other mode of proceeding was by a hearing at the bar of the house itself. When this court was adopted, the case was heard and decided by the house, in substantially the same manner as by a committee. The committee of privileges and elections although a select committee. The committee of privileges and elections although a select committee was usually what is called an open one; that is to say, in order to constitute the committee, a quorum of the members named was required to be present, but all the members of the house were at liberty to attend the committee and vote if they pleased. 154. With the growth of political parties in parliament questions relating to the right of membership gradually assumed a political character; so that for many years previous to the year 1770, controverted elections had been tried and determined by the house of commons, as mere party questions, upon which the strength of contending factions might be tested. Thus, for Example, in 1741, Sir Robert Walpole, after repeated attacks upon his government, resigned his office in consequence of an adverse vote upon the Chippenham election. Mr. Hatsell remarks, of the trial of election cases, as conducted under this system, that "Every principle of decency and justice were notoriously and openly prostituted, from whence the younger part of the house were insensibly, but too successfully, induced to adopt the same licentious conduct in more serious matters, and in questions of higher importance to the public
welfare." Mr. George Grenville, a distinguished member of the house of commons, undertook to propose a remedy for the evil, and, on the 7th of March, 1770, obtained the unanimous leave of the house to bring in a bill, "to regulate the trial of controverted elections, or returns of members to serve in parliament." In his speech to explain his plan, on the motion for leave, Mr. Grenville alluded to the existing practice in the following terms: "Instead of trusting to the merits of their respective causes, the principal dependence of both parties is their private interest among us; and it is scandalously notorious that we are as earnestly canvassed to attend in favor of the opposite sides, as if we were wholly self-elective, and not bound to act by the principles of justice, but by the discretionary impulse of our own inclinations; nay, it is well known, that in every contested election, many members of this house, who are ultimately to judge in a kind of judicial capacity between the competitors, enlist themselves as parties in the contention, and take upon themselves the partial management of the very business, upon which they should determine with the strictest impartiality." 155. It was to put an end to the practices thus described, that Mr. Grenville brought in a bill which met with the approbation of both houses, and received the royal assent on the 12th of April, 1770. This was the celebrated law since known by the name of the Grenville Act; of which Mr. Hatsell declares, that it "was one of the nobles works, for the honor of the house of commons, and the security of the constitution, that was ever devised by any minister or statesman." It is probable, that the magnitude of the evil, or the apparent success of the remedy, may have led many of the contemporaries of the measure to the information of a judgement, which was not acquiesced in by some of the leading statesmen of the day, and has not been entirely confirmed by subsequent experience. The bill was objected to by Lord North, Mr. De Grey, afterwards chief justice of the common pleas, Mr. Ellis, Mr. Dyson, who had been clerk of the house, and Mr. Charles James Fox, chiefly on the ground, that the introduction of the new system was an essential alteration of the constitution of parliament, and a total abrogation of one of the most important rights and jurisdictions of the house of commons.
As early as 1868, the House of Commons in England solved the problem of insuring the non-partisan settlement of the controverted elections of its members by abdicating its prerogative to two judges of the King's Bench of the High Court of Justice selected from a rota in accordance with rules of court made for the purpose. Having proved successful, the practice has become imbedded in English jurisprudence (Parliamentary Elections Act, 1868 [31 & 32 Vict. c. 125] as amended by Parliamentary Elections and Corrupt Practices Act. 1879 [42 & 43 Vict. c. 75], s. 2; Corrupt and Illegal Practices Preventions Act, 1883 [46 & 47 Vict. c. 51;, s. 70; Expiring Laws Continuance Act, 1911 [1 & 2 Geo. 5, c. 22]; Laws of England, vol. XII, p. 408, vol. XXI, p. 787). In the Dominion of Canada, election contests which were originally heard by the Committee of the House of Commons, are since 1922 tried in the courts. Likewise, in the Commonwealth of Australia, election contests which were originally determined by each house, are since 1922 tried in the High Court. In Hungary, the organic law provides that all protests against the election of members of the
Upper House of the Diet are to be resolved by the Supreme Administrative Court (Law 22 of 1916, chap. 2, art. 37, par. 6). The Constitution of Poland of March 17, 1921 (art. 19) and the Constitution of the Free City of Danzig of May 13, 1922 (art. 10) vest the authority to decide contested elections to the Diet or National Assembly in the Supreme Court. For the purpose of deciding legislative contests, the Constitution of the German Reich of July 1, 1919 (art. 31), the Constitution of the Czechoslovak Republic of February 29, 1920 (art. 19) and the Constitution of the Grecian Republic of June 2, 1927 (art. 43), all provide for an Electoral Commission. The creation of an Electoral Commission whose membership is recruited both from the legislature and the judiciary is by no means unknown in the United States. In the presidential elections of 1876 there was a dispute as to the number of electoral votes received by each of the two opposing candidates. As the Constitution made no adequate provision for such a contingency, Congress passed a law on January 29, 1877 (United States Statutes at Large, vol. 19, chap. 37, pp. 227-229), creating a special Electoral Commission composed of five members elected by the Senate, five members elected by the House of Representatives, and five justices of the Supreme Court, the fifth justice to be selected by the four designated in the Act. The decision of the commission was to be binding unless rejected by the two houses voting separately. Although there is not much of a moral lesson to be derived from the experience of America in this regard, judging from the observations of Justice Field, who was a member of that body on the part of the Supreme Court (Countryman, the Supreme Court of the United States and its Appellate Power under the Constitution [Albany, 1913] Relentless Partisanship of Electoral Commission, p. 25 et seq.), the experiment has at least abiding historical interest. The members of the Constitutional Convention who framed our fundamental law were in their majority men mature in years and experience. To be sure, many of them were familiar with the history and political development of other countries of the world. When , therefore, they deemed it wise to create an Electoral Commission as a constitutional organ and invested it with the exclusive function of passing upon and determining the election, returns and qualifications of the members of the National Assembly, they must have done so not only in the light of their own experience but also having in view the experience of other enlightened peoples of the world. The creation of the Electoral Commission was designed to remedy certain evils of which the framers of our Constitution were cognizant. Notwithstanding the vigorous opposition of some members of the Convention to its creation, the plan, as hereinabove stated, was approved by that body by a vote of 98 against 58. All that can be said now is that, upon the approval of the constitutional the creation
of the Electoral Commission is the expression of the wisdom and "ultimate justice of the people". (Abraham Lincoln, First Inaugural Address, March 4, 1861.) From the deliberations of our Constitutional Convention it is evident that the purpose was to transfer in its totality all the powers previously exercised by the legislature in matters pertaining to contested elections of its members, to an independent and impartial tribunal. It was not so much the knowledge and appreciation of contemporary constitutional precedents, however, as the longfelt need of determining legislative contests devoid of partisan considerations which prompted the people, acting through their delegates to the Convention, to provide for this body known as the Electoral Commission. With this end in view, a composite body in which both the majority and minority parties are equally represented to off-set partisan influence in its deliberations was created, and further endowed with judicial temper by including in its membership three justices of the Supreme Court. The Electoral Commission is a constitutional creation, invested with the necessary authority in the performance and execution of the limited and specific function assigned to it by the Constitution. Although it is not a power in our tripartite scheme of government, it is, to all intents and purposes, when acting within the limits of its authority, an independent organ. It is, to be sure, closer to the legislative department than to any other. The location of the provision (section 4) creating the Electoral Commission under Article VI entitled "Legislative Department" of our Constitution is very indicative. Its compositions is also significant in that it is constituted by a majority of members of the legislature. But it is a body separate from and independent of the legislature. The grant of power to the Electoral Commission to judge all contests relating to the election, returns and qualifications of members of the National Assembly, is intended to be as complete and unimpaired as if it had remained originally in the legislature. The express lodging of that power in the Electoral Commission is an implied denial of the exercise of that power by the National Assembly. And this is as effective a restriction upon the legislative power as an express prohibition in the Constitution (Ex parte Lewis, 45 Tex. Crim. Rep., 1; State vs.Whisman, 36 S.D., 260; L.R.A., 1917B, 1). If we concede the power claimed in behalf of the National Assembly that said body may regulate the proceedings of the Electoral Commission and cut off the power of the commission to lay down the period within which protests should be filed, the grant of power to the commission would be ineffective. The Electoral Commission in such case would be invested with the power to determine contested cases involving the election, returns and qualifications of the members of the National Assembly
but subject at all times to the regulative power of the National Assembly. Not only would the purpose of the framers of our Constitution of totally transferring this authority from the legislative body be frustrated, but a dual authority would be created with the resultant inevitable clash of powers from time to time. A sad spectacle would then be presented of the Electoral Commission retaining the bare authority of taking cognizance of cases referred to, but in reality without the necessary means to render that authority effective whenever and whenever the National Assembly has chosen to act, a situation worse than that intended to be remedied by the framers of our Constitution. The power to regulate on the part of the National Assembly in procedural matters will inevitably lead to the ultimate control by the Assembly of the entire proceedings of the Electoral Commission, and, by indirection, to the entire abrogation of the constitutional grant. It is obvious that this result should not be permitted. We are not insensible to the impassioned argument or the learned counsel for the petitioner regarding the importance and necessity of respecting the dignity and independence of the national Assembly as a coordinate department of the government and of according validity to its acts, to avoid what he characterized would be practically an unlimited power of the commission in the admission of protests against members of the National Assembly. But as we have pointed out hereinabove, the creation of the Electoral Commission carried with it ex necesitate rei the power regulative in character to limit the time with which protests intrusted to its cognizance should be filed. It is a settled rule of construction that where a general power is conferred or duty enjoined, every particular power necessary for the exercise of the one or the performance of the other is also conferred (Cooley, Constitutional Limitations, eight ed., vol. I, pp. 138, 139). In the absence of any further constitutional provision relating to the procedure to be followed in filing protests before the Electoral Commission, therefore, the incidental power to promulgate such rules necessary for the proper exercise of its exclusive power to judge all contests relating to the election, returns and qualifications of members of the National Assembly, must be deemed by necessary implication to have been lodged also in the Electoral Commission. It is, indeed, possible that, as suggested by counsel for the petitioner, the Electoral Commission may abuse its regulative authority by admitting protests beyond any reasonable time, to the disturbance of the tranquillity and peace of mind of the members of the National Assembly. But the possibility of abuse is not argument against the concession of the power as there is no power that is not susceptible of abuse. In the second place, if any mistake has been committed in the creation of an Electoral Commission and in investing it with exclusive jurisdiction in all cases relating to the election, returns, and qualifications of members of the National Assembly, the remedy is political, not judicial, and
must be sought through the ordinary processes of democracy. All the possible abuses of the government are not intended to be corrected by the judiciary. We believe, however, that the people in creating the Electoral Commission reposed as much confidence in this body in the exclusive determination of the specified cases assigned to it, as they have given to the Supreme Court in the proper cases entrusted to it for decision. All the agencies of the government were designed by the Constitution to achieve specific purposes, and each constitutional organ working within its own particular sphere of discretionary action must be deemed to be animated with the same zeal and honesty in accomplishing the great ends for which they were created by the sovereign will. That the actuations of these constitutional agencies might leave much to be desired in given instances, is inherent in the perfection of human institutions. In the third place, from the fact that the Electoral Commission may not be interfered with in the exercise of its legitimate power, it does not follow that its acts, however illegal or unconstitutional, may not be challenge in appropriate cases over which the courts may exercise jurisdiction. But independently of the legal and constitutional aspects of the present case, there are considerations of equitable character that should not be overlooked in the appreciation of the intrinsic merits of the controversy. The Commonwealth Government was inaugurated on November 15, 1935, on which date the Constitution, except as to the provisions mentioned in section 6 of Article XV thereof, went into effect. The new National Assembly convened on November 25th of that year, and the resolution confirming the election of the petitioner, Jose A. Angara was approved by that body on December 3, 1935. The protest by the herein respondent Pedro Ynsua against the election of the petitioner was filed on December 9 of the same year. The pleadings do not show when the Electoral Commission was formally organized but it does appear that on December 9, 1935, the Electoral Commission met for the first time and approved a resolution fixing said date as the last day for the filing of election protest. When, therefore, the National Assembly passed its resolution of December 3, 1935, confirming the election of the petitioner to the National Assembly, the Electoral Commission had not yet met; neither does it appear that said body had actually been organized. As a mater of fact, according to certified copies of official records on file in the archives division of the National Assembly attached to the record of this case upon the petition of the petitioner, the three justices of the Supreme Court the six members of the National Assembly constituting the Electoral Commission were respectively designated only on December 4 and 6, 1935. If Resolution No. 8 of the National Assembly confirming non-protested elections of members of the National Assembly had the effect of limiting or tolling the time for the presentation of protests, the result would be that the National Assembly on the hypothesis that it still retained the incidental power of regulation in such cases had already barred
the presentation of protests before the Electoral Commission had had time to organize itself and deliberate on the mode and method to be followed in a matter entrusted to its exclusive jurisdiction by the Constitution. This result was not and could not have been contemplated, and should be avoided. From another angle, Resolution No. 8 of the National Assembly confirming the election of members against whom no protests had been filed at the time of its passage on December 3, 1935, can not be construed as a limitation upon the time for the initiation of election contests. While there might have been good reason for the legislative practice of confirmation of the election of members of the legislature at the time when the power to decide election contests was still lodged in the legislature, confirmation alone by the legislature cannot be construed as depriving the Electoral Commission of the authority incidental to its constitutional power to be "the sole judge of all contest relating to the election, returns, and qualifications of the members of the National Assembly", to fix the time for the filing of said election protests. Confirmation by the National Assembly of the returns of its members against whose election no protests have been filed is, to all legal purposes, unnecessary. As contended by the Electoral Commission in its resolution of January 23, 1936, overruling the motion of the herein petitioner to dismiss the protest filed by the respondent Pedro Ynsua, confirmation of the election of any member is not required by the Constitution before he can discharge his duties as such member. As a matter of fact, certification by the proper provincial board of canvassers is sufficient to entitle a member-elect to a seat in the national Assembly and to render him eligible to any office in said body (No. 1, par. 1, Rules of the National Assembly, adopted December 6, 1935). Under the practice prevailing both in the English House of Commons and in the Congress of the United States, confirmation is neither necessary in order to entitle a member-elect to take his seat. The return of the proper election officers is sufficient, and the member-elect presenting such return begins to enjoy the privileges of a member from the time that he takes his oath of office (Laws of England, vol. 12, pp. 331. 332; vol. 21, pp. 694, 695; U. S. C. A., Title 2, secs. 21, 25, 26). Confirmation is in order only in cases of contested elections where the decision is adverse to the claims of the protestant. In England, the judges' decision or report in controverted elections is certified to the Speaker of the House of Commons, and the House, upon being informed of such certificate or report by the Speaker, is required to enter the same upon the Journals, and to give such directions for confirming or altering the return, or for the issue of a writ for a new election, or for carrying into execution the determination as circumstances may require (31 & 32 Vict., c. 125, sec. 13). In the United States, it is believed, the order or decision of the particular house itself is generally
regarded as sufficient, without any actual alternation or amendment of the return (Cushing, Law and Practice of Legislative Assemblies, 9th ed., sec. 166). Under the practice prevailing when the Jones Law was still in force, each house of the Philippine Legislature fixed the time when protests against the election of any of its members should be filed. This was expressly authorized by section 18 of the Jones Law making each house the sole judge of the election, return and qualifications of its members, as well as by a law (sec. 478, Act No. 3387) empowering each house to respectively prescribe by resolution the time and manner of filing contest in the election of member of said bodies. As a matter of formality, after the time fixed by its rules for the filing of protests had already expired, each house passed a resolution confirming or approving the returns of such members against whose election no protests had been filed within the prescribed time. This was interpreted as cutting off the filing of further protests against the election of those members not theretofore contested (Amistad vs. Claravall [Isabela], Second Philippine Legislature, Record First Period, p. 89; Urguello vs. Rama [Third District, Cebu], Sixth Philippine Legislature; Fetalvero vs. Festin [Romblon], Sixth Philippine Legislature, Record First Period, pp. 637-640; Kintanar vs.Aldanese [Fourth District, Cebu], Sixth Philippine Legislature, Record First Period, pp. 1121, 1122; Aguilar vs.Corpus [Masbate], Eighth Philippine Legislature, Record First Period, vol. III, No. 56, pp. 892, 893). The Constitution has repealed section 18 of the Jones Law. Act No. 3387, section 478, must be deemed to have been impliedly abrogated also, for the reason that with the power to determine all contest relating to the election, returns and qualifications of members of the National Assembly, is inseparably linked the authority to prescribe regulations for the exercise of that power. There was thus no law nor constitutional provisions which authorized the National Assembly to fix, as it is alleged to have fixed on December 3, 1935, the time for the filing of contests against the election of its members. And what the National Assembly could not do directly, it could not do by indirection through the medium of confirmation. Summarizing, we conclude:
(a) That the government established by the Constitution follows fundamentally the theory of separation of power into the legislative, the executive and the judicial. (b) That the system of checks and balances and the overlapping of functions and duties often makes difficult the delimitation of the powers granted. (c) That in cases of conflict between the several departments and among the agencies thereof, the judiciary, with the Supreme Court as the final arbiter, is the only constitutional mechanism devised finally to resolve the conflict and allocate constitutional boundaries.
(d) That judicial supremacy is but the power of judicial review in actual and appropriate cases and controversies, and is the power and duty to see that no one branch or agency of the government transcends the Constitution, which is the source of all authority. (e) That the Electoral Commission is an independent constitutional creation with specific powers and functions to execute and perform, closer for purposes of classification to the legislative than to any of the other two departments of the governments. (f ) That the Electoral Commission is the sole judge of all contests relating to the election, returns and qualifications of members of the National Assembly. (g) That under the organic law prevailing before the present Constitution went into effect, each house of the legislature was respectively the sole judge of the elections, returns, and qualifications of their elective members. (h) That the present Constitution has transferred all the powers previously exercised by the legislature with respect to contests relating to the elections, returns and qualifications of its members, to the Electoral Commission. (i) That such transfer of power from the legislature to the Electoral Commission was full, clear and complete, and carried with it ex necesitate rei the implied power inter alia to prescribe the rules and regulations as to the time and manner of filing protests. ( j) That the avowed purpose in creating the Electoral Commission was to have an independent constitutional organ pass upon all contests relating to the election, returns and qualifications of members of the National Assembly, devoid of partisan influence or consideration, which object would be frustrated if the National Assembly were to retain the power to prescribe rules and regulations regarding the manner of conducting said contests. (k) That section 4 of article VI of the Constitution repealed not only section 18 of the Jones Law making each house of the Philippine Legislature respectively the sole judge of the elections, returns and qualifications of its elective members, but also section 478 of Act No. 3387 empowering each house to prescribe by resolution the time and manner of filing contests against the election of its members, the time and manner of notifying the adverse party, and bond or bonds, to be required, if any, and to fix the costs and expenses of contest. (l) That confirmation by the National Assembly of the election is contested or not, is not essential before such member-elect may discharge the duties and enjoy the privileges of a member of the National Assembly. (m) That confirmation by the National Assembly of the election of any member against whom no protest had been filed prior to said confirmation, does not and cannot deprive the Electoral Commission of its incidental power to prescribe the time within which protests against the election of any member of the National Assembly should be filed.
We hold, therefore, that the Electoral Commission was acting within the legitimate exercise of its constitutional prerogative in assuming to take cognizance of the protest filed by the respondent Pedro Ynsua against the election of the herein petitioner Jose A. Angara, and that the resolution of the National Assembly of December 3, 1935 can not in any manner toll the time for filing protests against the elections, returns and qualifications of members of the National Assembly, nor prevent the filing of a protest within such time as the rules of the Electoral Commission might prescribe. In view of the conclusion reached by us relative to the character of the Electoral Commission as a constitutional creation and as to the scope and extent of its authority under the facts of the present controversy, we deem it unnecessary to determine whether the Electoral Commission is an inferior tribunal, corporation, board or person within the purview of sections 226 and 516 of the Code of Civil Procedure. The petition for a writ of prohibition against the Electoral Commission is hereby denied, with costs against the petitioner. So ordered. Avancea, C. J., Diaz, Concepcion, and Horrilleno, JJ., concur.
Separate Opinions ABAD SANTOS, J., concurring: I concur in the result and in most of the views so ably expressed in the preceding opinion. I am, however, constrained to withhold my assent to certain conclusions therein advanced. The power vested in the Electoral Commission by the Constitution of judging of all contests relating to the election, returns, and qualifications of the members of the National Assembly, is judicial in nature. (Thomas vs.Loney, 134 U.S., 372; 33 Law. ed., 949, 951.) On the other hand, the power to regulate the time in which notice of a contested election may be given, is legislative in character. (M'Elmoyle vs. Cohen, 13 Pet., 312; 10 Law. ed., 177; Missouri vs. Illinois, 200 U. S. 496; 50 Law. ed., 572.) It has been correctly stated that the government established by the Constitution follows fundamentally the theory of the separation of powers into legislative, executive, and judicial. Legislative power is vested in the National Assembly. (Article VI, sec. 1.) In the absence of any clear constitutional provision to the
contrary, the power to regulate the time in which notice of a contested election may be given, must be deemed to be included in the grant of legislative power to the National Assembly. The Constitution of the United States contains a provision similar to the that found in Article VI, section 4, of the Constitution of the Philippines. Article I, section 5, of the Constitution of the United States provides that each house of the Congress shall be the judge of the elections, returns, and qualifications of its own members. Notwithstanding this provision, the Congress has assumed the power to regulate the time in which notice of a contested election may be given. Thus section 201, Title 2, of the United States Code Annotated prescribes:
Whenever any person intends to contest an election of any Member of the House of Representatives of the United States, he shall, within thirty days after the result of such election shall have been determined by the officer or board of canvassers authorized by law to determine the same, give notice, in writing, to the Member whose seat he designs to contest, of his intention to contest the same, and, in such notice, shall specify particularly the grounds upon which he relies in the contest. (R. S., par. 105.)
The Philippine Autonomy Act, otherwise known as the Jones Law, also contained a provision to the effect that the Senate and House of Representatives, respectively, shall be the sole judges of the elections, returns, and qualifications of their elective members. Notwithstanding this provision, the Philippine Legislature passed the Election Law, section 478 of which reads as follows:
The Senate and the House of Representatives shall by resolution respectively prescribe the time and manner of filing contest in the election of members of said bodies, the time and manner of notifying the adverse party, and bond or bonds, to be required, if any, and shall fix the costs and expenses of contest which may be paid from their respective funds.
The purpose sought to be attained by the creation of the Electoral Commission was not to erect a body that would be above the law, but to raise legislative elections contests from the category of political to that of justiciable questions. The purpose was not to place the commission beyond the reach of the law, but to insure the determination of such contests with the due process of law. Section 478 of the Election Law was in force at the time of the adoption of the Constitution, Article XV, section 2, of which provides that
All laws of the Philippine Islands shall continue in force until the inauguration of the Commonwealth of the Philippines; thereafter, such laws shall remain operative, unless inconsistent with this Constitution, until amended, altered, modified, or repealed by the National Assembly, and all references in such laws to the Government or officials
of the Philippine Islands shall be construed, in so far as applicable, to refer to the Government and corresponding officials under this Constitution.
The manifest purpose of this constitutional provision was to insure the orderly processes of government, and to prevent any hiatus in its operations after the inauguration of the Commonwealth of the Philippines. It was thus provided that all laws of the Philippine Islands shall remain operative even after the inauguration of the Commonwealth of the Philippines, unless inconsistent with the Constitution, and that all references in such laws to the government or officials of the Philippine Islands shall be construed, in so far as applicable, to refer to the government and corresponding officials under the Constitution. It would seem to be consistent not only with the spirit but the letter of the Constitution to hold that section 478 of the Election Law remains operative and should now be construed to refer to the Electoral Commission, which, in so far as the power to judge election contests is concerned, corresponds to either the Senate or the House of Representative under the former regime. It is important to observe in this connection that said section 478 of the Election Law vested the power to regulate the time and manner in which notice of a contested election may be given, not in the Philippine Legislature but in the Senate and House of Representatives singly. In other words, the authority to prescribe the time and manner of filing contests in the elections of members of the Philippine Legislature was by statute lodged separately in the bodies clothed with power to decide such contests. Construing section 478 of the Election Law to refer to the National Assembly, as required by Article XV, section 2, of the Constitution, it seems reasonable to conclude that the authority to prescribe the time and manner of filing contests in the election of members of the National Assembly is vested in the Electoral Commission, which is now the body clothed with power to decide such contests. In the light of what has been said, the resolution of the National Assembly of December 3, 1935, could not have the effect of barring the right of the respondent Pedro Ynsua to contest the election of the petitioner. By the same token, the Electoral Commission was authorized by law to adopt its resolution of December 9, 1935, which fixed the time with in which written contests must be filed with the commission. Having been filed within the time fixed by its resolutions, the Electoral Commission has jurisdiction to hear and determine the contest filed by the respondent Pedro Ynsua against the petitioner Jose A. Angara.
Synopsis/Syllabi
EN BANC
[G.R. No. 133064. September 16, 1999]
JOSE C. MIRANDA, ALFREDO S. DIRIGE, MANUEL H. AFIADO, MARIANO V. BABARAN and ANDRES R. CABUYADAO, petitioners, vs. HON. ALEXANDER AGUIRRE, In his capacity as Executive Secretary; HON. EPIMACO VELASCO, in his capacity as Secretary of Local Government, HON. SALVADOR ENRIQUEZ, in his capacity as Secretary of Budget, THE COMMISSION ON AUDIT THE COMMISSION ON ELECTIONS HON. BENJAMIN G. DY, in his capacity as Governor of Isabela, THE HONORABLE SANGGUNIANG PANLALAWIGAN OF ISABELA, ATTY. BALTAZAR PICIO, in his capacity as Provincial Administrator, and MR. ANTONIO CHUA, in his capacity as Provincial Treasurer, respondents, GIORGIDI B. AGGABAO, intervenor . DECISION
PUNO, J.: This is a petition for a writ of prohibition with prayer for preliminary injunction assailing the constitutionality of Republic Act No. 8528 converting the city of Santiago, Isabela from an independent component city to a component city. On May 5, 1994, Republic Act No. 7720 which converted the municipality of Santiago, Isabela into an independent component city was signed into law. On July 4, 1994, the people of Santiago ratified R.A. No. 7720 in a plebiscite. 1 On February 14, 1998, Republic Act No. 8528 was enacted. It amended R.A. No. 7720. Among others, it changed the status of Santiago from an independent component city to a component city, viz:
AN ACT AMENDING CERTAIN SECTIONS OF REPUBLIC ACT NUMBERED 7720 AN ACT CONVERTING THE MUNICIPALITY OF SANTIAGO INTO AN INDEPENDENT COMPONENT CITY TO BE KNOWN AS THE CITY OF SANTIAGO. Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: SECTION 1. Section 2 of Republic Act No. 7720 is hereby amended by deleting the words an independent thereon so that said Section will read as follows: SEC. 2. The City of Santiago . The Municipality of Santiago shall be converted into a component city to be known as the City of Santiago, hereinafter referred to as the City, which shall comprise of the present territory of the Municipality of Santiago, Isabela. The territorial jurisdiction of the City shall be within the present metes and bounds of the Municipality of Santiago. Sec. 2. Section 51 of Republic Act No. 7720 is hereby amended deleting the entire section and in its stead substitute the following: SEC. 51. Election of Provincial Governor, Vice-Governor, Sangguniang Panlalawigan Members, and any Elective Provincial Position for the Province of Isabela .- The voters of the City of Santiago shall be qualified to
vote in the elections of the Provincial Governor, Vice-Governor, Sangguniang Panlalawigan members and other elective provincial positions of the Province of Isabela, and any such qualified voter can be a candidate for such provincial positions and any elective provincial office. Sec. 3. Repealing Clause.- All existing laws or parts thereof inconsistent with the provisions of this Act are hereby repealed or modified accordingly. Sec. 4. Effectivity.- This Act shall take effect upon its approval. Approved.
Petitioners assail the constitutionality of R.A. No. 8528.2 They alleged as ground the lack of provision in R.A. No. 8528 submitting the law for ratification by the people of Santiago City in a proper plebiscite. Petitioner Miranda was the mayor of Santiago at the time of the filing of the petition at bar. Petitioner Afiado is the President of the Liga ng mga Barangay ng Santiago City. Petitioners Dirige, Cabuyadao and Babaran are residents of Santiago City. In their Comment, respondent provincial officials of Isabela defended the constitutionality of R.A. No. 8528. They assailed the standing of petitioners to file the petition at bar. They also contend that the petition raises a political question over which this Court lacks jurisdiction. Another Comment was filed by the Solicitor General for the respondent public officials. The Solicitor General also contends that petitioners are not real parties in interest. More importantly, it is contended that R.A. No. 8528 merely reclassified Santiago City from an independent component city to a component city. It allegedly did not involve any creation, division, merger, abolition, or substantial alteration of boundaries of local government units, hence, a plebiscite of the people of Santiago is unnecessary. A third Comment similar in tone was submitted by intervenor Giorgidi B. Aggabao,3 a member of the provincial board of Isabela. 4 He contended that both the Constitution and the Local Government Code of 1991 do not require a plebiscite to approve a law that merely allowed qualified voters of a city to vote in provincial elections. The rules implementing the Local Government Code cannot require a plebiscite. He also urged that petitioners lacked locus standi . Petitioners filed a Reply to meet the arguments of the respondents and the intervenor. They defended their standing. They also stressed the changes that would visit the city of Santiago as a result of its reclassification. We find merit in the petition. First. The challenge to the locus standi of petitioners cannot succeed. It is now an ancient rule that the constitutionality of law can be challenged by one who will sustain a direct injury as a result of its enforcement.5 Petitioner Miranda was the mayor of Santiago City when he filed the present petition in his own right as mayor and not on behalf of the city, hence, he did not need the consent of the city council of Santiago City. It is also indubitable that the change of status of the city of Santiago from independent component city to a mere component city will affect his powers as mayor, as will be shown hereafter. The injury that he would sustain from the enforcement of R.A. No. 8528 is direct and immediate and not a mere generalized grievance shared with the people of Santiago City. Similarly, the standing of the other petitioners rests on a firm foundation. They are residents and voters in the city of Santiago. They have the right to be heard in the conversion of their city thru a plebiscite to be conducted by the COMELEC. The denial of this right in R.A. No. 8528 gives them proper standing to strike the law as unconstitutional. Second. The plea that this court back off from assuming jurisdiction over the petition at bar on the ground that it involves a political question has to be brushed aside. This plea has long lost its appeal especially in light of Section 1 of Article VIII of the 1987 Constitution which defines judicial power as including the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. To be sure, the cut between a political and justiciable issue has been made by this Court in many cases and need no longer mystify us. In Taada v. Cuenco,6 we held: x x x
The term political question connotes what it means in ordinary parlance, namely, a question of policy. It refers to those questions which under the Constitution are to be decided by the people in their sovereign capacity; or in regard to which
full discretionary authority has been delegated to the legislative or executive branch of the government. It is concerned with issues dependent upon the wisdom, not legality, of a particular measure.
In Casibang v. Aquino,7 we defined a justiciable issue as follows:

A purely justiciable issue implies a given right, legally demandable and enforceable, an act or omission violative of such right, and a remedy granted and sanctioned by law, for said breach of right.
Clearly, the petition at bar presents a justiciable issue. Petitioners claim that under Section 10, Article X of the 1987 Constitution they have a right to approve or disapprove R.A. No. 8528 in a plebiscite before it can be enforced. It ought to be self-evident that whether or not petitioners have the said right is a legal not a political question. For whether or not laws passed by Congress comply with the requirements of the Constitution pose questions that this Court alone can decide. The proposition that this Court is the ultimate arbiter of the meaning and nuances of the Constitution need not be the subject of a prolix explanation. Third. The threshold issue is whether R.A. No. 8528 is unconstitutional for its failure to provide that the conversion of the city of Santiago from an independent component city to a component city should be submitted to its people in a proper plebiscite. We hold that the Constitution requires a plebiscite. Section 10, Article X of the 1987 Constitution provides:
No province, city, municipality, or barangay may be created, or divided, merged, abolished, or its boundary substantially altered except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.
This constitutional requirement is reiterated in Section 10, Chapter 2 of the Local Government Code (R.A. No. 7160), thus:
Sec. 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.
The power to create, divide, merge, abolish or substantially alter boundaries of local government units belongs to Congress .8 This power is part of the larger power to enact laws which the Constitution vested in Congress.9 The exercise of the power must be in accord with the mandate of the Constitution. In the case at bar, the issue is whether the downgrading of Santiago City from an independent component city to a mere component city requires the approval of the people of Santiago City in a plebiscite. The resolution of the issue depends on whether or not the downgrading falls within the meaning of creation, division, merger, abolition or substantial alteration of boundaries of municipalities per Section 10, Article X of the Constitution. A close analysis of the said constitutional provision will reveal that the creation, division, merger, abolition or substantial alteration of boundaries of local government units involve a common denominator - - - material change in the political and economic rights of the local government units directly affected as well as the people therein. It is precisely for this reason that the Constitution requires the approval of the people in the political units directly affected. It is not difficult to appreciate the rationale of this constitutional requirement. The 1987 Constitution, more than any of our previous Constitutions, gave more reality to the sovereignty of our people for it was borne out of the people power in the 1986 EDSA revolution. Its Section 10, Article X addressed the undesirable practice in the past whereby local government units were created, abolished, merged or divided on the basis of the vagaries of politics and not of the welfare of the people. Thus, the consent of the people of the local government unit directly affected was required to serve as a checking mechanism to any exercise of legislative power creating, dividing, abolishing, merging or altering the boundaries of local government units. It is one instance where the people in their sovereign capacity decide on a matter that affects them - - - direct democracy of the people as opposed to democracy thru peoples representatives. This plebiscite requirement is also in accord with the philosophy of the Constitution granting more autonomy to local government units. The changes that will result from the downgrading of the city of Santiago from an independent component city to a component city are many and cannot be characterized as insubstantial. For one, the independence of the city as a political unit will be diminished. The city mayor will be placed under the administrative supervision of the provincial governor. The resolutions and ordinances of the city council of Santiago will have to be reviewed by the Provincial Board of Isabela. Taxes that will be collected by the city will now have to be shared with the province. Petitioners pointed out these far reaching changes on the life of the people of the city of Santiago, viz: 10
Although RESPONDENTS would like to make it appear that R.A. No. 8528 had merely re-classified Santiago City from an independent component city into a component city, the effect when challenged (sic) the Act were operational would be, actually, that of conversion. Consequently, there would be substantial changes in the political culture and administrative responsibilities of Santiago City, and the Province of Isabela. Santiago City from an independent component city will revert to the Province of Isabela, geographically, politically and administratively. Thus, the territorial land area of Santiago City will be added to the land area comprising the province of Isabela. This will be to the benefit or advantage of the Provincial Government of Isabela on account of the subsequent increase of its share from the internal revenue allotment (IRA) from the National Government (Section 285, R.A. No. 7160 or the Local Government Code of 1991). The IRA is based on land area and population of local government units, provinces included. The nature or kinds, and magnitude of the taxes collected by the City Government, and which taxes shall accrue solely to the City Government, will be redefined (Section 151, R.A. No. 7160), and may be shared with the province such as taxes on sand, gravel and other quarry resources (Section 138, R.A. No. 7160), professional taxes (Section 139, R.A. No. 7160), or amusement taxes (Section 140, R.A. No. 7160). The Provincial Government will allocate operating funds for the City. Inarguably, there would be a (sic) diminished funds for the local operations of the City Government because of reduced shares of the IRA in accordance with the schedule set forth by Section 285 of the R.A. No. 7160. The City Governments share in the proceeds in the development and utilization of national wealth shall be diluted since certain portions shall accrue to the Provincial Government (Section 292, R.A. No.7160). The registered voters of Santiago City will vote for and can be voted as provincial officials (Section 451 and 452 [c], R.A. No. 7160). The City Mayor will now be under the administrative supervision of the Provincial Governor who is tasked by law to ensure that every component city and municipality within the territorial jurisdiction of the province acts within the scope of its prescribed powers and functions (Section 29 and 465 (b) (2) (i), R.A. No. 7160), and to review (Section 30, R.A. No. 7160) all executive orders submitted by the former (Section 455 (b) (1) (xii), R.A. No. 7160) and (R)eportorial requirements with respect to the local governance and state of affairs of the city (Section 455 (b) (1) (xx), R.A. No. 7160). Elective city officials will also be effectively under the control of the Provincial Governor (Section 63, R.A. No. 7160). Such will be the great change in the state of the political autonomy of what is now Santiago City where by virtue of R.A. No. 7720, it is the Office of the President which has supervisory authority over it as an independent component city (Section 25, R.A. No. 7160; Section 4 (ARTICLE X), 1987 Constitution). The resolutions and ordinances adopted and approved by the Sangguniang Panlungsod will be subject to the review of the Sangguniang Panlalawigan (Sections 56, 468 (a) (1) (i), 468 (a) (2) (vii), and 469 (c) (4), R.A. No. 7160). Likewise, the decisions in administrative cases by the former could be appealed and acted upon by the latter (Section 67, R.A. No. 7160).
It is markworthy that when R.A. No. 7720 upgraded the status of Santiago City from a municipality to an independent component city, it required the approval of its people thru a plebiscite called for the purpose. There is neither rhyme nor reason why this plebiscite should not be called to determine the will of the people of Santiago City when R.A. No. 8528 downgrades the status of their city. Indeed, there is more reason to consult the people when a law substantially diminishes their right. Rule II, Article 6, paragraph (f) (1) of the Implementing Rules and Regulations of the Local Government Code is in accord with the Constitution when it provides that:
(f) Plebiscite - (1) no creation, conversion , division, merger, abolition, or substantial alteration of boundaries of LGUS shall take effect unless approved by a majority of the votes cast in a plebiscite called for the purpose in the LGU or LGUs affected. The plebiscite shall be conducted by the Commission on Elections (COMELEC) within one hundred twenty (120) days from the effectivity of the law or ordinance prescribing such action, unless said law or ordinance fixes another date.
x x x. The rules cover all conversions, whether upward or downward in character, so long as they result in a material change in the local government unit directly affected, especially a change in the political and economic rights of its people. A word on the dissenting opinions of our esteemed brethren. Mr. Justice Buena justifies R.A. No. 8528 on the ground that Congress has the power to amend the charter of Santiago City. This power of amendment, however, is limited by Section 10, Article X of the Constitution. Quite clearly, when an amendment of a law involves the creation, merger, division, abolition or substantial alteration of boundaries of local government units, a plebiscite in the political units directly affected is mandatory. He also contends that the amendment merely caused a transition in the status of Santiago as a city. Allegedly, it is a transition because no new city was created nor was a former city dissolved by
R.A. No. 8528. As discussed above, the spirit of Section 10, Article X of the Constitution calls for the people of the local government unit directly affected to vote in a plebiscite whenever there is a material change in their rights and responsibilities. They may call the downgrading of Santiago to a component city as a mere transition but they cannot blink away from the fact that the transition will radically change its physical and political configuration as well as the rights and responsibilities of its people. On the other hand, our esteemed colleague, Mr. Justice Mendoza, posits the theory that "only if the classification involves changes in income, population, and land area of the local government unit is there a need for such changes to be approved by the people x x x." With due respect, such an interpretation runs against the letter and spirit of section 10, Article X of the 1987 Constitution which, to repeat, states: "No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered except in accordance with the criteria established in the Local Government Code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected." It is clear that the Constitution imposes two conditions - - - first , the creation, division, merger, abolition or substantial alteration of boundary of a local government unit must meet the criteria fixed by the Local Government Code on income, population and land area and second , the law must be approved by the people "by a majority of the votes cast in a plebiscite in the political units directly affected." In accord with the Constitution, sections 7, 8, and 9 of the Local Government Code fixed the said criteria and they involve requirements on income, population and land area. These requirements, however, are imposed to help assure the economic viability of the local government unit concerned. They were not imposed to determine the necessity for a plebiscite of the people. Indeed, the Local Government Code does not state that there will be no more plebiscite after its requirements on income, population and land area have been satisfied. On the contrary, section 10, Chapter 2 of the Code provides: "No creation, division, merger, abolition, or substantial alteration of boundaries of local government units shall take effect unless approved by a majority of the votes casts in a plebiscite called for the purpose in the political unit or units directly affected. Said plebiscite shall be conducted by the COMELEC within one hundred twenty (120) days from the date of the effectivity of the law or ordinance effecting such action, unless said law or ordinance fixes another date." 11 Senator Aquilino Pimentel, the principal author of the Local Government Code of 1991, opines that the plebiscite is absolute and mandatory.12 It cannot be overstressed that the said two requirements of the Constitution have different purposes . The criteria fixed by the Local Government Code on income, population and land area are designed to achieve an economic purpose . They are to be based on verified indicators, hence, section 7, Chapter 2 of the Local Government Code requires that these "indicators shall be attested by the Department of Finance, the National Statistics Office, and the Lands Management Bureau of the Department of Environment and Natural Resources." In contrast, the people's plebiscite is required to achieve a political purpose --- to use the people's voice as a check against the pernicious political practice of gerrymandering. There is no better check against this excess committed by the political representatives of the people themselves than the exercise of direct people power. As well-observed by one commentator, as the creation, division, merger, abolition, or substantial alteration of boundaries are "xxx basic to local government, it is also imperative that these acts be done not only by Congress but also be approved by the inhabitants of the locality concerned. xxx By giving the inhabitants a hand in their approval, the provision will also eliminate the old practice of gerrymandering and minimize legislative action designed for the benefit of a few politicians. Hence, it promotes the autonomy of local government units."13 The records show that the downgrading of Santiago City was opposed by certain segments of its people. In the debates in Congress, it was noted that at the time R.A. No. 8528 was proposed, Santiago City has been converted to an independent component city barely two and a half (2 1/2) years ago and the conversion was approved by a majority of 14,000 votes. Some legislators expressed surprise for the sudden move to downgrade the status of Santiago City as there had been no significant change in its socio-economic-political status. The only reason given for the downgrading is to enable the people of the city to aspire for the leadership of the province. To say the least, the alleged reason is unconvincing for it is the essence of an independent component city that its people can no longer participate or be voted for in the election of officials of the province. The people of Santiago City were aware that they gave up that privilege when they voted to be independent from the province of Isabela. There was an attempt on the part of the Committee on Local Government to submit the downgrading of Santiago City to its people via a plebiscite. The
amendment to this effect was about to be voted upon when a recess was called. After the recess, the chairman of the Committee anounced the withdrawal of the amendment "after a very enlightening conversation with the elders of the Body." We quote the debates, viz: 14
"BILL ON SECOND READING H.B. No. 8729 - City of Santiago " Senator Tatad . Mr. President, I move that we consider House Bill No. 8729 as reported out under Committee Report No. 971. " The President. Is there any objection? [Silence] there being none, the motion is approved. "Consideration of House Bill No. 8729 is now in order. With the permission of the Body, the Secretary will read only the title of the bill without prejudice to inserting in the Record the whole text thereof. " The Acting Secretary [Atty. Raval] . House Bill No. 8729, entitled AN ACT AMENDING CERTAIN SECTIONS OF R.A. NO. 7720 ENTITLED "AN ACT CONVERTING THE MUNICIPALITY OF SANTIAGO INTO AN INDEPENDENT COMPONENT CITY TO BE KNOWN AS THE CITY OF SANTIAGO _______________________________________________________ The following is the full text of H.B. No. 8729 Insert
_______________________________________________________
" Senator Tatad . Mr. President, for the sponsorship, I ask that the distinguished Chairman of the Committee on Local Government be recognized. " The President. Senator Sotto is recognized. SPONSORSHIP SPEECH OF SENATOR SOTTO "Mr. President. House Bill No. 8729, which was introduced in the House by Congressman Antonio M. Abaya as its principal author, is a simple measure which merely seeks to convert the City of Santiago into a component city of the Province of Isabela. "The City of Santiago is geographically located within, and is physically an integral part of the Province of Isabela. As an independent component city, however, it is completely detached and separate from the said province as a local political unit. To use the language of the Explanatory Note of the proposed bill, the City of Santiago is an island in the provincial milieu. "The residents of the city no longer participate in the elections, nor are they qualified to run for any elective positions in the Province of Isabela. "The Province of Isabela, on the other hand, is no longer vested with the power and authority of general supervision over the city and its officials, which power and authority are now exercised by the Office of the President, which is very far away from Santiago City. Being geographically located within the Province of Isabela, the City of Santiago is affected, one way or the other, by the happenings in the said province, and is benefited by its progress and development. Hence, the proposed bill to convert the City of Santiago into a component city of Isabela. "Mr. President, it is my pleasure, therefore, to present for consideration of this august Body Committee Report No. 971 of the Committee on Local Government , recommending approval, with our proposed committee amendment, of House Bill No. 8729. "Thank you, Mr. President. " The President. The Majority Leader is recognized. " Senator Tatad . Mr. President, I moved (sic) that we close the period of interpellations. " The President. Is there any objection? [Silence] There being none, the period of interpellations is closed.
" Senator Tatad . I move that we now consider the committee amendments. " Senator Roco . Mr. President. " The President. What is the pleasure of Senator Roco? " Senator Roco . Mr. President, may I ask for a reconsideration of the ruling on the motion to close the period of interpellations just to be able to ask a few questions? " Senator Tatad . May I move for a reconsideration of my motion, Mr. President. " The President. Is there any objection to the reconsideration of the closing of the period of interpellations? [Silence] There being none, the motion is approved. "Senator Roco is recognized. " Senator Roco . Will the distinguished gentleman yield for some questions? " Senator Sotto . Willingly, Mr. President. " Senator Roco. Mr. President, together with the Chairman of the Committee on Local Government, we were with the sponsors when we approved this bill to make Santiago a City. That was about two and a half years ago. At that time, I remember it was the cry of the city that it be independent. Now we are deleting that word independent. " Mr. President, only because I was a co-author and a co-sponsor, for the Record , I want some explanation on what happened between then and now that has made us decide that the City of Santiago should cease to be independent and should now become a component city. " Senator Sotto . Mr. President, the officials of the province said during the public hearing that they are no longer vested with the power and authority of general supervision over the city. The power and authority is now being exercised by the Office of the President and it is quite far from the City of Santiago. "In the public hearing, we also gathered that there is a clamor from some sectors that they want to participate in the provincial elections. " Senator Roco . Mr. President, I did not mean to delay this. I did want it on record, however. I think there was a majority of 14,000 who approved the charter, and maybe we owe it to those who voted for that charter some degree of respect. But if there has been a change of political will, there has been a change of political will, then so be it. "Thank you, Mr. President. " Senator Sotto . Mr. President, to be very frank about it, that was a very important point raised by Senator Roco, and I will have to place it on the Record of the Senate that the reason why we are proposing a committee amendment is that, originally, there was an objection on the part of the local officials and those who oppose it by incorporating a plebiscite in this bill. That was the solution. Because there were some sectors in the City of Santiago who were opposing the reclassification or reconversion of the city into a component city. " Senator Roco . All I wanted to say, Mr. President -- because the two of us had special pictures (sic) in the city -- is that I thought it should be put on record that we have supported originally the proposal to make it an independent city. But now if it is their request, then, on the manifestation of the Chairman, let it be so. "Thank you. " Senator Drilon. Mr. President. " Senator Drilon. Will the gentleman yield for a few questions, Mr. President? " Senator Sotto . Yes, Mr. President. " Senator Drilon. Mr. President, further to the interpellation of our good friend, the Senator from Bicol, on the matter of the opinion of the citizens of Santiago City, there is a resolution passed by the Sanggunian on January 30, 1997 opposing the conversion of Santiago from an independent city. " This opposition was placed on records during the committee hearings. And that is the reason why, as mentioned by the good sponsor, one of the amendments is that a plebiscite be conducted before the law takes effect.
" The question I would like to raise-- and I would like to recall the statement of our Minority Leader -- is that, at this time we should not be passing it for a particular politician. " In this particular case, it is obvious that this bill is being passed in order that the additional territory be added to the election of the provincial officials of the province of Isabela. "Now, is this for the benefit of any particular politician, Mr. President. " Senator Sotto . If it is, I am not aware of it, Mr. President. " Senator Alvarez. Mr. President. " The President. With the permission of the two gentlemen on the Floor, Senator Alvarez is recognized. " Senator Alvarez. As a born inbred citizen of this city, Mr. President, may I share some information. "Mr. President, if we open up the election of the city to the provincial leadership, it will not be to the benefit of the provincial leadership, because the provincial leadership will then campaign in a bigger territory. "As a matter of fact, the ones who will benefit from this are the citizens of Santiago who will now be enfranchised in the provincial electoral process, and whose children will have the opportunity to grow into provincial leadership. This is one of the prime reasons why this amendment is being put forward. "While it is true that there may have been a resolution by the city council, those who signed the resolution were not the whole of the council. This bill was sponsored by the congressman of that district who represents a constituency, the voice of the district. "I think, Mr. President, in considering which interest is paramount, whose voice must be heard, and if we have to fathom the interest of the people, the law which has been crafted here in accordance with the rules should be given account, as we do give account to many of the legislations coming from the House on local issues. " Senator Drilon. Mr. President, the reason why I am raising this question is that, as Senator Roco said, just twoand-a-half years ago we passed a bill which indeed disenfranchized--if we want to use that phrase-- the citizens of the City of Santiago in the matter of the provincial election. Two-and-a-half years after, we are changing the rule. " In the original charter, the citizens of the City of Santiago participated in a plebiscite in order to approve the conversion of the city into an independent city. I believe that the only way to resolve this issue raised by Senator Roco is again to subject this issue to another plebiscite as part of the provision of this proposed bill and as will be proposed by the Committee Chairman as an amendment. "Thank you very much, Mr. President. " Senator Alvarez. Mr. President, the Constitution does not require that the change from an independent to a component city be subjected to a plebiscite. Sections 10, 11, 12 of Article X of the 1987 Constitution provides as follows: Sec. 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. This change from an independent city into a component city is none of those enumerated. So the proposal coming from the House is in adherence to this constitutional mandate which does not require a plebiscite. Senator Sotto . Mr. President, the key word here is conversion. The word conversion appears in that provision wherein we must call a plebiscite. During the public hearing, the representative of Congressman Abaya was insisting that this is not a conversion; this is merely a reclassification. But it is clear in the bill. We are amending a bill that converts, and we are converting it into a component city. That is how the members of the committee felt. That is why we have proposed an amendment to this, and this is to incorporate a plebiscite in as much as there is no provision on incorporating a plebiscite. Because we would like not only to give the other people of Santiago a chance or be enfranchised as far as the leadership of the province is concerned, but also we will give a chance to those who are opposing it. To them, this is the best compromise. Let the people decide, instead of the political leaders of Isabela deciding for them.
" Senator Tatad . Mr. President. " The President. The Majority Leader is recognized. " Senator Tatad . At this point, Mr. President, I think we can move to close the period of interpellations. " The President. Is there any objection? [Silence] There being none, the motion is approved. " Senator Tatad . I move that we now consider the committee amendments, Mr. President. " The President. Is there any objection? Silence] There being none, the motion is approved. " Senator Sotto . On page 2, after line 13, insert a new Section 3, as follows: "SEC. 3. SECTION 49 OF REPUBLIC ACT NO. 7720 IS HEREBY AMENDED BY DELETING THE ENTIRE SECTION AND IN ITS STEAD SUBSTITUTE THE FOLLOWING: "SEC. 49. PLEBISCITE. - THE CONVERSION OF THE CITY OF SANTIAGO INTO A COMPONENT CITY OF THE PROVINCE OF ISABELA SHALL TAKE EFFECT UPON THE RATIFICATION OF THIS ACT BY A MAJORITY OF THE PEOPLE OF SAID CITY IN A PLEBISCITE WHICH SHALL BE HELD FOR THE PURPOSE WITHIN SIXTY (60) DAYS FROM THE APPROVAL OF THIS ACT. THE COMMISSION ON ELECTIONS SHALL CONDUCT AND SUPERVISE SUCH PLEBISCITE. " The President. Is there any objection? " Senator Enrile. Mr. President. " The President. Senator Enrile is recognized. " Senator Enrile. I object to this committee amendment, Mr. President. "SUSPENSION OF SESSION " Senator Tatad . May I ask for a one-minute suspension of the session. " The President. The session is suspended for a few minutes if there is no objection. [There was none] "It was 7:54 p.m. "RESUMPTION OF SESSION "At 7:57 p.m., the session was resumed. " The President. The session is resumed. "Senator Sotto is recognized. " Senator Sotto . Mr. President, after a very enlightening conversation with the elders of the Body, I withdraw my amendment. " The President. The amendment is withdrawn. " Senator Maceda. Mr. President. " The President. Senator Maceda is recognized. " Senator Maceda. We wish to thank the sponsor for the withdrawal of the amendment. " Mr. President, with due respect to the Senator from Isabela -- I am no great fan of the Senator from Isabela -- but it so happens that this is a local bill affecting not only his province but his own city where he is a resident and registered voter. "So, unless the issue is really a matter of life and death and of national importance, senatorial courtesy demands that we, as much as possible, accommodate the request of the Senator from Isabela as we have done on matters affecting the district of other senators. I need not remind them. "Thank you anyway, Mr. President. " Senator Alvarez. Mr. President. " The President. Senator Alvarez is recognized.
" Senator Alvarez. Mr. President, may I express my deepest appreciation for the statement of the gentleman from Ilocos and Laguna. Whatever he may have said, the feeling is not mutual. At least for now, I have suddenly become his great fan for the evening. "May I put on record, Mr. President, that I campaigned against the cityhood of Santiago not because I do not want it to be a city but because it had disenfranchised the young men of my city from aspiring for the leadership of the province. The town is the gem of the province. How could we extricate the town from the province? "But I would like to thank the gentleman, Mr. President, and also the Chairman of the Committee. " Senator Tatad . Mr. President. " The President. The Majority Leader is recognized. " Senator Tatad . There being no committee amendments, I move that the period of committee amendments be closed. " The President. Shall we amend the title of this bill by removing the word independent preceding component city? " Senator Sotto . No, Mr. President. We are merely citing the title. The main title of this House Bill No. 8729 is An Act Amending Certain Sections of Republic Act 7720. The title is the title of Republic Act 7720. So, I do not think that we should amend that anymore. " The President. What is the pending motion? Will the gentleman kindly state the motion? " Senator Tatad . I move that we close the period of committee amendments. " The President. Is there any objection? [Silence] There being none, the motion is approved. " Senator Tatad . Unless there are any individual amendments, I move that we close the period of individual amendments. " The President. Is there any objection? [Silence] There being none, the period of individual amendments is closed. "APPROVAL OF H.B. NO. 8729 ON SECOND READING " Senator Tatad . Mr. President, I move that we vote on Second Reading on House Bill No. 8729. " The President. Is there any objection? [Silence] There being none, we shall now vote on Second Reading on House Bill No. 8729. "As many as are in favor of the bill, say aye. " Several Members. Aye As many as are against the bill, say nay. [Silence] "House Bill No. 8729 is approved on Second Reading."
The debates cannot but raise some quizzical eyebrows on the real purpose for the downgrading of the city of Santiago. There is all the reason to listen to the voice of the people of the city via a plebiscite. In the case of Tan, et al. vs. COMELEC,15 BP 885 was enacted partitioning the province of Negros Occidental without consulting its people in a plebiscite. In his concurring opinion striking down the law as unconstitutional, Chief Justice Teehankee cited the illicit political purpose behind its enactment , viz:
"The scenario, as petitioners urgently asserted, was to have the creation of the new Province a fait accompli by the time elections are held on February 7, 1986. The transparent purpose is unmistakably so that the new Governor and other officials shall by then have been installed in office, ready to function for purposes of the election for President and Vice-President. Thus, the petitioners reported after the event: With indecent haste, the plebiscite was held; Negros del Norte was set up and proclaimed by President Marcos as in existence; a new set of government officials headed by Governor Armando Gustilo was appointed; and, by the time the elections were held on February 7, 1986, the political machinery was in place to deliver the solid North to ex-President Marcos. The rest is history. What happened in Negros del Norte during the elections - the unashamed use of naked power and resources - contributed in no small way to arousing peoples power and steel the ordinary citizen to perform deeds of courage and patriotism that makes one proud to be a Filipino today. "The challenged Act is manifestly void and unconstitutional. Consequently, all the implementing acts complained of, viz. the plebiscite, the proclamation of a new province of Negros del Norte and the appointment of its officials are equally void. The limited holding of the plebiscite only in the areas of the proposed new province (as provided by Section 4 of the
Act) to the exclusion of the voters of the remaining areas of the integral province of Negros Occidental (namely, the three cities of Bacolod, Bago and La Carlota and the Municipalities of Las Castellana, Isabela, Moises Padilla, Pontevedra, Hinigaran, Himamaylan, Kabankalan, Murcia, Valladolid, San Enrique, Ilog, Cauayan, Hinoba-an and Sipalay and Candoni), grossly contravenes and disregards the mandate of Article XI, section 3 of the then prevailing 1973 Constitution that no province may be created or divided or its boundary substantially altered without the approval of a majority of the votes in a plebiscite in the unit or units affected . It is plain that all the cities and municipalities of the province of Negros Occidental, not merely those of the proposed new province, comprise the units affected . It follows that the voters of the whole and entire province of Negros Occidental have to participate and give their approval in the plebiscite, because the whole province is affected by its proposed division and substantial alteration of its boundary. To limit the plebiscite to only the voters of the areas to be partitioned and seceded from the province is as absurd and illogical as allowing only the secessionists to vote for the secession that they demanded against the wishes of the majority and to nullify the basic principle of majority rule.
Mr. Justice Mendoza and Mr. Justice Buena also cite two instances when allegedly independent component cities were downgraded into component cities without need of a plebiscite. They cite the City of Oroquieta, Misamis Occidental, 16 and the City of San Carlos, Pangasinan17 whose charters were amended to allow their people to vote and be voted upon in the election of officials of the province to which their city belongs without submitting the amendment to a plebiscite. With due respect, the cities of Oroquieta and San Carlos are not similarly situated as the city of Santiago. The said two cities then were not independent component cities unlike the city of Santiago. The two cities were chartered but were not independent component cities for both were not highly urbanized cities which alone were considered independent cities at that time . Thus, when the case of San Carlos City was under consideration by the Senate, Senator Pimentel explained:18
"x x x Senator Pimentel. The bill under consideration, Mr. President, merely empowers the voters of San Carlos to vote in the elections of provincial officials. There is no intention whatsoever to downgrade the status of the City of San Carlos and there is no showing whatsoever that the enactment of this bill will, in any way, diminish the powers and prerogatives already enjoyed by the City of San Carlos. In fact, the City of San Carlos as of now, is a component city . It is not a highly urbanized city. Therefore, this bill merely, as we said earlier, grants the voters of the city, the power to vote in provincial elections, without in any way changing the character of its being a component city . It is for this reason that I vote in favor of this bill.
It was Senator Pimentel who also sponsored the bill 19 allowing qualified voters of the city of Oroquieta to vote in provincial elections of the province of Misamis Occidental. In his sponsorship speech, he explained that the right to vote being given to the people of Oroquieta City was consistent with its status as a component city.20 Indeed, during the debates, former Senator Neptali Gonzales pointed out the need to remedy the anomalous situation then obtaining xxx where voters of one component city can vote in the provincial election while the voters of another component city cannot vote simply because their charters so provide.21 Thus, Congress amended other charters of component cities prohibiting their people from voting in provincial elections. IN VIEW WHEREOF, the petition is granted. Republic Act No. 8528 is declared unconstitutional and the writ of prohibition is hereby issued commanding the respondents to desist from implementing said law. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Kapunan, Panganiban, Pardo, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur. Vitug, J., see separate opinion. Mendoza, J., see dissenting opinion. Quisumbing, and Purisima, JJ., joins J. Mendoza in his dissenting opinion. Buena, J., see dissenting opinion.
1 See Section 4 of R.A. No. 7720. 2 See Section 10, Article X of the 1987 Constitution. 3 The intervention was granted on June 30, 1998. 4 After R.A. No. 8528 was enacted, COMELEC reallocated the seats for the provincial board in Isabela. It added one (1) seat to the 4th district where Santiago City belongs. The intervenor won the additional seat in the May 11, 1998 elections.
5 Sanidad vs. COMELEC, 73 SCRA 333 (1976). 6 100 Phil. 1101 (1957). 7 92 SCRA 642 (1979). 8 Mendenilla v. Onandia, 115 Phil. 534 (1962). 9 Section 1, Article VI of the 1987 Constitution. 10 Reply of Petitioners, pp. 7-9. 11 See also Rule II, Article 6, par. F(1) of the Implementing Rules of the Local Government Code. 12 Pimentel, The Local Government Code of 1991, The Key to National Development, p. 36. 13 Hector S. de Leon, Philippine Constitutional Law, Vol. 2, 1991 ed., p. 509. 14 Journal of the Senate, 10th Congress, 3rd Regular Session, Session No. 55, February 3, 1998, pp. 92-100. 15 142 SCRA 727, 753-754 (1986). 16 See R.A. No. 6720 which amended R.A. No. 5518. 17 See R.A. No. 6843 which amended R.A. No. 4487. 18 Record of the Senate, October 20, 1989, p. 795. 19 House Bill No. 1881; Committee Report Nos. 73 and 76 in the Senate. 20 Record of the Senate, November 25, 1988, p. 763. 21 Ibid., p. 764. See Record of the Senate, October 6, 1989, p. 506 where the cases of the cities of Naga and Ormoc were cited as examples.
EN BANC
[G.R. No. 160261. November 10, 2003]
ERNESTO B. FRANCISCO, JR., petitioner, NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA MANGGAGAWANG PILIPINO, INC., ITS OFFICERS AND MEMBERS, petitioner-in-intervention, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs. THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER JOSE G. DE VENECIA, THE SENATE, REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON, REPRESENTATIVE GILBERTO C. TEODORO, JR. AND REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, respondents, JAIME N. SORIANO, respondent-in-Intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
[G.R. No. 160262. November 10, 2003]
SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND HENEDINA RAZONABAD, petitioners, ATTYS. ROMULO B. MACALINTAL AND PETE QUIRINO QUADRA, petitioners-in-intervention, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs. THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents, JAIME N. SORIANO, respondent- in- intervention, SENATOR AQUILINO Q. PIMENTEL , respondent-in-intervention.
[G.R. No. 160263. November 10, 2003]
ARTURO M. DE CASTRO AND SOLEDAD M. CAGAMPANG, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioners-inintervention, vs. FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE
PRESIDENT, AND JOSE G. DE VENECIA, JR., IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF REPRESENTATIVES, respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-inintervention.
[G.R. No. 160277. November 10, 2003]
FRANCISCO I. CHAVEZ, petitioner, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs. JOSE G. DE VENECIA, IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF REPRESENTATIVES, FRANKLIN M. DRILON, IN HIS CAPACITY AS PRESIDENT OF THE SENATE OF THE REPUBLIC OF THE PHILIPPINES, GILBERT TEODORO, JR., FELIX WILLIAM FUENTEBELLA, JULIO LEDESMA IV, HENRY LANOT, KIM BERNARDO-LOKIN, MARCELINO LIBANAN, EMMYLOU TALIO-SANTOS, DOUGLAS CAGAS, SHERWIN GATCHALIAN, LUIS BERSAMIN, JR., NERISSA SOON-RUIZ, ERNESTO NIEVA, EDGAR ERICE, ISMAEL MATHAY, SAMUEL DANGWA, ALFREDO MARAON, JR., CECILIA CARREON-JALOSJOS, AGAPITO AQUINO, FAUSTO SEACHON, JR., GEORGILU YUMUL-HERMIDA, JOSE CARLOS LACSON, MANUEL ORTEGA, ULIRAN JUAQUIN, SORAYA JAAFAR, WILHELMINO SY-ALVARADO, CLAUDE BAUTISTA, DEL DE GUZMAN, ZENAIDA CRUZ-DUCUT, AUGUSTO BACULIO, FAUSTINO DY III, AUGUSTO SYJUCO, ROZZANO RUFINO BIAZON, LEOVIGILDO BANAAG, ERIC SINGSON, JACINTO PARAS, JOSE SOLIS, RENATO MATUBO, HERMINO TEVES, AMADO ESPINO, JR., EMILIO MACIAS, ARTHUR PINGOY, JR., FRANCIS NEPOMUCENO, CONRADO ESTRELLA III, ELIAS BULUT, JR., JURDIN ROMUALDO, JUAN PABLO BONDOC, GENEROSO TULAGAN, PERPETUO YLAGAN, MICHAEL DUAVIT, JOSEPH DURANO, JESLI LAPUS, CARLOS COJUANGCO, GIORGIDI AGGABAO, FRANCIS ESCUDERRO, RENE VELARDE, CELSO LOBREGAT, ALIPIO BADELLES, DIDAGEN DILANGALEN, ABRAHAM MITRA, JOSEPH SANTIAGO, DARLENE ANTONIO-CUSTODIO, ALETA SUAREZ, RODOLF PLAZA, JV BAUTISTA, GREGORIO IPONG, GILBERT REMULLA, ROLEX SUPLICO, CELIA LAYUS, JUAN MIGUEL ZUBIRI, BENASING MACARAMBON, JR., JOSEFINA JOSON, MARK COJUANGCO, MAURICIO DOMOGAN, RONALDO ZAMORA, ANGELO MONTILLA, ROSELLER BARINAGA, JESNAR FALCON, REYLINA NICOLAS, RODOLFO ALBANO, JOAQUIN CHIPECO, JR., AND RUY ELIAS LOPEZ, respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
[G.R. No. 160292. November 10, 2003]
HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, MA. CECILIA PAPA, NAPOLEON C. REYES, ANTONIO H. ABAD, JR., ALFREDO C. LIGON, JOAN P. SERRANO AND GARY S. MALLARI, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs. HON. SPEAKER JOSE G. DE VENECIA, JR. AND ROBERTO P. NAZARENO, IN HIS CAPACITY AS SECRETARY GENERAL OF THE HOUSE OF REPRESENTATIVES, AND THE HOUSE OF REPRESENTATIVES, respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
[G.R. No. 160295. November 10, 2003]
SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M. GONZALES, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs. THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
[G.R. No. 160310. November 10, 2003]
LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR, MELVIN MATIBAG, RAMON MIQUIBAS, RODOLFO MAGSINO, EDUARDO MALASAGA, EDUARDO SARMIENTO, EDGARDO NAOE, LEONARDO GARCIA, EDGARD SMITH, EMETERIO MENDIOLA, MARIO TOREJA, GUILLERMO CASTASUS, NELSON A. LOYOLA, WILFREDO BELLO, JR., RONNIE TOQUILLO, KATE ANN VITAL, ANGELITA Q. GUZMAN, MONICO PABLES, JR., JAIME BOAQUINA, LITA A. AQUINO, MILA P. GABITO, JANETTE ARROYO, RIZALDY EMPIG, ERNA LAHUZ, HOMER CALIBAG, DR. BING ARCE, SIMEON ARCE, JR., EL DELLE ARCE, WILLIE RIVERO, DANTE DIAZ, ALBERTO BUENAVISTA, FAUSTO BUENAVISTA, EMILY SENERIS, ANNA CLARISSA LOYOLA, SALVACION LOYOLA, RAINIER
QUIROLGICO, JOSEPH LEANDRO LOYOLA, ANTONIO LIBREA, FILEMON SIBULO, MANUEL D. COMIA, JULITO U. SOON, VIRGILIO LUSTRE, AND NOEL ISORENA, MAU RESTRIVERA, MAX VILLAESTER, AND EDILBERTO GALLOR, petitioners , WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs. THE HOUSE OF REPRESENTATIVES, REPRESENTED BY HON. SPEAKER JOSE C. DE VENECIA, JR., THE SENATE, REPRESENTED BY HON. SENATE PRESIDENT FRANKLIN DRILON, HON. FELIX FUENTEBELLA, ET AL., respondents.
[G.R. No. 160318. November 10, 2003]
PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners, vs. HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE OF REPRESENTATIVES, HON. SENATE PRESIDENT FRANKLIN M. DRILON, AND ALL MEMBERS, PHILIPPINE SENATE, respondents.
[G.R. No. 160342. November 10, 2003]
ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A MEMBER OF THE INTEGRATED BAR OF THE PHILIPPINES, MANILA III, AND ENGR. MAXIMO N. MENEZ JR., IN HIS CAPACITY AS A TAXPAYER AND MEMBER OF THE ENGINEERING PROFESSION, petitioners, vs. THE HOUSE OF REPRESENTATIVES REPRESENTED BY THE 83 HONORABLE MEMBERS OF THE HOUSE LED BY HON. REPRESENTATIVE WILLIAM FUENTEBELLA, respondents .
[G.R. No. 160343. November 10, 2003]
INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs . THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents.
[G.R. No. 160360. November 10, 2003]
CLARO B. FLORES, petitioner, vs. THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER, AND THE SENATE OF THE PHILIPPINES, THROUGH THE SENATE PRESIDENT, respondents .
[G.R. No. 160365. November 10, 2003]
U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C. PADERANGA, DANILO V. ORTIZ, GLORIA C. ESTENZO-RAMOS, LIZA D. CORRO, LUIS V. DIORES, SR., BENJAMIN S. RALLON, ROLANDO P. NONATO, DANTE T. RAMOS, ELSA R. DIVINAGRACIA, KAREN B. CAPARROS-ARQUILLANO, SYLVA G. AGUIRREPADERANGA, FOR THEMSELVES AND IN BEHALF OF OTHER CITIZENS OF THE REPUBLIC OF THE PHILIPPINES, petitioners, vs. THE HOUSE OF REPRESENTATIVES, SPEAKER JOSE G. DE VENECIA, THE SENATE OF THE PHILIPPINES, SENATE PRESIDENT FRANKLIN DRILON, HOUSE REPRESENTATIVES FELIX FUENTEBELLA AND GILBERTO TEODORO, BY THEMSELVES AND AS REPRESENTATIVES OF THE GROUP OF MORE THAN 80 HOUSE REPRESENTATIVES WHO SIGNED AND FILED THE IMPEACHMENT COMPLAINT AGAINST SUPREME COURT CHIEF JUSTICE HILARIO G. DAVIDE, JR. respondents .
[G.R. No. 160370. November 10, 2003]
FR. RANHILIO CALLANGAN AQUINO, petitioner, vs. THE HONORABLE PRESIDENT OF THE SENATE, THE HONORABLE SPEAKER OF THE HOUSE OF REPRESENTATIVES, respondents.
[G.R. No. 160376. November 10, 2003]
NILO A. MALANYAON, petitioner, vs . HON. FELIX WILLIAM FUENTEBELLA AND GILBERT TEODORO, IN REPRESENTATION OF THE 86 SIGNATORIES OF THE ARTICLES OF IMPEACHMENT AGAINST CHIEF JUSTICE HILARIO G. DAVIDE,
JR. AND THE HOUSE OF REPRESENTATIVES, CONGRESS OF THE PHILIPPINES, REPRESENTED BY ITS SPEAKER, HON. JOSE G. DE VENECIA, respondents.
[G.R. No. 160392. November 10, 2003]
VENICIO S. FLORES AND HECTOR L. HOFILEA, petitioners, vs. THE HOUSE OF REPRESENTATIVES, THROUGH SPEAKER JOSE G. DE VENECIA, AND THE SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT FRANKLIN DRILON, respondents.
[G.R. No. 160397. November 10, 2003]
IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST CHIEF JUSTICE HILARIO G. DAVIDE, JR., ATTY. DIOSCORO U. VALLEJOS, JR., petitioner.
[G.R. No. 160403. November 10, 2003]
PHILIPPINE BAR ASSOCIATION, petitioner, vs. THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR PRESIDING OFFICER, HON. JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELA, THE SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT, HON. FRANKLIN DRILON, respondents.
[G.R. No. 160405. November 10, 2003]
DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY CHAPTER, MANUEL M. MONZON, PRESIDING OF IBP, CEBU PROVINCE, VICTOR A. MAAMBONG, PROVINCIAL BOARD MEMBER, ADELINO B. SITOY, DEAN OF THE COLLEG EOF LAW, UNIVERSITY OF CEBU, YOUNG LAWYERS ASSOCAITION OF CEBU, INC. [YLAC], REPRSEENTED BY ATTY. MANUEL LEGASPI, CONFEDERATION OF ACCREDITED MEDIATORS OF THE PHILIPPINES, INC. [CAMP, INC], REPRESENTED BY RODERIC R. POCA, MANDAUE LAWYERS ASSOCIATION,
[MANLAW], REPRESENTED BY FELIPE VELASQUEZ, FEDERACION INTERNACIONAL DE ABOGADAS [FIDA], REPRESENTED BY THELMA L. JORDAN, CARLOS G. CO, PRESIENT OF CEBU CHAMBER OF COMMERCE AND INDUSTRY AND CEBU LADY LAWYERS ASSOCIATION, INC. [CELLA, INC.], MARIBELLE NAVARRO AND BERNARDITO FLORIDO, PAST PRESIDENT CEBU CHAMBER OF COMMERCE AND INTEGRATED BAR OF THE PHILIPPINES, CEBU CHAPTER, petitioners, vs. THE HOUSE OF REPRESENTATIVES, REPRESENTED BY REP. JOSE G. DE VENECIA, AS HOUSE SPEAKER AND THE SENATE, REPRESENTED BY SENATOR FRANKLIN DRILON, AS SENATE PRESIDENT, respondents. DECISION
CARPIO-MORALES, J .:
There can be no constitutional crisis arising from a conflict, no matter how passionate and seemingly irreconcilable it may appear to be, over the determination by the independent branches of government of the nature, scope and extent of their respective constitutional powers where the Constitution itself provides for the means and bases for its resolution. Our nations history is replete with vivid illustrations of the often frictional, at times turbulent, dynamics of the relationship among these co-equal branches. This Court is confronted with one such today involving the legislature and the judiciary which has drawn legal luminaries to chart antipodal courses and not a few of our countrymen to vent cacophonous sentiments thereon. There may indeed be some legitimacy to the characterization that the present controversy subject of the instant petitions whether the filing of the second impeachment complaint against Chief Justice Hilario G. Davide, Jr. with the House of Representatives falls within the one year bar provided in the Constitution, and whether the resolution thereof is a political question has resulted in a political crisis. Perhaps even more truth to the view that it was brought upon by a political crisis of conscience. In any event, it is with the absolute certainty that our Constitution is sufficient to address all the issues which this controversy spawns that this Court unequivocally pronounces, at the first instance, that the feared resort to extra-constitutional methods of resolving it is neither necessary nor legally permissible. Both its resolution and protection of the public interest lie in adherence to, not departure from, the Constitution. In passing over the complex issues arising from the controversy, this Court is ever mindful of the essential truth that the inviolate doctrine of separation of powers among the legislative, executive or judicial branches of government by no means prescribes for absolute autonomy in the discharge by each of that part of the governmental power assigned to it by the sovereign people. At the same time, the corollary doctrine of checks and balances which has been carefully calibrated by the Constitution to temper the official acts of each of these three branches must be given effect without destroying their indispensable co-equality. Taken together, these two fundamental doctrines of republican government, intended as they are to insure that governmental power is wielded only for the good of the people, mandate a relationship of interdependence and coordination among these branches where the delicate functions of enacting, interpreting and enforcing laws are harmonized to achieve a unity of governance, guided only by what is in the greater interest and well-being of the people. Verily, salus populi est suprema lex. Article XI of our present 1987 Constitution provides:
ARTICLE XI ACCOUNTABILITY OF PUBLIC OFFICERS SECTION 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives. SECTION 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. SECTION 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment. (2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. (3) A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded. (4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year. (6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate. (7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment according to law. (8) The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section. (Emphasis and underscoring supplied) Following the above-quoted Section 8 of Article XI of the Constitution, the 12th Congress of the House of Representatives adopted and approved the Rules of Procedure in Impeachment Proceedings (House Impeachment Rules) on November 28, 2001, superseding the previous House Impeachment Rules[1] approved by the 11th Congress. The relevant distinctions between these two Congresses House Impeachment Rules are shown in the following tabulation: 11TH CONGRESS RULES RULE II 12TH CONGRESS NEW RULES RULE V
INITIATING IMPEACHMENT Section 2. Mode of Initiating Impeachment . Impeachment shall be initiated only by a verified complaint for impeachment filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof or by a verified complaint or resolution of impeachment filed by at least one-third (1/3) of all the Members of the House.
BAR AGAINST INITIATION OF IMPEACHMENT PROCEEDINGS AGAINST THE SAME OFFICIAL Section 16. Impeachment Proceedings Deemed Initiated . In cases where a Member of the House files a verified complaint of impeachment or a citizen files a verified complaint that is endorsed by a Member of the House through a resolution of endorsement against an impeachable officer, impeachment proceedings against such official are deemed initiated on the day the Committee on Justice finds that the verified complaint and/or resolution against such official, as the case may be, is sufficient in substance, or on the date the House votes to overturn or affirm the finding of the said Committee that the verified complaint and/or resolution, as the case may be, is not sufficient in substance. In cases where a verified complaint or a resolution of impeachment is filed or endorsed, as the case may be, by at least one-third (1/3) of the Members of the House, impeachment proceedings are deemed initiated at the time of the filing of such verified complaint or resolution of impeachment with the Secretary General.
RULE V BAR AGAINST IMPEACHMENT Section 14. Scope of Bar. No
Section 17. Bar Against
impeachment proceedings shall be initiated against the same official more than once within the period of one (1) year.
Initiation Of Impeachment Proceedings. Within a period of one (1) year from the date impeachment proceedings are deemed initiated as provided in Section 16 hereof, no impeachment proceedings, as such, can be initiated against the same official . (Italics in the original; emphasis and underscoring supplied)
On July 22, 2002, the House of Representatives adopted a Resolution, [2] sponsored by Representative Felix William D. Fuentebella, which directed the Committee on Justice to conduct an investigation, in aid of legislation, on the manner of disbursements and expenditures by the Chief Justice of the Supreme Court of the Judiciary Development Fund (JDF).[3] On June 2, 2003, former President Joseph E. Estrada filed an impeachment complaint [4] (first impeachment complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate Justices[5] of this Court for culpable violation of the Constitution, betrayal of the public trust and other high crimes.[6] The complaint was endorsed by Representatives Rolex T. Suplico, Ronaldo B. Zamora and Didagen Piang Dilangalen, [7] and was referred to the House Committee on Justice on August 5, 2003[8] in accordance with Section 3(2) of Article XI of the Constitution which reads: Section 3(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. The House Committee on Justice ruled on October 13, 2003 that the first impeachment complaint was sufficient in form,[9] but voted to dismiss the same on October 22, 2003 for being insufficient in substance. [10] To date, the Committee Report to this effect has not yet been sent to the House in plenary in accordance with the said Section 3(2) of Article XI of the Constitution. Four months and three weeks since the filing on June 2, 2003 of the first complaint or on October 23, 2003, a day after the House Committee on Justice voted to dismiss it, the second impeachment complaint [11] was filed with the Secretary General of the House [12] by Representatives Gilberto C. Teodoro, Jr. (First District, Tarlac) and Felix William B. Fuentebella (Third District, Camarines Sur) against Chief Justice Hilario G. Davide, Jr., founded on the alleged results of the legislative inquiry initiated by above-mentioned House Resolution. This second impeachment complaint was accompanied by a Resolution of Endorsement/Impeachment signed by at least one-third (1/3) of all the Members of the House of Representatives. [13] Thus arose the instant petitions against the House of Representatives, et. al., most of which petitions contend that the filing of the second impeachment complaint is unconstitutional as it violates the provision of Section 5 of Article XI of the Constitution that [n]o impeachment proceedings shall be initiated against the same official more than once within a period of one year. In G.R. No. 160261 , petitioner Atty. Ernesto B. Francisco, Jr., alleging that he has a duty as a member of the Integrated Bar of the Philippines to use all available legal remedies to stop an unconstitutional impeachment, that the issues raised in his petition for Certiorari, Prohibition and Mandamus are of transcendental importance, and that he himself was a victim of the capricious and arbitrary changes in the
[14]
Rules of Procedure in Impeachment Proceedings introduced by the 12th Congress, posits that his right to bring an impeachment complaint against then Ombudsman Aniano Desierto had been violated due to the capricious and arbitrary changes in the House Impeachment Rules adopted and approved on November 28, 2001 by the House of Representatives and prays that (1) Rule V, Sections 16 and 17 and Rule III, Sections 5, 6, 7, 8, and 9 thereof be declared unconstituti
EN BANC
[G.R. No. 127882. December 1, 2004]
LA BUGAL-BLAAN TRIBAL ASSOCIATION, INC., Represented by its Chairman FLONG MIGUEL M. LUMAYONG; WIGBERTO E. TAADA; PONCIANO BENNAGEN; JAIME TADEO; RENATO R. CONSTANTINO JR.; FLONG AGUSTIN M. DABIE; ROBERTO P. AMLOY; RAQIM L. DABIE; SIMEON H. DOLOJO; IMELDA M. GANDON; LENY B. GUSANAN; MARCELO L. GUSANAN; QUINTOL A. LABUAYAN; LOMINGGES D. LAWAY; BENITA P. TACUAYAN; Minors JOLY L. BUGOY, Represented by His Father UNDERO D. BUGOY and ROGER M. DADING; Represented by His Father ANTONIO L. DADING; ROMY M. LAGARO, Represented by His Father TOTING A. LAGARO; MIKENY JONG B. LUMAYONG, Represented by His Father MIGUEL M. LUMAYONG; RENE T. MIGUEL, Represented by His Mother EDITHA T. MIGUEL; ALDEMAR L. SAL, Represented by His Father DANNY M. SAL; DAISY RECARSE, Represented by Her Mother LYDIA S. SANTOS; EDWARD M. EMUY; ALAN P. MAMPARAIR; MARIO L. MANGCAL; ALDEN S. TUSAN; AMPARO S. YAP; VIRGILIO CULAR; MARVIC M.V.F. LEONEN; JULIA REGINA CULAR, GIAN CARLO CULAR, VIRGILIO CULAR JR., Represented by Their Father VIRGILIO CULAR; PAUL ANTONIO P. VILLAMOR, Represented by His Parents JOSE VILLAMOR and ELIZABETH PUA-VILLAMOR; ANA GININA R. TALJA, Represented by Her Father MARIO JOSE B. TALJA; SHARMAINE R. CUNANAN, Represented by Her Father ALFREDO M. CUNANAN; ANTONIO JOSE A. VITUG III, Represented by His Mother ANNALIZA A. VITUG, LEAN D. NARVADEZ, Represented by His Father MANUEL E. NARVADEZ JR.; ROSERIO MARALAG LINGATING, Represented by Her Father RIO OLIMPIO A. LINGATING; MARIO JOSE B. TALJA; DAVID E. DE VERA; MARIA MILAGROS L. SAN JOSE; Sr. SUSAN O. BOLANIO, OND; LOLITA [1] G. DEMONTEVERDE; BENJIE L. NEQUINTO; ROSE LILIA S. ROMANO; ROBERTO S. VERZOLA; EDUARDO AURELIO C. REYES; LEAN LOUEL A. [2] PERIA, Represented by His Father ELPIDIO V. PERIA; GREEN FORUM PHILIPPINES; GREEN FORUM WESTERN VISAYAS (GF-WV); ENVIRONMENTAL LEGAL ASSISTANCE CENTER (ELAC); KAISAHAN TUNGO SA KAUNLARAN [3] NG KANAYUNAN AT REPORMANG PANSAKAHAN (KAISAHAN); PARTNERSHIP FOR AGRARIAN REFORM and RURAL DEVELOPMENT SERVICES, INC. (PARRDS); PHILIPPINE PARTNERSHIP FOR THE
DEVELOPMENT OF HUMAN RESOURCES IN THE RURAL AREAS, INC. (PHILDHRRA); WOMENS LEGAL BUREAU (WLB); CENTER FOR ALTERNATIVE DEVELOPMENT INITIATIVES, INC. (CADI); UPLAND DEVELOPMENT INSTITUTE (UDI); KINAIYAHAN FOUNDATION, INC.; SENTRO NG ALTERNATIBONG LINGAP PANLIGAL (SALIGAN); and LEGAL RIGHTS AND NATURAL RESOURCES CENTER, INC. (LRC), petitioners, vs. VICTOR O. RAMOS, Secretary, Department of Environment and Natural Resources (DENR); HORACIO RAMOS, Director, Mines and Geosciences Bureau (MGB-DENR); [4] RUBEN TORRES, Executive Secretary; and WMC (PHILIPPINES), INC., respondents . RESOLUTION
PANGANIBAN, J.:
All mineral resources are owned by the State. Their exploration, development and utilization (EDU) must always be subject to the full control and supervision of the State. More specifically, given the inadequacy of Filipino capital and technology in large-scale EDU activities, the State may secure the help of foreign companies in all relevant matters -- especially financial and technical assistance -- provided that, at all times, the State maintains its right of full control. The foreign assistor or contractor assumes all financial, technical and entrepreneurial risks in the EDU activities; hence, it may be given reasonable management, operational, marketing, audit and other prerogatives to protect its investments and to enable the business to succeed. Full control is not anathematic to day-to-day management by the contractor, provided that the State retains the power to direct overall strategy; and to set aside, reverse or modify plans and actions of the contractor. The idea of full control is similar to that which is exercised by the board of directors of a private corporation: the performance of managerial, operational, financial, marketing and other functions may be delegated to subordinate officers or given to contractual entities, but the board retains full residual control of the business. Who or what organ of government actually exercises this power of control on behalf of the State? The Constitution is crystal clear: the President. Indeed, the Chief Executive is the official constitutionally mandated to enter into agreements with foreign owned corporations. On the other hand, Congress may review the action of the President once it is notified of every contract entered into in accordance with this [constitutional] provision within thirty days from its execution. In contrast to this express mandate of the President and Congress in the EDU of natural resources, Article XII of the Constitution is silent on the role of the judiciary. However, should the President and/or Congress gravely abuse their discretion in this regard, the courts may -- in a proper case -- exercise their residual duty under Article VIII. Clearly then, the judiciary should not inordinately interfere in the exercise of this presidential power of control over the EDU of our natural resources. The Constitution should be read in broad, life-giving strokes. It should not be used to strangulate economic growth or to serve narrow, parochial interests. Rather, it should be construed to grant the President and Congress sufficient discretion and reasonable leeway to enable them to attract foreign investments and expertise, as well as to secure for our people and our posterity the blessings of prosperity and peace. On the basis of this control standard, this Court upholds the constitutionality of the Philippine Mining Law, its Implementing Rules and Regulations -- insofar as they relate to financial and technical agreements [5]
- as well as the subject Financial and Technical Assistance Agreement (FTAA).
Background The Petition for Prohibition and Mandamus before the Court challenges the constitutionality of (1) Republic Act No. [RA] 7942 (The Philippine Mining Act of 1995); (2) its Implementing Rules and Regulations [6] (DENR Administrative Order No. [DAO] 96-40); and (3) the FTAA dated March 30, 1995, executed by the [7] government with Western Mining Corporation (Philippines), Inc. (WMCP). [8] On January 27, 2004, the Court en banc promulgated its Decision granting the Petition and declaring the unconstitutionality of certain provisions of RA 7942, DAO 96-40, as well as of the entire FTAA executed between the government and WMCP, mainly on the finding that FTAAs are service contracts prohibited by the 1987 Constitution. [9] The Decision struck down the subject FTAA for being similar to service contracts, which, though [10] permitted under the 1973 Constitution, were subsequently denounced for being antithetical to the principle of sovereignty over our natural resources, because they allowed foreign control over the exploitation of our natural resources, to the prejudice of the Filipino nation. The Decision quoted several legal scholars and authors who had criticized service contracts for, inter alia, vesting in the foreign contractor exclusive management and control of the enterprise, including operation of the field in the event petroleum was discovered; control of production, expansion and development; nearly unfettered control over the disposition and sale of the products discovered/extracted; effective ownership of the natural resource at the point of extraction; and beneficial ownership of our economic resources. According to the Decision, the 1987 Constitution (Section 2 of Article XII) effectively banned such service contracts. Subsequently, respondents filed separate Motions for Reconsideration. In a Resolution dated March 9, 2004, the Court required petitioners to comment thereon. In the Resolution of June 8, 2004, it set the case for Oral Argument on June 29, 2004. After hearing the opposing sides, the Court required the parties to submit their respective Memoranda in amplification of their arguments. In a Resolution issued later the same day, June 29, 2004, the Court noted, inter alia, the Manifestation and Motion (in lieu of comment) filed by the Office of the Solicitor General (OSG) on behalf of public respondents. The OSG said that it was not interposing any objection to the Motion for Intervention filed by the Chamber of Mines of the Philippines, Inc. (CMP) and was in fact joining and adopting the latters Motion for Reconsideration. Memoranda were accordingly filed by the intervenor as well as by petitioners, public respondents, and private respondent, dwelling at length on the three issues discussed below. Later, WMCP submitted its Reply Memorandum, while the OSG -- in obedience to an Order of this Court -- filed a Compliance submitting copies of more FTAAs entered into by the government.
Three Issues Identified by the Court During the Oral Argument, the Court identified the three issues to be resolved in the present controversy, as follows:
1. Has the case been rendered moot by the sale of WMC shares in WMCP to Sagittarius (60 percent of Sagittarius equity is owned by Filipinos and/or Filipino-owned corporations while 40 percent is owned by Indophil Resources NL, an Australian company) and by the subsequent transfer and registration of the FTAA from WMCP to Sagittarius? 2. Assuming that the case has been rendered moot, would it still be proper to resolve the constitutionality of the assailed provisions of the Mining Law, DAO 96-40 and the WMCP FTAA? 3. What is the proper interpretation of the phrase Agreements Involving Either Technical or Financial Assistance contained in paragraph 4 of Section 2 of Article XII of the Constitution? Should the Motion for Reconsideration Be Granted? Respondents and intervenors Motions for Reconsideration should be granted, for the reasons discussed below. The foregoing three issues identified by the Court shall now be taken up seriatim. First Issue: Mootness In declaring unconstitutional certain provisions of RA 7942, DAO 96-40, and the WMCP FTAA, the majority Decision agreed with petitioners contention that the subject FTAA had been executed in violation of Section 2 of Article XII of the 1987 Constitution. According to petitioners, the FTAAs entered into by the government with foreign-owned corporations are limited by the fourth paragraph of the said provision to agreements involving only technical or financial assistance for large-scale exploration, development and utilization of minerals, petroleum and other mineral oils. Furthermore, the foreign contractor is allegedly permitted by the FTAA in question to fully manage and control the mining operations and, therefore, to acquire beneficial ownership of our mineral resources. The Decision merely shrugged off the Manifestation by WMPC informing the Court (1) that on January 23, 2001, WMC had sold all its shares in WMCP to Sagittarius Mines, Inc., 60 percent of whose equity was held by Filipinos; and (2) that the assailed FTAA had likewise been transferred from WMCP to [11] Sagittarius. The ponencia declared that the instant case had not been rendered moot by the transfer and registration of the FTAA to a Filipino-owned corporation, and that the validity of the said transfer remained in [12] dispute and awaited final judicial determination. Patently therefore, the Decision is anchored on the assumption that WMCP had remained a foreign corporation. The crux of this issue of mootness is the fact that WMCP, at the time it entered into the FTAA, happened to be wholly owned by WMC Resources International Pty., Ltd. (WMC), which in turn was a wholly owned subsidiary of Western Mining Corporation Holdings Ltd., a publicly listed major Australian mining and exploration company. The nullity of the FTAA was obviously premised upon the contractor being a foreign corporation. Had the FTAA been originally issued to a Filipino-owned corporation, there would have been no constitutionality issue to speak of. Upon the other hand, the conveyance of the WMCP FTAA to a Filipino corporation can be likened to the sale of land to a foreigner who subsequently acquires Filipino citizenship, or who later resells the same land to a Filipino citizen. The conveyance would be validated, as the property in question would no longer be owned by a disqualified vendee. And, inasmuch as the FTAA is to be implemented now by a Filipino corporation, it is no longer possible for the Court to declare it unconstitutional. The case pending in the Court of Appeals is a dispute between two Filipino companies (Sagittarius and Lepanto), both claiming the right to purchase the foreign shares in WMCP. So, regardless of which side eventually wins, the FTAA would still be in the hands of a qualified Filipino company. Considering that there is no longer any justiciable controversy, the plea to nullify the Mining Law has become a virtual petition for declaratory relief, over which this Court has no original
jurisdiction. In their Final Memorandum, however, petitioners argue that the case has not become moot, considering the invalidity of the alleged sale of the shares in WMCP from WMC to Sagittarius, and of the transfer of the FTAA from WMCP to Sagittarius, resulting in the change of contractor in the FTAA in question. And even assuming that the said transfers were valid, there still exists an actual case predicated on the invalidity of RA 7942 and its Implementing Rules and Regulations (DAO 96-40). Presently, we shall discuss petitioners objections to the transfer of both the shares and the FTAA. We shall take up the alleged invalidity of RA 7942 and DAO 96-40 later on in the discussion of the third issue.
No Transgression of the Constitution by the Transfer of the WMCP Shares Petitioners claim, first, that the alleged invalidity of the transfer of the WMCP shares to Sagittarius violates the fourth paragraph of Section 2 of Article XII of the Constitution; second, that it is contrary to the provisions of the WMCP FTAA itself; and third, that the sale of the shares is suspect and should therefore be the subject of a case in which its validity may properly be litigated. On the first ground, petitioners assert that paragraph 4 of Section 2 of Article XII permits the government to enter into FTAAs only with foreign-owned corporations. Petitioners insist that the first paragraph of this constitutional provision limits the participation of Filipino corporations in the exploration, development and utilization of natural resources to only three species of contracts -- production sharing, co-production and joint venture -- to the exclusion of all other arrangements or variations thereof, and the WMCP FTAA may therefore not be validly assumed and implemented by Sagittarius. In short, petitioners claim that a Filipino corporation is not allowed by the Constitution to enter into an FTAA with the government. However, a textual analysis of the first paragraph of Section 2 of Article XII does not support petitioners argument. The pertinent part of the said provision states: Sec. 2. x x x The exploration, development and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. x x x. Nowhere in the provision is there any express limitation or restriction insofar as arrangements other than the three aforementioned contractual schemes are concerned. Neither can one reasonably discern any implied stricture to that effect. Besides, there is no basis to believe that the framers of the Constitution, a majority of whom were obviously concerned with furthering the development and utilization of the countrys natural resources, could have wanted to restrict Filipino participation in that area. This point is clear, especially in the light of the overarching constitutional principle of giving preference and priority to Filipinos and Filipino corporations in the development of our natural resources. Besides, even assuming (purely for arguments sake) that a constitutional limitation barring Filipino corporations from holding and implementing an FTAA actually exists, nevertheless, such provision would apply only to the transfer of the FTAA to Sagittarius, but definitely not to the sale of WMCs equity stake in WMCP to Sagittarius. Otherwise, an unreasonable curtailment of property rights without due process of law would ensue. Petitioners argument must therefore fail.
FTAA Not Intended Solely for Foreign Corporation
Equally barren of merit is the second ground cited by petitioners -- that the FTAA was intended to apply solely to a foreign corporation, as can allegedly be seen from the provisions therein. They manage to cite only one WMCP FTAA provision that can be regarded as clearly intended to apply only to a foreign contractor: Section 12, which provides for international commercial arbitration under the auspices of the International Chamber of Commerce, after local remedies are exhausted. This provision, however, does not necessarily imply that the WMCP FTAA cannot be transferred to and assumed by a Filipino corporation like Sagittarius, in which event the said provision should simply be disregarded as a superfluity.
No Need for a Separate Litigation of the Sale of Shares Petitioners claim as third ground the suspicious sale of shares from WMC to Sagittarius; hence, the need to litigate it in a separate case. Section 40 of RA 7942 (the Mining Law) allegedly requires the Presidents prior approval of a transfer. A re-reading of the said provision, however, leads to a different conclusion. Sec. 40. Assignment/Transfer -- A financial or technical assistance agreement may be assigned or transferred, in whole or in part, to a qualified person subject to the prior approval of the President: Provided, That the President shall notify Congress of every financial or technical assistance agreement assigned or converted in accordance with this provision within thirty (30) days from the date of the approval thereof. Section 40 expressly applies to the assignment or transfer of the FTAA, not to the sale and transfer of shares of stock in WMCP. Moreover, when the transferee of an FTAA is another foreign corporation, there is a logical application of the requirement of prior approval by the President of the Republic and notification to Congress in the event of assignment or transfer of an FTAA. In this situation, such approval and notification are appropriate safeguards, considering that the new contractor is the subject of a foreign government. On the other hand, when the transferee of the FTAA happens to be a Filipino corporation, the need for such safeguard is not critical; hence, the lack of prior approval and notification may not be deemed fatal as to render the transfer invalid. Besides, it is not as if approval by the President is entirely absent in this [13] instance. As pointed out by private respondent in its Memorandum, the issue of approval is the subject of one of the cases brought by Lepanto against Sagittarius in GR No. 162331. That case involved the review of the Decision of the Court of Appeals dated November 21, 2003 in CA-GR SP No. 74161, which affirmed the DENR Order dated December 31, 2001 and the Decision of the Office of the President dated July 23, 2002, both approving the assignment of the WMCP FTAA to Sagittarius. Petitioners also question the sale price and the financial capacity of the transferee. According to the Deed of Absolute Sale dated January 23, 2001, executed between WMC and Sagittarius, the price of the WMCP shares was fixed at US$9,875,000, equivalent to P553 million at an exchange rate of 56:1. Sagittarius had an authorized capital stock of P250 million and a paid up capital of P60 million. Therefore, at the time of approval of the sale by the DENR, the debt-to-equity ratio of the transferee was over 9:1 -- hardly ideal for an FTAA contractor, according to petitioners. However, private respondents counter that the Deed of Sale specifically provides that the payment of the purchase price would take place only after Sagittarius commencement of commercial production from mining operations, if at all. Consequently, under the circumstances, we believe it would not be reasonable to conclude, as petitioners did, that the transferees high debt-to-equity ratio per se necessarily carried negative implications for the enterprise; and it would certainly be improper to invalidate the sale on that basis, as petitioners propose.
FTAA Not Void, Thus Transferrable To bolster further their claim that the case is not moot, petitioners insist that the FTAA is void and, hence cannot be transferred; and that its transfer does not operate to cure the constitutional infirmity that is inherent in it; neither will a change in the circumstances of one of the parties serve to ratify the void contract. While the discussion in their Final Memorandum was skimpy, petitioners in their Comment (on the MR) did ratiocinate that this Court had declared the FTAA to be void because, at the time it was executed with WMCP, the latter was a fully foreign-owned corporation, in which the former vested full control and management with respect to the exploration, development and utilization of mineral resources, contrary to the provisions of paragraph 4 of Section 2 of Article XII of the Constitution. And since the FTAA was per se void, no valid right could be transferred; neither could it be ratified, so petitioners conclude. Petitioners have assumed as fact that which has yet to be established. First and foremost, the Decision of this Court declaring the FTAA void has not yet become final. That was precisely the reason the Court still heard Oral Argument in this case. Second , the FTAA does not vest in the foreign corporation full control and supervision over the exploration, development and utilization of mineral resources, to the exclusion of the government. This point will be dealt with in greater detail below; but for now, suffice it to say that a perusal of the FTAA provisions will prove that the government has effective overall direction and control of the mining operations, including marketing and product pricing, and that the contractors work programs and budgets are subject to its review and approval or disapproval. As will be detailed later on, the government does not have to micro-manage the mining operations and dip its hands into the day-to-day management of the enterprise in order to be considered as having overall control and direction. Besides, for practical and pragmatic reasons, there is a need for government agencies to delegate certain aspects of the management work to the contractor. Thus the basis for declaring the FTAA void still has to be revisited, reexamined and reconsidered. [14] [15] Petitioners sniff at the citation of Chavez v. Public Estates Authority , and Halili v. CA , claiming that the doctrines in these cases are wholly inapplicable to the instant case. Chavez clearly teaches: Thus, the Court has ruled consistently that where a Filipino citizen sells land to an alien who later sells the land to a Filipino, the invalidity of the first transfer is corrected by the subsequent sale to a citizen. Similarly, where the alien who buys the land subsequently acquires Philippine citizenship, the sale is validated since the purpose of the constitutional ban to limit land ownership to Filipinos has been achieved. In short, the law disregards the constitutional disqualification of the buyer to hold land if the land is [16] subsequently transferred to a qualified party, or the buyer himself becomes a qualified party. In their Comment, petitioners contend that in Chavez and Halili, the object of the transfer (the land) was not what was assailed for alleged unconstitutionality. Rather, it was the transaction that was assailed; hence subsequent compliance with constitutional provisions would cure its infirmity. In contrast, in the instant case it is the FTAA itself, the object of the transfer, that is being assailed as invalid and unconstitutional. So, petitioners claim that the subsequent transfer of a void FTAA to a Filipino corporation would not cure the defect. Petitioners are confusing themselves. The present Petition has been filed, precisely because the grantee of the FTAA was a wholly owned subsidiary of a foreign corporation. It cannot be gainsaid that anyone would have asserted that the same FTAA was void if it had at the outset been issued to a Filipino corporation. The FTAA, therefore, is not per se defective or unconstitutional. It was questioned only because it had been issued to an allegedly non-qualified, foreign-owned corporation. We believe that this case is clearly analogous to Halili, in which the land acquired by a non-Filipino was
re-conveyed to a qualified vendee and the original transaction was thereby cured. Paraphrasing Halili, the same rationale applies to the instant case: assuming arguendo the invalidity of its prior grant to a foreign corporation, the disputed FTAA -- being now held by a Filipino corporation -- can no longer be assailed; the objective of the constitutional provision -- to keep the exploration, development and utilization of our natural resources in Filipino hands -- has been served. More accurately speaking, the present situation is one degree better than that obtaining in Halili, in which the original sale to a non-Filipino was clearly and indisputably violative of the constitutional prohibition and thus void ab initio. In the present case, the issuance/grant of the subject FTAA to the then foreign-owned WMCP was not illegal, void or unconstitutional at the time. The matter had to be brought to court, precisely for adjudication as to whether the FTAA and the Mining Law had indeed violated the Constitution. Since, up to this point, the decision of this Court declaring the FTAA void has yet to become final, to all intents and [17] purposes, the FTAA must be deemed valid and constitutional. At bottom, we find completely outlandish petitioners contention that an FTAA could be entered into by the government only with a foreign corporation, never with a Filipino enterprise . Indeed, the nationalistic provisions of the Constitution are all anchored on the protection of Filipino interests. How petitioners can now argue that foreigners have the exclusive right to FTAAs totally overturns the entire basis of the Petition - preference for the Filipino in the exploration, development and utilization of our natural resources. It does not take deep knowledge of law and logic to understand that what the Constitution grants to foreigners should be equally available to Filipinos.
Second Issue: Whether the Court Can Still Decide the Case, Even Assuming It Is Moot All the protagonists are in agreement that the Court has jurisdiction to decide this controversy, even assuming it to be moot. Petitioners stress the following points. First , while a case becomes moot and academic when there is no more actual controversy between the parties or no useful purpose can be served in passing upon the [18] merits, what is at issue in the instant case is not only the validity of the WMCP FTAA, but also the constitutionality of RA 7942 and its Implementing Rules and Regulations. Second, the acts of private respondent cannot operate to cure the law of its alleged unconstitutionality or to divest this Court of its jurisdiction to decide. Third, the Constitution imposes upon the Supreme Court the duty to declare invalid any law that offends the Constitution. Petitioners also argue that no amendatory laws have been passed to make the Mining Act of 1995 conform to constitutional strictures (assuming that, at present, it does not); that public respondents will continue to implement and enforce the statute until this Court rules otherwise; and that the said law continues to be the source of legal authority in accepting, processing and approving numerous applications for mining rights. Indeed, it appears that as of June 30, 2002, some 43 FTAA applications had been filed with the Mines and Geosciences Bureau (MGB), with an aggregate area of 2,064,908.65 hectares -- spread over Luzon, the [19] Visayas and Mindanao -- applied for. It may be a bit far-fetched to assert, as petitioners do, that each and every FTAA that was entered into under the provisions of the Mining Act invites potential litigation for as long as the constitutional issues are not resolved with finality. Nevertheless, we must concede that there exists the distinct possibility that one or more of the future FTAAs will be the subject of yet another suit grounded on constitutional issues.
But of equal if not greater significance is the cloud of uncertainty hanging over the mining industry, which is even now scaring away foreign investments. Attesting to this climate of anxiety is the fact that the Chamber of Mines of the Philippines saw the urgent need to intervene in the case and to present its position during the Oral Argument; and that Secretary General Romulo Neri of the National Economic Development Authority (NEDA) requested this Court to allow him to speak, during that Oral Argument, on the economic [20] consequences of the Decision of January 27, 2004. We are convinced. We now agree that the Court must recognize the exceptional character of the situation and the paramount public interest involved, as well as the necessity for a ruling to put an end to the uncertainties plaguing the mining industry and the affected communities as a result of doubts cast upon the constitutionality and validity of the Mining Act, the subject FTAA and future FTAAs, and the need to avert a [21] multiplicity of suits. Paraphrasing Gonzales v. Commission on Elections, it is evident that strong reasons [22] of public policy demand that the constitutionality issue be resolved now. In further support of the immediate resolution of the constitutionality issue, public respondents cite Acop [23] v. Guingona, to the effect that the courts will decide a question -- otherwise moot and academic -- if it is [24] capable of repetition, yet evading review. Public respondents ask the Court to avoid a situation in which the constitutionality issue may again arise with respect to another FTAA, the resolution of which may not be achieved until after it has become too late for our mining industry to grow out of its infancy. They also recall [25] Salonga v. Cruz Pao, in which this Court declared that (t)he Court also has the duty to formulate guiding and controlling constitutional principles, precepts, doctrines or rules. It has the symbolic function of educating the bench and bar on the extent of protection given by constitutional guarantees. x x x. The mootness of the case in relation to the WMCP FTAA led the undersigned ponente to state in his dissent to the Decision that there was no more justiciable controversy and the plea to nullify the Mining Law [26] has become a virtual petition for declaratory relief. The entry of the Chamber of Mines of the Philippines, Inc., however, has put into focus the seriousness of the allegations of unconstitutionality of RA 7942 and [27] DAO 96-40 which converts the case to one for prohibition in the enforcement of the said law and regulations. Indeed, this CMP entry brings to fore that the real issue in this case is whether paragraph 4 of Section 2 of Article XII of the Constitution is contravened by RA 7942 and DAO 96-40, not whether it was violated by specific acts implementing RA 7942 and DAO 96-40. [W]hen an act of the legislative department is seriously alleged to have infringed the Constitution, settling the controversy becomes the duty of this Court. By the mere enactment of the questioned law or the approval of the challenged action, the dispute is said to [28] have ripened into a judicial controversy even without any other overt act. This ruling can be traced from [29] Taada v. Angara, in which the Court said: In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the petition no doubt raises a justiciable controversy. Where an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. x x x x x x x x x As this Court has repeatedly and firmly emphasized in many cases, it will not shirk, digress from or abandon its sacred duty and authority to uphold the Constitution in matters that involve grave abuse of discretion brought before it in appropriate cases, committed by any officer, agency, instrumentality or department of the government.
[30]
Additionally, the entry of CMP into this case has also effectively forestalled any possible objections arising from the standing or legal interest of the original parties. For all the foregoing reasons, we believe that the Court should proceed to a resolution of the constitutional issues in this case.
Third Issue: The Proper Interpretation of the Constitutional Phrase Agreements Involving Either Technical or Financial Assistance The constitutional provision at the nucleus of the controversy is paragraph 4 of Section 2 of Article XII of the 1987 Constitution. In order to appreciate its context, Section 2 is reproduced in full: Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture or production-sharing agreements with Filipino citizens or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant. The State shall protect the nations marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens. The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fish-workers in rivers, lakes, bays and lagoons. The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources. The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution.
[31]
No Restriction of Meaning by a Verba Legis Interpretation To interpret the foregoing provision, petitioners adamantly assert that the language of the Constitution should prevail; that the primary method of interpreting it is to seek the ordinary meaning of the words used in its provisions. They rely on rulings of this Court, such as the following: The fundamental principle in constitutional construction however is that the primary source from which to ascertain constitutional intent or purpose is the language of the provision itself. The presumption is that the words in which the constitutional provisions are couched express the objective sought to be attained. In other words, verba legis prevails.
Only when the meaning of the words used is unclear and equivocal should resort be made to extraneous aids of construction and interpretation, such as the proceedings of the Constitutional Commission or Convention to shed light on and ascertain the true intent or purpose of the provision being construed. Very recently, in Francisco v. The House of Representatives, reiterate the well-settled principles of constitutional construction: [33]
[32]
this Court indeed had the occasion to
First, verba legis , that is, wherever possible, the words used in the Constitution must be given their ordinary meaning except where technical terms are employed. x x x. x x x x x x x x x Second, where there is ambiguity, ratio legis est anima . The words of the Constitution should be interpreted in accordance with the intent of its framers. x x x. x x x x x x x x x Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as a whole.
[34]
For ease of reference and in consonance with verba legis, we reconstruct and stratify the aforequoted Section 2 as follows: 1. All natural resources are owned by the State. Except for agricultural lands, natural resources cannot be alienated by the State. 2. The exploration, development and utilization (EDU) of natural resources shall be under the full control and supervision of the State. 3. The State may undertake these EDU activities through either of the following: (a) By itself directly and solely (b) By (i) co-production; (ii) joint venture; or (iii) production sharing agreements with Filipino citizens or corporations, at least 60 percent of the capital of which is owned by such citizens 4. Small-scale utilization of natural resources may be allowed by law in favor of Filipino citizens. 5. For large-scale EDU of minerals, petroleum and other mineral oils, the President may enter into agreements with foreign-owned corporations involving either technical or financial assistance according to the general terms and conditions provided by law x x x. Note that in all the three foregoing mining activities -- exploration, development and utilization -- the State may undertake such EDU activities by itself or in tandem with Filipinos or Filipino corporations, except in two instances: first, in small-scale utilization of natural resources, which Filipinos may be allowed by law to undertake; and second, in large-scale EDU of minerals, petroleum and mineral oils, which may be undertaken by the State via agreements with foreign-owned corporations involving either technical or financial assistance as provided by law. Petitioners claim that the phrase agreements x x x involving either technical or financial assistance simply means technical assistance or financial assistance agreements, nothing more and nothing else. They insist that there is no ambiguity in the phrase, and that a plain reading of paragraph 4 quoted above leads to the inescapable conclusion that what a foreign-owned corporation may enter into with the government is merely an agreement for either financial or technical assistance only , for the large-scale exploration,
development and utilization of minerals, petroleum and other mineral oils; such a limitation, they argue, [35] excludes foreign management and operation of a mining enterprise. This restrictive interpretation, petitioners believe, is in line with the general policy enunciated by the Constitution reserving to Filipino citizens and corporations the use and enjoyment of the countrys natural [36] resources. They maintain that this Courts Decision of January 27, 2004 correctly declared the WMCP FTAA, along with pertinent provisions of RA 7942, void for allowing a foreign contractor to have direct and exclusive management of a mining enterprise. Allowing such a privilege not only runs counter to the full control and supervision that the State is constitutionally mandated to exercise over the exploration, development and utilization of the countrys natural resources; doing so also vests in the foreign company beneficial ownership of our mineral resources. It will be recalled that the Decision of January 27, 2004 zeroed in on management or other forms of assistance or other activities associated with the service contracts of the martial law regime, since the management or operation of mining activities by foreign contractors, which is the primary feature of service contracts, was precisely the evil that the drafters of the 1987 Constitution sought to eradicate. [37] On the other hand, the intervenor and public respondents argue that the FTAA allowed by paragraph 4 is not merely an agreement for supplying limited and specific financial or technical services to the State. Rather, such FTAA is a comprehensive agreement for the foreign-owned corporations integrated exploration, development and utilization of mineral, petroleum or other mineral oils on a large-scale basis. The agreement, therefore, authorizes the foreign contractors rendition of a whole range of integrated and comprehensive services, ranging from the discovery to the development, utilization and production of minerals or petroleum products. We do not see how applying a strictly literal or verba legis interpretation of paragraph 4 could inexorably lead to the conclusions arrived at in the ponencia. First , the drafters choice of words -- their use of the phrase agreements x x x involving either technical or financial assistance -- does not indicate the intent to exclude other modes of assistance. The drafters opted to use involving when they could have simply said agreements for financial or technical assistance, if that was their intention to begin with. In this case, the limitation would be very clear and no further debate would ensue. In contrast, the use of the word involving signifies the possibility of the inclusion of other forms of assistance or activities having to do with, otherwise related to or compatible with financial or technical assistance. The word involving as used in this context has three connotations that can be differentiated thus: one, the sense of concerning, having to do with, or affecting; two, entailing, requiring, implying [38] or necessitating; and three , including, containing or comprising. Plainly, none of the three connotations convey a sense of exclusivity. Moreover, the word involving, when understood in the sense of including, as in including technical or financial assistance, necessarily implies that there are activities other than those that are being included. In other words, if an agreement includes technical or financial assistance, there is apart from such assistance -- something else already in, and covered or may be covered by, the said agreement. In short, it allows for the possibility that matters, other than those explicitly mentioned, could be made part of the agreement. Thus, we are now led to the conclusion that the use of the word involving implies that these agreements with foreign corporations are not limited to mere financial or technical assistance. The difference in sense becomes very apparent when we juxtapose agreements for technical or financial assistance against agreements including technical or financial assistance. This much is unalterably clear in a verba legis approach. Second , if the real intention of the drafters was to confine foreign corporations to financial or technical assistance and nothing more, their language would have certainly been so unmistakably restrictive and
stringent as to leave no doubt in anyones mind about their true intent. For example, they would have used the sentence foreign corporations are absolutely prohibited from involvement in the management or operation of mining or similar ventures or words of similar import. A search for such stringent wording yields negative results. Thus, we come to the inevitable conclusion that there was a conscious and deliberate decision to avoid the use of restrictive wording that bespeaks an intent not to use the expression agreements x x x involving either technical or financial assistance in an exclusionary and limiting manner.
Deletion of Service Contracts to Avoid Pitfalls of Previous Constitutions, Not to Ban Service Contracts Per Se Third, we do not see how a verba legis approach leads to the conclusion that the management or operation of mining activities by foreign contractors, which is the primary feature of service contracts, was precisely the evil that the drafters of the 1987 Constitution sought to eradicate. Nowhere in the abovequoted Section can be discerned the objective to keep out of foreign hands the management or operation of mining activities or the plan to eradicate service contracts as these were understood in the 1973 Constitution. Still, petitioners maintain that the deletion or omission from the 1987 Constitution of the term service contracts found in the 1973 Constitution sufficiently proves the drafters intent to exclude foreigners from the management of the affected enterprises. To our mind, however, such intent cannot be definitively and conclusively established from the mere failure to carry the same expression or term over to the new Constitution, absent a more specific, explicit and unequivocal statement to that effect. What petitioners seek (a complete ban on foreign participation in the management of mining operations, as previously allowed by the earlier Constitutions) is nothing short of bringing about a momentous sea change in the economic and developmental policies; and the fundamentally capitalist, free-enterprise philosophy of our government. We cannot imagine such a radical shift being undertaken by our government, to the great prejudice of the mining sector in particular and our economy in general, merely on the basis of the omission of the terms service contract from or the failure to carry them over to the new Constitution. There has to be a much more definite and even unarguable basis for such a drastic reversal of policies. Fourth, a literal and restrictive interpretation of paragraph 4, such as that proposed by petitioners, suffers from certain internal logical inconsistencies that generate ambiguities in the understanding of the provision. As the intervenor pointed out, there has never been any constitutional or statutory provision that reserved to Filipino citizens or corporations, at least 60 percent of which is Filipino-owned, the rendition of financial or technical assistance to companies engaged in mining or the development of any other natural resource. The taking out of foreign-currency or peso-denominated loans or any other kind of financial assistance, as well as the rendition of technical assistance -- whether to the State or to any other entity in the Philippines -- has never been restricted in favor of Filipino citizens or corporations having a certain minimum percentage of Filipino equity. Such a restriction would certainly be preposterous and unnecessary. As a matter of fact, financial, and even technical assistance, regardless of the nationality of its source, would be welcomed in the mining industry anytime with open arms, on account of the dearth of local capital and the need to continually update technological know-how and improve technical skills. There was therefore no need for a constitutional provision specifically allowing foreign-owned corporations to render financial or technical assistance, whether in respect of mining or some other resource development or commercial activity in the Philippines. The last point needs to be emphasized: if merely financial or technical assistance agreements are allowed, there would be no need to limit them to large-scale mining operations, as there would be far greater need for them in the smaller-scale mining activities (and even in non-mining areas). Obviously, the provision in question was intended
to refer to agreements other than those for mere financial or technical assistance. In like manner, there would be no need to require the President of the Republic to report to Congress, if only financial or technical assistance agreements are involved. Such agreements are in the nature of foreign [39] loans that -- pursuant to Section 20 of Article VII of the 1987 Constitution -- the President may contract or guarantee, merely with the prior concurrence of the Monetary Board. In turn, the Board is required to report to Congress within thirty days from the end of every quarter of the calendar year, not thirty days after the agreement is entered into. And if paragraph 4 permits only agreements for loans and other forms of financial, or technical assistance, what is the point of requiring that they be based on real contributions to the economic growth and general welfare of the country ? For instance, how is one to measure and assess the real contributions to the economic growth and general welfare of the country that may ensue from a foreign-currency loan agreement or a technical-assistance agreement for, say, the refurbishing of an existing power generating plant for a mining operation somewhere in Mindanao? Such a criterion would make more sense when applied to a major business investment in a principal sector of the industry. The conclusion is clear and inescapable -- a verba legis construction shows that paragraph 4 is not to be understood as one limited only to foreign loans (or other forms of financial support) and to technical assistance. There is definitely more to it than that. These are provisions permitting participation by foreign companies; requiring the Presidents report to Congress; and using, as yardstick, contributions based on economic growth and general welfare. These were neither accidentally inserted into the Constitution nor carelessly cobbled together by the drafters in lip service to shallow nationalism. The provisions patently have significance and usefulness in a context that allows agreements with foreign companies to include more than mere financial or technical assistance. Fifth , it is argued that Section 2 of Article XII authorizes nothing more than a rendition of specific and limited financial service or technical assistance by a foreign company. This argument begs the question To whom or for whom would it be rendered? or Who is being assisted? If the answer is The State, then it necessarily implies that the State itself is the one directly and solely undertaking the large-scale exploration, development and utilization of a mineral resource, so it follows that the State must itself bear the liability and cost of repaying the financing sourced from the foreign lender and/or of paying compensation to the foreign entity rendering technical assistance. However, it is of common knowledge, and of judicial notice as well, that the government is and has for many many years been financially strapped, to the point that even the most essential services have suffered serious curtailments -- education and health care, for instance, not to mention judicial services -- have had to make do with inadequate budgetary allocations. Thus, government has had to resort to build-operatetransfer and similar arrangements with the private sector, in order to get vital infrastructure projects built without any governmental outlay. The very recent brouhaha over the gargantuan fiscal crisis or budget deficit merely confirms what the ordinary citizen has suspected all along. After the reality check, one will have to admit the implausibility of a direct undertaking -- by the State itself -- of large-scale exploration, development and utilization of minerals, petroleum and other mineral oils. Such an undertaking entails not only humongous capital requirements, but also the attendant risk of never finding and developing economically viable quantities of minerals, petroleum [40] and other mineral oils. It is equally difficult to imagine that such a provision restricting foreign companies to the rendition of only financial or technical assistance to the government was deliberately crafted by the drafters of the Constitution, who were all well aware of the capital-intensive and technology-oriented nature of large-scale [41] mineral or petroleum extraction and the countrys deficiency in precisely those areas. To say so would be tantamount to asserting that the provision was purposely designed to ladle the large-scale development and
utilization of mineral, petroleum and related resources with impossible conditions; and to remain forever and permanently reserved for future generations of Filipinos.
A More Reasonable Look at the Charters Plain Language Sixth, we shall now look closer at the plain language of the Charter and examining the logical inferences. The drafters chose to emphasize and highlight agreements x x x involving either technical or financial assistance in relation to foreign corporations participation in large-scale EDU. The inclusion of this clause on technical or financial assistance recognizes the fact that foreign business entities and multinational corporations are the ones with the resources and know-how to provide technical and/or financial assistance of the magnitude and type required for large-scale exploration, development and utilization of these resources. The drafters -- whose ranks included many academicians, economists, businessmen, lawyers, politicians and government officials -- were not unfamiliar with the practices of foreign corporations and multinationals. Neither were they so nave as to believe that these entities would provide assistance without conditionalities or some quid pro quo. Definitely, as business persons well know and as a matter of judicial notice, this matter is not just a question of signing a promissory note or executing a technology transfer agreement. Foreign corporations usually require that they be given a say in the management, for instance, of day-to-day operations of the joint venture. They would demand the appointment of their own men as, for example, operations managers, technical experts, quality control heads, internal auditors or comptrollers. Furthermore, they would probably require seats on the Board of Directors -- all these to ensure the success of the enterprise and the repayment of the loans and other financial assistance and to make certain that the funding and the technology they supply would not go to waste. Ultimately, they would also want to protect [42] their business reputation and bottom lines. In short, the drafters will have to be credited with enough pragmatism and savvy to know that these foreign entities will not enter into such agreements involving assistance without requiring arrangements for the protection of their investments, gains and benefits. Thus, by specifying such agreements involving assistance, the drafters necessarily gave implied assent to everything that these agreements necessarily entailed; or that could reasonably be deemed necessary to make them tenable and effective, including management authority with respect to the day-to-day operations of the enterprise and measures for the protection of the interests of the foreign corporation, PROVIDED THAT Philippine sovereignty over natural resources and full control over the enterprise undertaking the EDU activities remain firmly in the State.
Petitioners Theory Deflated by the Absence of Closing-Out Rules or Guidelines Seventh and final point regarding the plain-language approach, one of the practical difficulties that results from it is the fact that there is nothing by way of transitory provisions that would serve to confirm the theory that the omission of the term service contract from the 1987 Constitution signaled the demise of service contracts. The framers knew at the time they were deliberating that there were various service contracts extant and in force and effect, including those in the petroleum industry. Many of these service contracts were longterm (25 years) and had several more years to run. If they had meant to ban service contracts altogether,
they would have had to provide for the termination or pretermination of the existing contracts. Accordingly, they would have supplied the specifics and the when and how of effecting the extinguishment of these existing contracts (or at least the mechanics for determining them); and of putting in place the means to address the just claims of the contractors for compensation for their investments, lost opportunities, and so on, if not for the recovery thereof. If the framers had intended to put an end to service contracts, they would have at least left specific instructions to Congress to deal with these closing-out issues, perhaps by way of general guidelines and a timeline within which to carry them out. The following are some extant examples of such transitory guidelines set forth in Article XVIII of our Constitution: Section 23. Advertising entities affected by paragraph (2), Section 11 of Article XVI of this Constitution shall have five years from its ratification to comply on a graduated and proportionate basis with the minimum Filipino ownership requirement therein. x x x x x x x x x Section 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning military bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State. Section 26. The authority to issue sequestration or freeze orders under Proclamation No. 3 dated March 25, 1986 in relation to the recovery of ill-gotten wealth shall remain operative for not more than eighteen months after the ratification of this Constitution. However, in the national interest, as certified by the President, the Congress may extend such period. A sequestration or freeze order shall be issued only upon showing of a prima facie case. The order and the list of the sequestered or frozen properties shall forthwith be registered with the proper court. For orders issued before the ratification of this Constitution, the corresponding judicial action or proceeding shall be filed within six months from its ratification. For those issued after such ratification, the judicial action or proceeding shall be commenced within six months from the issuance thereof. The sequestration or freeze order is deemed automatically lifted if no judicial action or proceeding is commenced as herein provided.
[43]
It is inconceivable that the drafters of the Constitution would leave such an important matter -- an expression of sovereignty as it were -- indefinitely hanging in the air in a formless and ineffective state. Indeed, the complete absence of even a general framework only serves to further deflate petitioners theory, like a childs balloon losing its air. Under the circumstances, the logical inconsistencies resulting from petitioners literal and purely verba legis approach to paragraph 4 of Section 2 of Article XII compel a resort to other aids to interpretation.
Petitioners Posture Also Negated by Ratio Legis Et Anima Thus, in order to resolve the inconsistencies, incongruities and ambiguities encountered and to supply the deficiencies of the plain-language approach, there is a need for recourse to the proceedings of the 1986 Constitutional Commission. There is a need for ratio legis et anima.
Service Contracts Not Deconstitutionalized Pertinent portions of the deliberations of the members of the Constitutional Commission (ConCom) conclusively show that they discussed agreements involving either technical or financial assistance in the same breadth as service contracts and used the terms interchangeably. The following exchange between Commissioner Jamir (sponsor of the provision) and Commissioner Suarez irrefutably proves that the agreements involving technical or financial assistance were none other than service contracts.
THE PRESIDENT. Commissioner Jamir is recognized. We are still on Section 3. MR. JAMIR. Yes, Madam President. With respect to the second paragraph of Section 3, my amendment by substitution reads: THE PRESIDENT MAY ENTER INTO AGREEMENTS WITH FOREIGN-OWNED CORPORATIONS INVOLVING EITHER TECHNICAL OR FINANCIAL ASSISTANCE FOR LARGESCALE EXPLORATION, DEVELOPMENT AND UTILIZATION OF NATURAL RESOURCES ACCORDING TO THE TERMS AND CONDITIONS PROVIDED BY LAW. MR. VILLEGAS. The Committee accepts the amendment. Commissioner Suarez will give the background. MR. JAMIR. Thank you. THE PRESIDENT. Commissioner Suarez is recognized. MR. SUAREZ. Thank you, Madam President. Will Commissioner Jamir answer a few clarificatory questions? MR. JAMIR. Yes, Madam President. MR. SUAREZ. This particular portion of the section has reference to what was popularly known before as service contracts , among other things, is that correct? MR. JAMIR. Yes, Madam President. MR. SUAREZ. As it is formulated, the President may enter into service contracts but subject to the guidelines that may be promulgated by Congress? MR. JAMIR. That is correct. MR. SUAREZ. Therefore, that aspect of negotiation and consummation will fall on the President, not upon Congress? MR. JAMIR. That is also correct, Madam President. MR. SUAREZ. Except that all of these contracts, service or otherwise , must be made strictly in accordance with guidelines prescribed by Congress? MR. JAMIR. That is also correct. MR. SUAREZ. And the Gentleman is thinking in terms of a law that uniformly covers situations of the same nature? MR. JAMIR. That is 100 percent correct. MR. SUAREZ. I thank the Commissioner. MR. JAMIR. Thank you very much. [44]
The following exchange leaves no doubt that the commissioners knew exactly what they were dealing with: service contracts.
THE PRESIDENT. Commissioner Gascon is recognized.
MR. GASCON. Commissioner Jamir had proposed an amendment with regard to special service contracts which was accepted by the Committee. Since the Committee has accepted it, I would like to ask some questions. THE PRESIDENT. Commissioner Gascon may proceed. MR. GASCON. As it is proposed now, such service contracts will be entered into by the President with the guidelines of a general law on service contract to be enacted by Congress. Is that correct? MR. VILLEGAS. The Commissioner is right, Madam President. MR. GASCON. According to the original proposal, if the President were to enter into a particular agreement, he would need the concurrence of Congress. Now that it has been changed by the proposal of Commissioner Jamir in that Congress will set the general law to which the President shall comply, the President will, therefore, not need the concurrence of Congress every time he enters into service contracts . Is that correct? MR. VILLEGAS. That is right. MR. GASCON. The proposed amendment of Commissioner Jamir is in indirect contrast to my proposed amendment, so I would like to object and present my proposed amendment to the body.
x x x x x x x x x
MR. GASCON. Yes, it will be up to the body. I feel that the general law to be set by Congress as regard service contract agreements which the President will enter into might be too general or since we do not know the content yet of such a law, it might be that certain agreements will be detrimental to the interest of the Filipinos. This is in direct contrast to my proposal which provides that there be effective constraints in the implementation of service contracts . So instead of a general law to be passed by Congress to serve as a guideline to the President when entering into service contract agreements , I propose that every service contract entered into by the President would need the concurrence of Congress, so as to assure the Filipinos of their interests with regard to the issue in Section 3 on all lands of the public domain. My alternative amendment, which we will discuss later, reads: THAT THE PRESIDENT SHALL ENTER INTO SUCH AGREEMENTS ONLY WITH THE CONCURRENCE OF TWO-THIRDS VOTE OF ALL THE MEMBERS OF CONGRESS SITTING SEPARATELY.
x x x x x x x x x
MR. BENGZON. The reason we made that shift is that we realized the original proposal could breed corruption. By the way, this is not just confined to service contracts but also to financial assistance. If we are going to make every single contract subject to the concurrence of Congress which, according to the Commissioners amendment is the concurrence of two-thirds of Congress voting separately then (1) there is a very great chance that each contract will be different from another; and (2) there is a great temptation that it would breed corruption because of the great lobbying that is going to happen. And we do not want to subject our legislature to that.
Now, to answer the Commissioners apprehension, by general law, we do not mean statements of motherhood. Congress can build all the restrictions that it wishes into that general law so that every contract entered into by the President under that specific area will have to be uniform. The President has no choice but to follow all the guidelines that will be provided by law.
MR. GASCON. But my basic problem is that we do not know as of yet the contents of such a general law as to how much constraints there will be in it. And to my mind, although the Committees contention that the regular concurrence from Congress would subject Congress to extensive lobbying, I think that
is a risk we will have to take since Congress is a body of representatives of the people whose membership will be changing regularly as there will be changing circumstances every time certain agreements are made. It would be best then to keep in tab and attuned to the interest of the Filipino people, whenever the President enters into any agreement with regard to such an important matter as technical or financial assistance for large-scale exploration, development and utilization of natural resources or service contracts , the peoples elected representatives should be on top of it.
x x x x x x x x x
MR. OPLE. Madam President, we do not need to suspend the session. If Commissioner Gascon needs a few minutes, I can fill up the remaining time while he completes his proposed amendment. I just wanted to ask Commissioner Jamir whether he would entertain a minor amendment to his amendment, and it reads as follows: THE PRESIDENT SHALL SUBSEQUENTLY NOTIFY CONGRESS OF EVERY SERVICE CONTRACT ENTERED INTO IN ACCORDANCE WITH THE GENERAL LAW. I think the reason is, if I may state it briefly, as Commissioner Bengzon said, Congress can always change the general law later on to conform to new perceptions of standards that should be built into service contracts . But the only way Congress can do this is if there were a notification requirement from the Office of the President that such service contracts had been entered into, subject then to the scrutiny of the Members of Congress. This pertains to a situation where the service contracts are already entered into, and all that this amendment seeks is the reporting requirement from the Office of the President. Will Commissioner Jamir entertain that? MR. JAMIR. I will gladly do so, if it is still within my power. MR. VILLEGAS. Yes, the Committee accepts the amendment.
x x x x x x x x x
SR. TAN. Madam President, may I ask a question? THE PRESIDENT. Commissioner Tan is recognized. SR. TAN. Am I correct in thinking that the only difference between these future service contracts and the past service contracts under Mr. Marcos is the general law to be enacted by the legislature and the notification of Congress by the President? That is the only difference, is it not? MR. VILLEGAS. That is right. SR. TAN. So those are the safeguards. MR. VILLEGAS. Yes. There was no law at all governing service contracts before. SR. TAN. Thank you, Madam President. [45]
More Than Mere Financial and Technical Assistance Entailed by the Agreements The clear words of Commissioner Jose N. Nolledo quoted below explicitly and eloquently demonstrate that the drafters knew that the agreements with foreign corporations were going to entail not mere technical or financial assistance but, rather, foreign investment in and management of an enterprise involved in largescale exploration , development and utilization of minerals, petroleum, and other mineral oils.
THE PRESIDENT. Commissioner Nolledo is recognized. MR. NOLLEDO. Madam President, I have the permission of the Acting Floor Leader to speak for only two
minutes in favor of the amendment of Commissioner Gascon. THE PRESIDENT. Commissioner Nolledo may proceed. MR. NOLLEDO. With due respect to the members of the Committee and Commissioner Jamir, I am in favor of the objection of Commissioner Gascon.
Madam President, I was one of those who refused to sign the 1973 Constitution, and one of the reasons is that there were many provisions in the Transitory Provisions therein that favored aliens. I was shocked when I read a provision authorizing service contracts while we, in this Constitutional Commission, provided for Filipino control of the economy. We are, therefore, providing for exceptional instances where aliens may circumvent Filipino control of our economy. And one way of circumventing the rule in favor of Filipino control of the economy is to recognize service contracts . As far as I am concerned, if I should have my own way, I am for the complete deletion of this provision. However, we are presenting a compromise in the sense that we are requiring a two-thirds vote of all the Members of Congress as a safeguard. I think we should not mistrust the future Members of Congress by saying that the purpose of this provision is to avoid corruption. We cannot claim that they are less patriotic than we are. I think the Members of this Commission should know that entering into service contracts is an exception to the rule on protection of natural resources for the interest of the nation, and therefore, being an exception it should be subject, whenever possible, to stringent rules. It seems to me that we are liberalizing the rules in favor of aliens. I say these things with a heavy heart, Madam President. I do not claim to be a nationalist, but I love my country. Although we need investments, we must adopt safeguards that are truly reflective of the sentiments of the people and not mere cosmetic safeguards as they now appear in the Jamir amendment. (Applause) Thank you, Madam President.
[46]
Another excerpt, featuring then Commissioner (now Chief Justice) Hilario G. Davide Jr., indicates the limitations of the scope of such service contracts -- they are valid only in regard to minerals, petroleum and other mineral oils, not to all natural resources.
THE PRESIDENT. Commissioner Davide is recognized. MR. DAVIDE. Thank you, Madam President. This is an amendment to the Jamir amendment and also to the Ople amendment. I propose to delete NATURAL RESOURCES and substitute it with the following: MINERALS, PETROLEUM AND OTHER MINERAL OILS. On the Ople amendment, I propose to add: THE NOTIFICATION TO CONGRESS SHALL BE WITHIN THIRTY DAYS FROM THE EXECUTION OF THE SERVICE CONTRACT. THE PRESIDENT. What does the Committee say with respect to the first amendment in lieu of NATURAL RESOURCES? MR. VILLEGAS. Could Commissioner Davide explain that? MR. DAVIDE. Madam President, with the use of NATURAL RESOURCES here, it would necessarily include all lands of the public domain, our marine resources, forests, parks and so on. So we would like to limit the scope of these service contracts to those areas really where these may be needed, the exploitation, development and exploration of minerals, petroleum and other mineral oils. And so, we believe that we should really, if we want to grant service contracts at all, limit the same to only those particular areas where Filipino capital may not be sufficient, and not to all natural resources. MR. SUAREZ. Just a point of clarification again, Madam President. When the Commissioner made those enumerations and specifications, I suppose he deliberately did not include agricultural land? MR. DAVIDE. That is precisely the reason we have to enumerate what these resources are into which service contracts may enter. So, beyond the reach of any service contract will be lands of the
public domain, timberlands, forests, marine resources, fauna and flora, wildlife and national parks.
[47]
After the Jamir amendment was voted upon and approved by a vote of 21 to 10 with 2 abstentions, Commissioner Davide made the following statement, which is very relevant to our quest:
THE PRESIDENT. Commissioner Davide is recognized. MR. DAVIDE. I am very glad that Commissioner Padilla emphasized minerals, petroleum and mineral oils. The Commission has just approved the possible foreign entry into the development, exploration and utilization of these minerals, petroleum and other mineral oils by virtue of the Jamir amendment. I voted in favor of the Jamir amendment because it will eventually give way to vesting in exclusively Filipino citizens and corporations wholly owned by Filipino citizens the right to utilize the other natural resources. This means that as a matter of policy, natural resources should be utilized and exploited only by Filipino citizens or corporations wholly owned by such citizens. But by virtue of the Jamir amendment, since we feel that Filipino capital may not be enough for the development and utilization of minerals, petroleum and other mineral oils, the President can enter into service contracts with foreign corporations precisely for the development and utilization of such resources. And so, there is nothing to fear that we will stagnate in the development of minerals, petroleum and mineral oils [48] because we now allow service contracts . x x x.
The foregoing are mere fragments of the framers lengthy discussions of the provision dealing with agreements x x x involving either technical or financial assistance, which ultimately became paragraph 4 of Section 2 of Article XII of the Constitution. Beyond any doubt, the members of the ConCom were actually debating about the martial-law-era service contracts for which they were crafting appropriate safeguards . In the voting that led to the approval of Article XII by the ConCom, the explanations given by Commissioners Gascon, Garcia and Tadeo indicated that they had voted to reject this provision on account of their objections to the constitutionalization of the service contract concept. Mr. Gascon said, I felt that if we would constitutionalize any provision on service contracts , this should always be with the concurrence of Congress and not guided only by a general law to be promulgated by [49] Congress. Mr. Garcia explained, Service contracts are given constitutional legitimization in Sec. 3, even when they have been proven to be inimical to the interests of the nation, providing, as they do, the legal [50] loophole for the exploitation of our natural resources for the benefit of foreign interests. Likewise, Mr. Tadeo cited inter alia the fact that service contracts continued to subsist, enabling foreign interests to benefit [51] from our natural resources. It was hardly likely that these gentlemen would have objected so strenuously, had the provision called for mere technical or financial assistance and nothing more. The deliberations of the ConCom and some commissioners explanation of their votes leave no room for doubt that the service contract concept precisely underpinned the commissioners understanding of the agreements involving either technical or financial assistance.
Summation of the Concom Deliberations At this point, we sum up the matters established, based on a careful reading of the ConCom deliberations, as follows: In their deliberations on what was to become paragraph 4, the framers used the term service contracts in referring to agreements x x x involving either technical or financial assistance.
They spoke of service contracts as the concept was understood in the 1973 Constitution.
It was obvious from their discussions that they were not about to ban or eradicate service contracts. Instead, they were plainly crafting provisions to put in place safeguards that would eliminate or minimize the abuses prevalent during the marital law regime. In brief, they were going to permit service contracts with foreign corporations as contractors, but with safety measures to prevent abuses, as an exception to the general norm established in the first paragraph of Section 2 of Article XII. This provision reserves or limits to Filipino citizens -- and corporations at least 60 percent of which is owned by such citizens -- the exploration, development and utilization of natural resources. This provision was prompted by the perceived insufficiency of Filipino capital and the felt need for foreign investments in the EDU of minerals and petroleum resources. The framers for the most part debated about the sort of safeguards that would be considered adequate and reasonable. But some of them, having more radical leanings, wanted to ban service contracts altogether; for them, the provision would permit aliens to exploit and benefit from the nations natural resources, which they felt should be reserved only for Filipinos. In the explanation of their votes, the individual commissioners were heard by the entire body. They sounded off their individual opinions, openly enunciated their philosophies, and supported or attacked the provisions with fervor. Everyones viewpoint was heard. In the final voting, the Article on the National Economy and Patrimony -- including paragraph 4 allowing service contracts with foreign corporations as an exception to the general norm in paragraph 1 of Section 2 of the same article -- was resoundingly approved by a vote of 32 to 7, with 2 abstentions.
Agreements Involving Technical or Financial Assistance Are Service Contracts With Safeguards From the foregoing, we are impelled to conclude that the phrase agreements involving either technical or financial assistance, referred to in paragraph 4, are in fact service contracts. But unlike those of the 1973 variety, the new ones are between foreign corporations acting as contractors on the one hand; and on the other, the government as principal or owner of the works. In the new service contracts, the foreign contractors provide capital, technology and technical know-how, and managerial expertise in the creation and operation of large-scale mining/extractive enterprises; and the government, through its agencies (DENR, MGB), actively exercises control and supervision over the entire operation. Such service contracts may be entered into only with respect to minerals, petroleum and other mineral oils . The grant thereof is subject to several safeguards, among which are these requirements: (1) The service contract shall be crafted in accordance with a general law that will set standard or uniform terms, conditions and requirements, presumably to attain a certain uniformity in provisions and avoid the possible insertion of terms disadvantageous to the country. (2) The President shall be the signatory for the government because, supposedly before an agreement is presented to the President for signature, it will have been vetted several times over at different levels to ensure that it conforms to law and can withstand public scrutiny.
(3) Within thirty days of the executed agreement, the President shall report it to Congress to give that branch of government an opportunity to look over the agreement and interpose timely objections, if any.
Use of the Record of the ConCom to Ascertain Intent At this juncture, we shall address, rather than gloss over, the use of the framers intent approach, and the criticism hurled by petitioners who quote a ruling of this Court: While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other guides fail as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear. Debates in the constitutional convention are of value as showing the views of the individual members, and as indicating the reason for their votes, but they give us no light as to the views of the large majority who did not talk, much less the mass of our fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer to construe the constitution from what appears upon its face. The proper interpretation therefore depends more on how it was understood by the people adopting it than in the framers understanding thereof.
[52]
The notion that the deliberations reflect only the views of those members who spoke out and not the views of the majority who remained silent should be clarified. We must never forget that those who spoke out were heard by those who remained silent and did not react. If the latter were silent because they happened not to be present at the time, they are presumed to have read the minutes and kept abreast of the deliberations. By remaining silent, they are deemed to have signified their assent to and/or conformity with at least some of the views propounded or their lack of objections thereto. It was incumbent upon them, as representatives of the entire Filipino people, to follow the deliberations closely and to speak their minds on the matter if they did not see eye to eye with the proponents of the draft provisions. In any event, each and every one of the commissioners had the opportunity to speak out and to vote on the matter. Moreover, the individual explanations of votes are on record, and they show where each delegate stood on the issues . In sum, we cannot completely denigrate the value or usefulness of the record of the ConCom, simply because certain members chose not to speak out. It is contended that the deliberations therein did not necessarily reflect the thinking of the voting population that participated in the referendum and ratified the Constitution. Verily, whether we like it or not, it is a bit too much to assume that every one of those who voted to ratify the proposed Charter did so only after carefully reading and mulling over it, provision by provision. Likewise, it appears rather extravagant to assume that every one of those who did in fact bother to read the draft Charter actually understood the import of its provisions, much less analyzed it vis--vis the previous Constitutions. We believe that in reality, a good percentage of those who voted in favor of it did so more out of faith and trust. For them, it was the product of the hard work and careful deliberation of a group of intelligent, dedicated and trustworthy men and women of integrity and conviction, whose love of country and fidelity to duty could not be questioned. In short, a large proportion of the voters voted yes because the drafters, or a majority of them, endorsed the proposed Constitution. What this fact translates to is the inescapable conclusion that many of the voters in the referendum did not form their own isolated judgment about the draft Charter, much less about particular provisions therein. They only relied or fell back and acted upon the favorable endorsement or recommendation of the framers as a group. In other words, by voting yes, they may be deemed to have signified their voluntary adoption of the understanding and interpretation of the delegates with respect to the proposed Charter and its particular provisions. If its good enough for them, its good enough for me; or, in many instances, If its good enough for President Cory Aquino, its good enough for me.
And even for those who voted based on their own individual assessment of the proposed Charter, there is no evidence available to indicate that their assessment or understanding of its provisions was in fact different from that of the drafters. This unwritten assumption seems to be petitioners as well. For all we know, this segment of voters must have read and understood the provisions of the Constitution in the same way the framers had, an assumption that would account for the favorable votes. Fundamentally speaking, in the process of rewriting the Charter, the members of the ConCom as a group were supposed to represent the entire Filipino people. Thus, we cannot but regard their views as being very much indicative of the thinking of the people with respect to the matters deliberated upon and to the Charter as a whole. It is therefore reasonable and unavoidable to make the following conclusion, based on the above arguments. As written by the framers and ratified and adopted by the people, the Constitution allows the continued use of service contracts with foreign corporations -- as contractors who would invest in and operate and manage extractive enterprises, subject to the full control and supervision of the State -- sans the abuses of the past regime. The purpose is clear: to develop and utilize our mineral, petroleum and other resources on a large scale for the immediate and tangible benefit of the Filipino people. In view of the foregoing discussion, we should reverse the Decision of January 27, 2004, and in fact now hold a view different from that of the Decision, which had these findings: (a) paragraph 4 of Section 2 of Article XII limits foreign involvement in the local mining industry to agreements strictly for either financial or technical assistance only; (b) the same paragraph precludes agreements that grant to foreign corporations the management of local mining operations, as such agreements are purportedly in the nature of service contracts as these were understood under the 1973 Constitution; (c) these service contracts were supposedly de-constitutionalized and proscribed by the omission of the term service contracts from the 1987 Constitution; (d) since the WMCP FTAA contains provisions permitting the foreign contractor to manage the concern, the said FTAA is invalid for being a prohibited service contract; and (e) provisions of RA 7942 and DAO 96-40, which likewise grant managerial authority to the foreign contractor, are also invalid and unconstitutional.
Ultimate Test: States Control Determinative of Constitutionality But we are not yet at the end of our quest. Far from it. It seems that we are confronted with a possible collision of constitutional provisions. On the one hand, paragraph 1 of Section 2 of Article XII explicitly mandates the State to exercise full control and supervision over the exploration, development and utilization of natural resources. On the other hand, paragraph 4 permits safeguarded service contracts with foreign contractors. Normally, pursuant thereto, the contractors exercise management prerogatives over the mining operations and the enterprise as a whole. There is thus a legitimate ground to be concerned that either the States full control and supervision may rule out any exercise of management authority by the foreign contractor; or, the other way around, allowing the foreign contractor full management prerogatives may ultimately negate the States full control and supervision.
Ut Magis Valeat Quam Pereat Under the third principle of constitutional construction laid down in Francisco -- ut magis valeat quam pereat -- every part of the Constitution is to be given effect, and the Constitution is to be read and
understood as a harmonious whole. Thus, full control and supervision by the State must be understood as one that does not preclude the legitimate exercise of management prerogatives by the foreign contractor. Before any further discussion, we must stress the primacy and supremacy of the principle of sovereignty and State control and supervision over all aspects of exploration, development and utilization of the countrys natural resources, as mandated in the first paragraph of Section 2 of Article XII. But in the next breadth we have to point out that full control and supervision cannot be taken literally to mean that the State controls and supervises everything involved, down to the minutest details , and makes all decisions required in the mining operations. This strained concept of control and supervision over the mining enterprise would render impossible the legitimate exercise by the contractors of a reasonable degree of management prerogative and authority necessary and indispensable to their proper functioning. For one thing, such an interpretation would discourage foreign entry into large-scale exploration, development and utilization activities; and result in the unmitigated stagnation of this sector, to the detriment of our nations development. This scenario renders paragraph 4 inoperative and useless. And as respondents have correctly pointed out, the government does not have to micro-manage the mining operations and dip its hands into the day-to-day affairs of the enterprise in order for it to be considered as having full control and supervision. The concept of control adopted in Section 2 of Article XII must be taken to mean less than dictatorial, all-encompassing control; but nevertheless sufficient to give the State the power to direct, restrain, regulate and govern the affairs of the extractive enterprises. Control by the State may be on a macro level, through the establishment of policies, guidelines, regulations, industry standards and similar measures that would enable the government to control the conduct of affairs in various enterprises and restrain activities deemed not desirable or beneficial. The end in view is ensuring that these enterprises contribute to the economic development and general welfare of the country, conserve the environment, and uplift the well-being of the affected local communities. Such a concept of control would be compatible with permitting the foreign contractor sufficient and reasonable management authority over the enterprise it invested in, in order to ensure that it is operating efficiently and profitably, to protect its investments and to enable it to succeed. The question to be answered, then, is whether RA 7942 and its Implementing Rules enable the government to exercise that degree of control sufficient to direct and regulate the conduct of affairs of individual enterprises and restrain undesirable activities. On the resolution of these questions will depend the validity and constitutionality of certain provisions of the Philippine Mining Act of 1995 (RA 7942) and its Implementing Rules and Regulations (DAO 96-40), as well as the WMCP FTAA. [54] Indeed, petitioners charge that RA 7942, as well as its Implementing Rules and Regulations, makes it possible for FTAA contracts to cede full control and management of mining enterprises over to fully foreignowned corporations, with the result that the State is allegedly reduced to a passive regulator dependent on submitted plans and reports, with weak review and audit powers. The State does not supposedly act as the owner of the natural resources for and on behalf of the Filipino people; it practically has little effective say in the decisions made by the enterprise. Petitioners then conclude that the law, the implementing regulations, and the WMCP FTAA cede beneficial ownership of the mineral resources to the foreign contractor. A careful scrutiny of the provisions of RA 7942 and its Implementing Rules belies petitioners claims. Paraphrasing the Constitution, Section 4 of the statute clearly affirms the States control thus: Sec. 4. Ownership of Mineral Resources. Mineral resources are owned by the State and the exploration, development, utilization and processing thereof shall be under its full control and supervision. The State may directly undertake such activities or it may enter into mineral agreements with contractors.
[53]
The State shall recognize and protect the rights of the indigenous cultural communities to their ancestral lands as provided for by the Constitution. The aforequoted provision is substantively reiterated in Section 2 of DAO 96-40 as follows: Sec. 2. Declaration of Policy. All mineral resources in public and private lands within the territory and exclusive economic zone of the Republic of the Philippines are owned by the State. It shall be the responsibility of the State to promote their rational exploration, development, utilization and conservation through the combined efforts of the Government and private sector in order to enhance national growth in a way that effectively safeguards the environment and protects the rights of affected communities.
Sufficient Control Over Mining Operations Vested in the State by RA 7942 and DAO 96-40 RA 7942 provides for the States control and supervision over mining operations. The following provisions thereof establish the mechanism of inspection and visitorial rights over mining operations and institute reportorial requirements in this manner: 1. Sec. 8 which provides for the DENRs power of over-all supervision and periodic review for the conservation, management, development and proper use of the States mineral resources; 2. Sec. 9 which authorizes the Mines and Geosciences Bureau (MGB) under the DENR to exercise direct charge in the administration and disposition of mineral resources, and empowers the MGB to monitor the compliance by the contractor of the terms and conditions of the mineral agreements, confiscate surety and performance bonds, and deputize whenever necessary any member or unit of the Phil. National Police, barangay, duly registered non-governmental organization (NGO) or any qualified person to police mining activities; 3. Sec. 66 which vests in the Regional Director exclusive jurisdiction over safety inspections of all installations, whether surface or underground, utilized in mining operations. 4. Sec. 35, which incorporates into all FTAAs the following terms, conditions and warranties: (g) Mining operations shall be conducted in accordance with the provisions of the Act and its IRR. (h) Work programs and minimum expenditures commitments. x x x x x x x x x (k) Requiring proponent to effectively use appropriate anti-pollution technology and facilities to protect the environment and restore or rehabilitate mined-out areas. (l) The contractors shall furnish the Government records of geologic, accounting and other relevant data for its mining operation, and that books of accounts and records shall be open for inspection by the government. x x x. (m) Requiring the proponent to dispose of the minerals at the highest price and more advantageous terms and conditions. (n) x x x x x x x x x
(o) Such other terms and conditions consistent with the Constitution and with this Act as the Secretary may deem to be for the best interest of the State and the welfare of the Filipino people. The foregoing provisions of Section 35 of RA 7942 are also reflected and implemented in Section 56 (g), (h), (l), (m) and (n) of the Implementing Rules, DAO 96-40. Moreover, RA 7942 and DAO 96-40 also provide various stipulations confirming the governments control over mining enterprises: The contractor is to relinquish to the government those portions of the contract area not needed for mining operations and not covered by any declaration of mining feasibility (Section 35-e, RA 7942; Section 60, DAO 96-40). The contractor must comply with the provisions pertaining to mine safety, health and environmental protection (Chapter XI, RA 7942; Chapters XV and XVI, DAO 96-40). For violation of any of its terms and conditions, government may cancel an FTAA. (Chapter XVII, RA 7942; Chapter XXIV, DAO 96-40). An FTAA contractor is obliged to open its books of accounts and records for inspection by the government (Section 56-m, DAO 96-40). An FTAA contractor has to dispose of the minerals and by-products at the highest market price and register with the MGB a copy of the sales agreement (Section 56-n, DAO 96-40). MGB is mandated to monitor the contractors compliance with the terms and conditions of the FTAA; and to deputize, when necessary, any member or unit of the Philippine National Police, the barangay or a DENR-accredited nongovernmental organization to police mining activities (Section 7-d and -f, DAO 96-40). An FTAA cannot be transferred or assigned without prior approval by the President (Section 40, RA 7942; Section 66, DAO 96-40). A mining project under an FTAA cannot proceed to the construction/development/utilization stage, unless its Declaration of Mining Project Feasibility has been approved by government (Section 24, RA 7942). The Declaration of Mining Project Feasibility filed by the contractor cannot be approved without submission of the following documents: 1. Approved mining project feasibility study (Section 53-d, DAO 96-40) 2. Approved three-year work program (Section 53-a-4, DAO 96-40) 3. Environmental compliance certificate (Section 70, RA 7942) 4. Approved environmental protection and enhancement program (Section 69, RA 7942) 5. Approval by the Sangguniang Panlalawigan/Bayan/Barangay (Section 70, RA 7942; Section 27, RA 7160) 6. Free and prior informed consent by the indigenous peoples concerned, including payment of royalties through a Memorandum of Agreement (Section 16, RA 7942; Section 59, RA 8371) The FTAA contractor is obliged to assist in the development of its mining community, promotion of the general welfare of its inhabitants, and development of science and mining technology (Section 57, RA 7942). The FTAA contractor is obliged to submit reports (on quarterly, semi-annual or annual basis as the case may be; per Section 270, DAO 96-40), pertaining to the following:
1. Exploration 2. Drilling 3. Mineral resources and reserves 4. Energy consumption 5. Production 6. Sales and marketing 7. Employment 8. Payment of taxes, royalties, fees and other Government Shares 9. Mine safety, health and environment 10. Land use 11. Social development 12. Explosives consumption An FTAA pertaining to areas within government reservations cannot be granted without a written clearance from the government agencies concerned (Section 19, RA 7942; Section 54, DAO 96-40). An FTAA contractor is required to post a financial guarantee bond in favor of the government in an amount equivalent to its expenditures obligations for any particular year. This requirement is apart from the representations and warranties of the contractor that it has access to all the financing, managerial and technical expertise and technology necessary to carry out the objectives of the FTAA (Section 35-b, -e, and -f, RA 7942). Other reports to be submitted by the contractor, as required under DAO 96-40, are as follows: an environmental report on the rehabilitation of the mined-out area and/or mine waste/tailing covered area, and anti-pollution measures undertaken (Section 35-a-2); annual reports of the mining operations and records of geologic accounting (Section 56-m); annual progress reports and final report of exploration activities (Section 56-2). Other programs required to be submitted by the contractor, pursuant to DAO 96-40, are the following: a safety and health program (Section 144); an environmental work program (Section 168); an annual environmental protection and enhancement program (Section 171). The foregoing gamut of requirements, regulations, restrictions and limitations imposed upon the FTAA contractor by the statute and regulations easily overturns petitioners contention. The setup under RA 7942 and DAO 96-40 hardly relegates the State to the role of a passive regulator dependent on submitted plans and reports. On the contrary, the government agencies concerned are empowered to approve or disapprove -- hence, to influence, direct and change -- the various work programs and the corresponding minimum expenditure commitments for each of the exploration, development and utilization phases of the mining enterprise. Once these plans and reports are approved, the contractor is bound to comply with its commitments therein. Figures for mineral production and sales are regularly monitored and subjected to government review, in order to ensure that the products and by-products are disposed of at the best prices possible; even copies of sales agreements have to be submitted to and registered with MGB. And the contractor is mandated to open its books of accounts and records for scrutiny, so as to enable the State to determine if the government share has been fully paid. The State may likewise compel the contractors compliance with mandatory requirements on mine safety, health and environmental protection, and the use of anti-pollution technology and facilities. Moreover, the contractor is also obligated to assist in the development of the mining community and to pay royalties to the indigenous peoples concerned. Cancellation of the FTAA may be the penalty for violation of any of its terms and conditions and/or noncompliance with statutes or regulations. This general, all-around, multipurpose sanction is no trifling
matter, especially to a contractor who may have yet to recover the tens or hundreds of millions of dollars sunk into a mining project. Overall, considering the provisions of the statute and the regulations just discussed, we believe that the State definitely possesses the means by which it can have the ultimate word in the operation of the enterprise, set directions and objectives, and detect deviations and noncompliance by the contractor; likewise, it has the capability to enforce compliance and to impose sanctions, should the occasion therefor arise. In other words, the FTAA contractor is not free to do whatever it pleases and get away with it; on the contrary, it will have to follow the government line if it wants to stay in the enterprise. Ineluctably then, RA 7942 and DAO 96-40 vest in the government more than a sufficient degree of control and supervision over the conduct of mining operations.
Section 3(aq) of RA 7942 Not Unconstitutional [55] An objection has been expressed that Section 3(aq) of RA 7942 -- which allows a foreign contractor to apply for and hold an exploration permit -- is unconstitutional. The reasoning is that Section 2 of Article XII of the Constitution does not allow foreign-owned corporations to undertake mining operations directly. They may act only as contractors of the State under an FTAA; and the State, as the party directly undertaking exploitation of its natural resources, must hold through the government all exploration permits and similar authorizations. Hence, Section 3(aq), in permitting foreign-owned corporations to hold exploration permits, is unconstitutional. The objection, however, is not well-founded. While the Constitution mandates the State to exercise full control and supervision over the exploitation of mineral resources, nowhere does it require the government to hold all exploration permits and similar authorizations. In fact, there is no prohibition at all against foreign or local corporations or contractors holding exploration permits. The reason is not hard to see. Pursuant to Section 20 of RA 7942, an exploration permit merely grants to a qualified person the right to conduct exploration for all minerals in specified areas. Such a permit does not amount to an authorization to extract and carry off the mineral resources that may be discovered. This phase involves nothing but expenditures for exploring the contract area and locating the mineral bodies. As no extraction is involved, there are no revenues or incomes to speak of. In short, the exploration permit is an authorization for the grantee to spend its own funds on exploration programs that are pre-approved by the government, without any right to recover anything should no minerals in commercial quantities be discovered. The State risks nothing and loses nothing by granting these permits to local or foreign firms; in fact, it stands to gain in the form of data generated by the exploration activities. Pursuant to Section 24 of RA 7942, an exploration permit grantee who determines the commercial viability of a mining area may, within the term of the permit, file with the MGB a declaration of mining project feasibility accompanied by a work program for development. The approval of the mining project feasibility and compliance with other requirements of RA 7942 vests in the grantee the exclusive right to an MPSA or any other mineral agreement, or to an FTAA. Thus, the permit grantee may apply for an MPSA, a joint venture agreement, a co-production agreement, or an FTAA over the permit area, and the application shall be approved if the permit grantee meets the necessary qualifications and the terms and conditions of any such agreement. Therefore, the contractor will be in a position to extract minerals and earn revenues only when the MPSA or another mineral agreement, or an FTAA, is granted. At that point, the contractors rights and obligations will be covered by an FTAA or a mineral agreement.
But prior to the issuance of such FTAA or mineral agreement, the exploration permit grantee (or prospective contractor) cannot yet be deemed to have entered into any contract or agreement with the State, and the grantee would definitely need to have some document or instrument as evidence of its right to conduct exploration works within the specified area. This need is met by the exploration permit issued pursuant to Sections 3(aq), 20 and 23 of RA 7942. In brief, the exploration permit serves a practical and legitimate purpose in that it protects the interests and preserves the rights of the exploration permit grantee (the would-be contractor) -foreign or local -- during the period of time that it is spending heavily on exploration works, without yet being able to earn revenues to recoup any of its investments and expenditures. Minus this permit and the protection it affords, the exploration works and expenditures may end up benefiting only claimjumpers. Such a possibility tends to discourage investors and contractors. Thus, Section 3(aq) of RA 7942 may not be deemed unconstitutional.
The Terms of the WMCP FTAA A Deference to State Control A perusal of the WMCP FTAA also reveals a slew of stipulations providing for State control and supervision:
1. The contractor is obligated to account for the value of production and sale of minerals (Clause 1.4). 2. The contractors work program, activities and budgets must be approved by/on behalf of the State (Clause 2.1). 3. The DENR secretary has the power to extend the exploration period (Clause 3.2-a). 4. Approval by the State is necessary for incorporating lands into the FTAA contract area (Clause 4.3-c). 5. The Bureau of Forest Development is vested with discretion in regard to approving the inclusion of forest reserves as part of the FTAA contract area (Clause 4.5). 6. The contractor is obliged to relinquish periodically parts of the contract area not needed for exploration and development (Clause 4.6). 7. A Declaration of Mining Feasibility must be submitted for approval by the State (Clause 4.6-b). 8. The contractor is obligated to report to the State its exploration activities (Clause 4.9). 9. The contractor is required to obtain State approval of its work programs for the succeeding two-year periods, containing the proposed work activities and expenditures budget related to exploration (Clause 5.1). 10. The contractor is required to obtain State approval for its proposed expenditures for exploration activities (Clause 5.2). 11. The contractor is required to submit an annual report on geological, geophysical, geochemical and other information relating to its explorations within the FTAA area (Clause 5.3-a). 12. The contractor is to submit within six months after expiration of exploration period a final report on all its findings in the contract area (Clause 5.3-b). 13. The contractor, after conducting feasibility studies, shall submit a declaration of mining feasibility, along with a description of the area to be developed and mined, a description of the proposed mining operations and the technology to be employed, and a proposed work program for the development phase, for approval by the DENR secretary (Clause 5.4). 14. The contractor is obliged to complete the development of the mine, including construction of the
production facilities, within the period stated in the approved work program (Clause 6.1). 15. The contractor is obligated to submit for approval of the DENR secretary a work program covering each period of three fiscal years (Clause 6.2). 16. The contractor is to submit reports to the DENR secretary on the production, ore reserves, work accomplished and work in progress, profile of its work force and management staff, and other technical information (Clause 6.3). 17. Any expansions, modifications, improvements and replacements of mining facilities shall be subject to the approval of the secretary (Clause 6.4). 18. The State has control with respect to the amount of funds that the contractor may borrow within the Philippines (Clause 7.2). 19. The State has supervisory power with respect to technical, financial and marketing issues (Clause 10.1-a). 20. The contractor is required to ensure 60 percent Filipino equity in the contractor, within ten years of recovering specified expenditures, unless not so required by subsequent legislation (Clause 10.1). 21. The State has the right to terminate the FTAA for the contractors unremedied substantial breach thereof (Clause 13.2); 22. The States approval is needed for any assignment of the FTAA by the contractor to an entity other than an affiliate (Clause 14.1).
We should elaborate a little on the work programs and budgets, and what they mean with respect to the States ability to exercise full control and effective supervision over the enterprise. For instance, throughout the initial five-year exploration and feasibility phase of the project, the contractor is mandated by Clause 5.1 of the WMCP FTAA to submit a series of work programs (copy furnished the director of MGB) to the DENR secretary for approval. The programs will detail the contractors proposed exploration activities and budget covering each subsequent period of two fiscal years. In other words, the concerned government officials will be informed beforehand of the proposed exploration activities and expenditures of the contractor for each succeeding two-year period, with the right to approve/disapprove them or require changes or adjustments therein if deemed necessary. Likewise, under Clause 5.2(a), the amount that the contractor was supposed to spend for exploration activities during the first contract year of the exploration period was fixed at not less than P24 million; and then for the succeeding years, the amount shall be as agreed between the DENR secretary and the contractor prior to the commencement of each subsequent fiscal year. If no such agreement is arrived upon, the previous years expenditure commitment shall apply. This provision alone grants the government through the DENR secretary a very big say in the exploration phase of the project. This fact is not something to be taken lightly, considering that the government has absolutely no contribution to the exploration expenditures or work activities and yet is given veto power over such a critical aspect of the project . We cannot but construe as very significant such a degree of control over the project and, resultantly, over the mining enterprise itself. Following its exploration activities or feasibility studies, if the contractor believes that any part of the contract area is likely to contain an economic mineral resource, it shall submit to the DENR secretary a declaration of mining feasibility (per Clause 5.4 of the FTAA), together with a technical description of the area delineated for development and production, a description of the proposed mining operations including the technology to be used, a work program for development, an environmental impact statement, and a description of the contributions to the economic and general welfare of the country to be generated by the mining operations (pursuant to Clause 5.5). The work program for development is subject to the approval of the DENR secretary. Upon its approval,
the contractor must comply with it and complete the development of the mine, including the construction of production facilities and installation of machinery and equipment, within the period provided in the approved work program for development (per Clause 6.1). Thus, notably, the development phase of the project is likewise subject to the control and supervision of the government. It cannot be emphasized enough that the proper and timely construction and deployment of the production facilities and the development of the mine are of pivotal significance to the success of the mining venture. Any missteps here will potentially be very costly to remedy. Hence, the submission of the work program for development to the DENR secretary for approval is particularly noteworthy, considering that so many millions of dollars worth of investments -- courtesy of the contractor -- are made to depend on the States consideration and action. Throughout the operating period , the contractor is required to submit to the DENR secretary for approval, copy furnished the director of MGB, work programs covering each period of three fiscal years (per Clause 6.2). During the same period (per Clause 6.3), the contractor is mandated to submit various quarterly and annual reports to the DENR secretary, copy furnished the director of MGB, on the tonnages of production in terms of ores and concentrates, with corresponding grades, values and destinations; reports of sales; total ore reserves, total tonnage of ores, work accomplished and work in progress (installations and facilities related to mining operations), investments made or committed, and so on and so forth. Under Section VIII, during the period of mining operations, the contractor is also required to submit to the DENR secretary (copy furnished the director of MGB) the work program and corresponding budget for the contract area, describing the mining operations that are proposed to be carried out during the period covered. The secretary is, of course, entitled to grant or deny approval of any work program or budget and/or propose revisions thereto. Once the program/budget has been approved, the contractor shall comply therewith. In sum, the above provisions of the WMCP FTAA taken together, far from constituting a surrender of control and a grant of beneficial ownership of mineral resources to the contractor in question, bestow upon the State more than adequate control and supervision over the activities of the contractor and the enterprise.
No Surrender of Control Under the WMCP FTAA Petitioners, however, take aim at Clause 8.2, 8.3, and 8.5 of the WMCP FTAA which, they say, amount to a relinquishment of control by the State, since it cannot truly impose its own discretion in respect of the submitted work programs.
8.2. The Secretary shall be deemed to have approved any Work Programme or Budget or variation thereof submitted by the Contractor unless within sixty (60) days after submission by the Contractor the Secretary gives notice declining such approval or proposing a revision of certain features and specifying its reasons therefor (the Rejection Notice). 8.3. If the Secretary gives a Rejection Notice, the Parties shall promptly meet and endeavor to agree on amendments to the Work Programme or Budget. If the Secretary and the Contractor fail to agree on the proposed revision within 30 days from delivery of the Rejection Notice then the Work Programme or Budget or variation thereof proposed by the Contractor shall be deemed approved, so as not to unnecessarily delay the performance of the Agreement. 8.4. x x x x x x x x x 8.5. So far as is practicable, the Contractor shall comply with any approved Work Programme and Budget. It is recognized by the Secretary and the Contractor that the details of any Work
Programmes or Budgets may require changes in the light of changing circumstances. The Contractor may make such changes without approval of the Secretary provided they do not change the general objective of any Work Programme, nor entail a downward variance of more than twenty per centum (20percent) of the relevant Budget. All other variations to an approved Work Programme or Budget shall be submitted for approval of the Secretary.
From the provisions quoted above, petitioners generalize by asserting that the government does not participate in making critical decisions regarding the operations of the mining firm. Furthermore, while the State can require the submission of work programs and budgets, the decision of the contractor will still prevail, if the parties have a difference of opinion with regard to matters affecting operations and management. We hold, however, that the foregoing provisions do not manifest a relinquishment of control.For instance, Clause 8.2 merely provides a mechanism for preventing the business or mining operations from grinding to a complete halt as a result of possibly over-long and unjustified delays in the governments handling, processing and approval of submitted work programs and budgets. Anyway, the provision does give the DENR secretary more than sufficient time (60 days) to react to submitted work programs and budgets. It cannot be supposed that proper grounds for objecting thereto, if any exist, cannot be discovered within a period of two months. On the other hand, Clause 8.3 seeks to provide a temporary, stop-gap solution in the event a disagreement over the submitted work program or budget arises between the State and the contractor and results in a stalemate or impasse, in order that there will be no unreasonably long delays in the performance of the works. These temporary or stop-gap solutions are not necessarily evil or wrong. Neither does it follow that the government will inexorably be aggrieved if and when these temporary remedies come into play. First , avoidance of long delays in these situations will undoubtedly redound to the benefit of the State as well as the contractor. Second , who is to say that the work program or budget proposed by the contractor and deemed approved under Clause 8.3 would not be the better or more reasonable or more effective alternative? The contractor, being the insider, as it were, may be said to be in a better position than the State -- an outsider looking in -- to determine what work program or budget would be appropriate, more effective, or more suitable under the circumstances. All things considered, we take exception to the characterization of the DENR secretary as a subservient nonentity whom the contractor can overrule at will, on account of Clause 8.3. And neither is it true that under the same clause, the DENR secretary has no authority whatsoever to disapprove the work program. As Respondent WMCP reasoned in its Reply-Memorandum, the State -- despite Clause 8.3 -- still has control over the contract area and it may, as sovereign authority, prohibit work thereon until the dispute is resolved. And ultimately, the State may terminate the agreement, pursuant to Clause 13.2 of the same FTAA, citing substantial breach thereof. Hence, it clearly retains full and effective control of the exploitation of the mineral resources. On the other hand, Clause 8.5 is merely an acknowledgment of the parties need for flexibility, given that no one can accurately forecast under all circumstances, or predict how situations may change. Hence, while approved work programs and budgets are to be followed and complied with as far as practicable, there may be instances in which changes will have to be effected, and effected rapidly, since events may take shape and unfold with suddenness and urgency. Thus, Clause 8.5 allows the contractor to move ahead and make changes without the express or implicit approval of the DENR secretary. Such changes are, however, subject to certain conditions that will serve to limit or restrict the variance and prevent the contractor from straying very far from what has been approved. Clause 8.5 provides the contractor a certain amount of flexibility to meet unexpected situations, while still guaranteeing that the approved work programs and budgets are not abandoned altogether. Clause 8.5 does not constitute proof that the State has relinquished control. And ultimately, should there be disagreement
with the actions taken by the contractor in this instance as well as under Clause 8.3 discussed above, the DENR secretary may resort to cancellation/termination of the FTAA as the ultimate sanction.
Discretion to Select Contract Area Not an Abdication of Control Next, petitioners complain that the contractor has full discretion to select -- and the government has no say whatsoever as to -- the parts of the contract area to be relinquished pursuant to Clause 4.6 of the WMCP [56] FTAA. This clause, however, does not constitute abdication of control. Rather, it is a mere acknowledgment of the fact that the contractor will have determined, after appropriate exploration works, which portions of the contract area do not contain minerals in commercial quantities sufficient to justify developing the same and ought therefore to be relinquished. The State cannot just substitute its judgment for that of the contractor and dictate upon the latter which areas to give up. Moreover, we can be certain that the contractors self-interest will propel proper and efficient [57] relinquishment. According to private respondent, a mining company tries to relinquish as much nonmineral areas as soon as possible, because the annual occupation fees paid to the government are based on the total hectarage of the contract area, net of the areas relinquished. Thus, the larger the remaining area, the heftier the amount of occupation fees to be paid by the contractor. Accordingly, relinquishment is not an issue, given that the contractor will not want to pay the annual occupation fees on the non-mineral parts of its contract area. Neither will it want to relinquish promising sites, which other contractors may subsequently pick up.
Government Not a Subcontractor Petitioners further maintain that the contractor can compel the government to exercise its power of eminent domain to acquire surface areas within the contract area for the contractors use. Clause 10.2 (e) of the WMCP FTAA provides that the government agrees that the contractor shall (e) have the right to require the Government at the Contractors own cost, to purchase or acquire surface areas for and on behalf of the Contractor at such price and terms as may be acceptable to the contractor. At the termination of this Agreement such areas shall be sold by public auction or tender and the Contractor shall be entitled to reimbursement of the costs of acquisition and maintenance, adjusted for inflation, from the proceeds of sale. According to petitioners, government becomes a subcontractor to the contractor and may, on account of this provision, be compelled to make use of its power of eminent domain, not for public purposes but on behalf of a private party, i.e., the contractor. Moreover, the power of the courts to determine the amount corresponding to the constitutional requirement of just compensation has allegedly also been contracted away by the government, on account of the latters commitment that the acquisition shall be at such terms as may be acceptable to the contractor. [58] However, private respondent has proffered a logical explanation for the provision. Section 10.2(e) contemplates a situation applicable to foreign-owned corporations. WMCP, at the time of the execution of the FTAA, was a foreign-owned corporation and therefore not qualified to own land. As contractor, it has at some future date to construct the infrastructure -- the mine processing plant, the camp site, the tailings dam, and other infrastructure -- needed for the large-scale mining operations. It will then have to identify and pinpoint, within the FTAA contract area, the particular surface areas with favorable topography deemed ideal for such infrastructure and will need to acquire the surface rights. The State owns the mineral deposits in the
earth, and is also qualified to own land. Section 10.2(e) sets forth the mechanism whereby the foreign-owned contractor, disqualified to own land, identifies to the government the specific surface areas within the FTAA contract area to be acquired for the mine infrastructure. The government then acquires ownership of the surface land areas on behalf of the contractor, in order to enable the latter to proceed to fully implement the FTAA. The contractor, of course, shoulders the purchase price of the land. Hence, the provision allows it, after termination of the FTAA, to be reimbursed from proceeds of the sale of the surface areas, which the government will dispose of through public bidding. It should be noted that this provision will not be applicable to Sagittarius as the present FTAA contractor, since it is a Filipino corporation qualified to own and hold land. As such, it may therefore freely negotiate with the surface rights owners and acquire the surface property in its own right. Clearly, petitioners have needlessly jumped to unwarranted conclusions, without being aware of the rationale for the said provision. That provision does not call for the exercise of the power of eminent domain -- and determination of just compensation is not an issue -- as much as it calls for a qualified party to acquire the surface rights on behalf of a foreign-owned contractor. Rather than having the foreign contractor act through a dummy corporation, having the State do the purchasing is a better alternative. This will at least cause the government to be aware of such transaction/s and foster transparency in the contractors dealings with the local property owners. The government, then, will not act as a subcontractor of the contractor; rather, it will facilitate the transaction and enable the parties to avoid a technical violation of the Anti-Dummy Law.
Absence of Provision Requiring Sale at Posted Prices Not Problematic The supposed absence of any provision in the WMCP FTAA directly and explicitly requiring the contractor to sell the mineral products at posted or market prices is not a problem. Apart from Clause 1.4 of the FTAA obligating the contractor to account for the total value of mineral production and the sale of minerals, we can also look to Section 35 of RA 7942, which incorporates into all FTAAs certain terms, conditions and warranties, including the following:
(l) The contractors shall furnish the Government records of geologic, accounting and other relevant data for its mining operation, and that books of accounts and records shall be open for inspection by the government. x x x (m) Requiring the proponent to dispose of the minerals at the highest price and more advantageous terms and conditions.
For that matter, Section 56(n) of DAO 99-56 specifically obligates an FTAA contractor to dispose of the minerals and by-products at the highest market price and to register with the MGB a copy of the sales agreement. After all, the provisions of prevailing statutes as well as rules and regulations are deemed written into contracts.
Contractors Right to Mortgage Not Objectionable Per Se Petitioners also question the absolute right of the contractor under Clause 10.2 (l) to mortgage and encumber not only its rights and interests in the FTAA and the infrastructure and improvements introduced,
but also the mineral products extracted. Private respondents do not touch on this matter, but we believe that this provision may have to do with the conditions imposed by the creditor-banks of the then foreign contractor WMCP to secure the lendings made or to be made to the latter. Ordinarily, banks lend not only on the security of mortgages on fixed assets, but also on encumbrances of goods produced that can easily be sold and converted into cash that can be applied to the repayment of loans. Banks even lend on the [59] security of accounts receivable that are collectible within 90 days. It is not uncommon to find that a debtor corporation has executed deeds of assignment by way of security over the production for the next twelve months and/or the proceeds of the sale thereof -- or the corresponding accounts receivable, if sold on terms -- in favor of its creditor-banks. Such deeds may include authorizing the creditors to sell the products themselves and to collect the sales proceeds and/or the accounts receivable. Seen in this context, Clause 10.2(l) is not something out of the ordinary or objectionable. In any case, as will be explained below, even if it is allowed to mortgage or encumber the mineral end-products themselves, the contractor is not freed of its obligation to pay the government its basic and additional shares in the net mining revenue, which is the essential thing to consider. In brief, the alarum raised over the contractors right to mortgage the minerals is simply unwarranted. Just the same, the contractor must account for the value of mineral production and the sales proceeds therefrom. Likewise, under the WMCP FTAA, the government remains entitled to its sixty percent share in the net mining revenues of the contractor. The latters right to mortgage the minerals does not negate the States right to receive its share of net mining revenues.
Shareholders Free to Sell Their Stocks Petitioners likewise criticize Clause 10.2(k), which gives the contractor authority to change its equity structure at any time. This provision may seem somewhat unusual, but considering that WMCP then was 100 percent foreign-owned, any change would mean that such percentage would either stay unaltered or be decreased in favor of Filipino ownership. Moreover, the foreign-held shares may change hands freely. Such eventuality is as it should be. We believe it is not necessary for government to attempt to limit or restrict the freedom of the shareholders in the contractor to freely transfer, dispose of or encumber their shareholdings, consonant with the unfettered exercise of their business judgment and discretion. Rather, what is critical is that, regardless of the identity, nationality and percentage ownership of the various shareholders of the contractor -- and regardless of whether these shareholders decide to take the company public, float bonds and other fixedincome instruments, or allow the creditor-banks to take an equity position in the company -- the foreignowned contractor is always in a position to render the services required under the FTAA, under the direction and control of the government.
Contractors Right to Ask For Amendment Not Absolute With respect to Clauses 10.4(e) and (i), petitioners complain that these provisions bind government to allow amendments to the FTAA if required by banks and other financial institutions as part of the conditions for new lendings. However, we do not find anything wrong with Clause 10.4(e), which only states that if the Contractor seeks to obtain financing contemplated herein from banks or other financial institutions, (the
Government shall) cooperate with the Contractor in such efforts provided that such financing arrangements will in no event reduce the Contractors obligations or the Governments rights hereunder. The colatilla obviously safeguards the States interests; if breached, it will give the government cause to object to the proposed amendments. On the other hand, Clause 10.4(i) provides that the Government shall favourably consider any request from [the] Contractor for amendments of this Agreement which are necessary in order for the Contractor to successfully obtain the financing. Petitioners see in this provision a complete renunciation of control. We disagree. The proviso does not say that the government shall grant any request for amendment. Clause 10.4(i) only obliges the State to favorably consider any such request, which is not at all unreasonable, as it is not equivalent to saying that the government must automatically consent to it. This provision should be read together with the rest of the FTAA provisions instituting government control and supervision over the mining enterprise. The clause should not be given an interpretation that enables the contractor to wiggle out of the restrictions imposed upon it by merely suggesting that certain amendments are requested by the lenders. Rather, it is up to the contractor to prove to the government that the requested changes to the FTAA are indispensable, as they enable the contractor to obtain the needed financing; that without such contract changes, the funders would absolutely refuse to extend the loan; that there are no other sources of financing available to the contractor (a very unlikely scenario); and that without the needed financing, the execution of the work programs will not proceed. But the bottom line is, in the exercise of its power of control, the government has the final say on whether to approve or disapprove such requested amendments to the FTAA. In short, approval thereof is not mandatory on the part of the government. In fine, the foregoing evaluation and analysis of the aforementioned FTAA provisions sufficiently overturns petitioners litany of objections to and criticisms of the States alleged lack of control.
Financial Benefits Not Surrendered to the Contractor One of the main reasons certain provisions of RA 7942 were struck down was the finding mentioned in the Decision that beneficial ownership of the mineral resources had been conveyed to the contractor. This finding was based on the underlying assumption, common to the said provisions, that the foreign contractor manages the mineral resources in the same way that foreign contractors in service contracts used to. By allowing foreign contractors to manage or operate all the aspects of the mining operation, the above-cited provisions of R.A. No. 7942 have in effect conveyed beneficial ownership over the nations mineral [60] resources to these contractors, leaving the State with nothing but bare title thereto. As the WMCP FTAA contained similar provisions deemed by the ponente to be abhorrent to the Constitution, the Decision struck down the Contract as well. Beneficial ownership has been defined as ownership recognized by law and capable of being enforced in [61] the courts at the suit of the beneficial owner. Blacks Law Dictionary indicates that the term is used in two senses: first, to indicate the interest of a beneficiary in trust property (also called equitable ownership); and second, to refer to the power of a corporate shareholder to buy or sell the shares, though the shareholder is [62] not registered in the corporations books as the owner. Usually, beneficial ownership is distinguished from naked ownership, which is the enjoyment of all the benefits and privileges of ownership, as against possession of the bare title to property. An assiduous examination of the WMCP FTAA uncovers no indication that it confers upon WMCP ownership, beneficial or otherwise, of the mining property it is to develop, the minerals to be produced, or the
proceeds of their sale, which can be legally asserted and enforced as against the State. As public respondents correctly point out, any interest the contractor may have in the proceeds of the mining operation is merely the equivalent of the consideration the government has undertaken to pay for its services. All lawful contracts require such mutual prestations, and the WMCP FTAA is no different. The contractor commits to perform certain services for the government in respect of the mining operation, and in turn it is to be compensated out of the net mining revenues generated from the sale of mineral products. What would be objectionable is a contractual provision that unduly benefits the contractor far in excess of the service rendered or value delivered, if any, in exchange therefor. A careful perusal of the statute itself and its implementing rules reveals that neither RA 7942 nor DAO 99-56 can be said to convey beneficial ownership of any mineral resource or product to any foreign FTAA contractor.
Equitable Sharing of Financial Benefits On the contrary, DAO 99-56, entitled Guidelines Establishing the Fiscal Regime of Financial or Technical Assistance Agreements aims to ensure an equitable sharing of the benefits derived from mineral resources. These benefits are to be equitably shared among the government (national and local), the FTAA contractor, and the affected communities. The purpose is to ensure sustainable mineral resources development; and a fair, equitable, competitive and stable investment regime for the large-scale exploration, development and commercial utilization of minerals. The general framework or concept followed in crafting the fiscal regime of the FTAA is based on the principle that the government expects real contributions to the economic growth and general welfare of the country, while the contractor expects a reasonable return on its [63] investments in the project. Specifically, under the fiscal regime, the governments expectation is, inter alia, the receipt of its share from the taxes and fees normally paid by a mining enterprise. On the other hand, the FTAA contractor is [64] granted by the government certain fiscal and non-fiscal incentives to help support the formers cash flow during the most critical phase (cost recovery) and to make the Philippines competitive with other mineralproducing countries. After the contractor has recovered its initial investment, it will pay all the normal taxes and fees comprising the basic share of the government, plus an additional share for the government based on the options and formulae set forth in DAO 99-56. The said DAO spells out the financial benefits the government will receive from an FTAA, referred to as the Government Share, composed of a basic government share and an additional government share. The basic government share is comprised of all direct taxes, fees and royalties, as well as other payments made by the contractor during the term of the FTAA. These are amounts paid directly to (i) the national government (through the Bureau of Internal Revenue, Bureau of Customs, Mines & Geosciences Bureau and other national government agencies imposing taxes or fees), (ii) the local government units where the mining activity is conducted, and (iii) persons and communities directly affected by the mining project. The major taxes and other payments constituting the basic government share are enumerated [65] below: Payments to the National Government:
Excise tax on minerals - 2 percent of the gross output of mining operations Contractor income tax - maximum of 32 percent of taxable income for corporations
Customs duties and fees on imported capital equipment -the rate is set by the Tariff and Customs Code (3-7 percent for chemicals; 3-10 percent for explosives; 3-15 percent for mechanical and electrical equipment; and 3-10 percent for vehicles, aircraft and vessels VAT on imported equipment, goods and services 10 percent of value Royalties due the government on minerals extracted from mineral reservations, if applicable 5 percent of the actual market value of the minerals produced Documentary stamp tax - the rate depends on the type of transaction Capital gains tax on traded stocks - 5 to 10 percent of the value of the shares Withholding tax on interest payments on foreign loans -15 percent of the amount of interest Withholding tax on dividend payments to foreign stockholders 15 percent of the dividend Wharfage and port fees Licensing fees (for example, radio permit, firearms permit, professional fees) Other national taxes and fees.
Payments to Local Governments:

Local business tax - a maximum of 2 percent of gross sales or receipts (the rate varies among local government units) Real property tax - 2 percent of the fair market value of the property, based on an assessment level set by the local government Special education levy - 1 percent of the basis used for the real property tax Occupation fees - PhP50 per hectare per year; PhP100 per hectare per year if located in a mineral reservation Community tax - maximum of PhP10,500 per year All other local government taxes, fees and imposts as of the effective date of the FTAA - the rate and the type depend on the local government
Other Payments:
Royalty to indigenous cultural communities, if any 1 percent of gross output from mining operations Special allowance - payment to claim owners and surface rights holders
Apart from the basic share, an additional government share is also collected from the FTAA contractor in accordance with the second paragraph of Section 81 of RA 7942, which provides that the government share shall be comprised of, among other things, certain taxes, duties and fees. The subject proviso reads: The Government share in a financial or technical assistance agreement shall consist of, among other things, the contractors corporate income tax, excise tax, special allowance, withholding tax due from the contractors foreign stockholders arising from dividend or interest payments to the said foreign stockholder in case of a foreign national, and all such other taxes, duties and fees as provided for under existing laws. (Bold types supplied.) The government, through the DENR and the MGB, has interpreted the insertion of the phrase among other things as signifying that the government is entitled to an additional government share to be paid by the contractor apart from the basic share, in order to attain a fifty-fifty sharing of net benefits from mining. The additional government share is computed by using one of three options or schemes presented in
DAO 99-56: (1) a fifty-fifty sharing in the cumulative present value of cash flows; (2) the share based on excess profits; and (3) the sharing based on the cumulative net mining revenue. The particular formula to be applied will be selected by the contractor, with a written notice to the government prior to the commencement [66] of the development and construction phase of the mining project. Proceeds from the government shares arising from an FTAA contract are distributed to and received by the different levels of government in the following proportions: National Government 50 percent Provincial Government 10 percent Municipal Government 20 percent Affected Barangays 20 percent The portion of revenues remaining after the deduction of the basic and additional government shares is what goes to the contractor.
Governments Share in an FTAA Not Consisting Solely of Taxes, Duties and Fees In connection with the foregoing discussion on the basic and additional government shares, it is pertinent at this juncture to mention the criticism leveled at the second paragraph of Section 81 of RA 7942, quoted earlier. The said proviso has been denounced, because, allegedly, the States share in FTAAs with foreign contractors has been limited to taxes, fees and duties only; in effect, the State has been deprived of a share in the after-tax income of the enterprise. In the face of this allegation, one has to consider that the law does not define the term among other things; and the Office of the Solicitor General, in its Motion for Reconsideration, appears to have erroneously claimed that the phrase refers to indirect taxes . The law provides no definition of the term among other things, for the reason that Congress deliberately avoided setting unnecessary limitations as to what may constitute compensation to the State for the exploitation and use of mineral resources. But the inclusion of that phrase clearly and unmistakably reveals the legislative intent to have the State collect more than just the usual taxes, duties and fees . Certainly, there is nothing in that phrase -- or in the second paragraph of Section 81 -- that would suggest that such phrase should be interpreted as referring only to taxes, duties, fees and the like. Precisely for that reason, to fulfill the legislative intent behind the inclusion of the phrase among other [67] things in the second paragraph of Section 81, the DENR structured and formulated in DAO 99-56 the said additional government share. Such a share was to consist not of taxes, but of a share in the earnings or cash flows of the mining enterprise. The additional government share was to be paid by the contractor on top of the basic share, so as to achieve a fifty-fifty sharing -- between the government and the contractor -- of net benefits from mining . In the Ramos-DeVera paper, the explanation of the three options [68] or formulas -- presented in DAO 99-56 for the computation of the additional government share -- serves to debunk the claim that the governments take from an FTAA consists solely of taxes, fees and duties. Unfortunately, the Office of the Solicitor General -- although in possession of the relevant data -- failed to fully replicate or echo the pertinent elucidation in the Ramos-DeVera paper regarding the three schemes or options for computing the additional government share presented in DAO 99-56. Had due care been taken by the OSG, the Court would have been duly apprised of the real nature and particulars of the additional share. But, perhaps, on account of the esoteric discussion in the Ramos-DeVera paper, and the even more
abstruse mathematical jargon employed in DAO 99-56, the OSG omitted any mention of the three options. Instead, the OSG skipped to a side discussion of the effect of indirect taxes, which had nothing at all to do with the additional government share, to begin with. Unfortunately, this move created the wrong impression, pointed out in Justice Antonio T. Carpios Opinion, that the OSG had taken the position that the additional government share consisted of indirect taxes. In any event, what is quite evident is the fact that the additional government share, as formulated, has nothing to do with taxes -- direct or indirect -- or with duties, fees or charges. To repeat, it is over and above the basic government share composed of taxes and duties. Simply put, the additional share may be (a) an [69] amount that will result in a 50-50 sharing of the cumulative present value of the cash flows of the enterprise ; (b) an amount equivalent to 25 percent of the additional or excess profits of the enterprise , reckoned against a benchmark return on investments; or (c) an amount that will result in a fifty-fifty sharing of the cumulative net mining revenue from the end of the recovery period up to the taxable year in question. The contractor is required to select one of the three options or formulae for computing the additional share, an option it will apply to all of its mining operations. As used above, net mining revenue is defined as the gross output from mining operations for a calendar year, less deductible expenses (inclusive of taxes, duties and fees). Such revenue would roughly be equivalent to taxable income or income before income tax . Definitely, as compared with, say, calculating the additional government share on the basis of net income ( after income tax), the net mining revenue is a better and much more reasonable basis for such computation, as it gives a truer picture of the profitability of the company. To demonstrate that the three options or formulations will operate as intended, Messrs. Ramos and de Vera also performed some quantifications of the government share via a financial modeling of each of the three options discussed above. They found that the government would get the highest share from the option that is based on the net mining revenue, as compared with the other two options, considering only the basic and the additional shares; and that, even though production rate decreases, the government share will actually increase when the net mining revenue and the additional profit-based options are used. Furthermore, it should be noted that the three options or formulae do not yet take into account the [70] [71] indirect taxes and other financial contributions of mining projects . These indirect taxes and other contributions are real and actual benefits enjoyed by the Filipino people and/or government. Now, if some of the quantifiable items are taken into account in the computations, the financial modeling would show that the total government share increases to 60 percent or higher -- in one instance, as much as 77 percent and even 89 percent -- of the net present value of total benefits from the project. As noted in the Ramos-DeVera paper, these results are not at all shabby, considering that the contractor puts in all the capital requirements and assumes all the risks, without the government having to contribute or risk anything. Despite the foregoing explanation, Justice Carpio still insisted during the Courts deliberations that the phrase among other things refers only to taxes, duties and fees. We are bewildered by his position. On the one hand, he condemns the Mining Law for allegedly limiting the governments benefits only to taxes, duties and fees; and on the other, he refuses to allow the State to benefit from the correct and proper interpretation of the DENR/MGB. To remove all doubts then, we hold that the States share is not limited to taxes, duties and fees only and that the DENR/MGB interpretation of the phrase among other things is correct. Definitely, this DENR/MGB interpretation is not only legally sound, but also greatly advantageous to the government. One last point on the subject. The legislature acted judiciously in not defining the terms among other things and, instead, leaving it to the agencies concerned to devise and develop the various modes of arriving at a reasonable and fair amount for the additional government share. As can be seen from DAO 99-56, the agencies concerned did an admirable job of conceiving and developing not just one formula, but three different formulae for arriving at the additional government share. Each of these options is quite fair and reasonable; and, as Messrs. Ramos and De Vera stated, other alternatives or schemes for a possible
improvement of the fiscal regime for FTAAs are also being studied by the government. Besides, not locking into a fixed definition of the term among other things will ultimately be more beneficial to the government, as it will have that innate flexibility to adjust to and cope with rapidly changing circumstances, particularly those in the international markets. Such flexibility is especially significant for the government in terms of helping our mining enterprises remain competitive in world markets despite challenging and shifting economic scenarios. In conclusion, we stress that we do not share the view that in FTAAs with foreign contractors under RA 7942, the governments share is limited to taxes, fees and duties. Consequently, we find the attacks on the second paragraph of Section 81 of RA 7942 totally unwarranted.
Collections Not Made Uncertain by the Third Paragraph of Section 81 [72] The third or last paragraph of Section 81 provides that the government share in FTAAs shall be collected when the contractor shall have recovered its pre-operating expenses and exploration and development expenditures. The objection has been advanced that, on account of the proviso, the collection of the States share is not even certain, as there is no time limit in RA 7942 for this grace period or recovery period. We believe that Congress did not set any time limit for the grace period, preferring to leave it to the concerned agencies, which are, on account of their technical expertise and training, in a better position to determine the appropriate durations for such recovery periods. After all, these recovery periods are determined, to a great extent, by technical and technological factors peculiar to the mining industry. Besides, with developments and advances in technology and in the geosciences, we cannot discount the possibility of shorter recovery periods. At any rate, the concerned agencies have not been remiss in this area. The 1995 and 1996 Implementing Rules and Regulations of RA 7942 specify that the period of recovery, reckoned from the date of commercial operation, shall be for a period not exceeding five years, or until the date of actual recovery, whichever comes earlier .
Approval of Pre-Operating Expenses Required by RA 7942 Still, RA 7942 is criticized for allegedly not requiring government approval of pre-operating, exploration and development expenses of the foreign contractors, who are in effect given unfettered discretion to determine the amounts of such expenses. Supposedly, nothing prevents the contractors from recording such expenses in amounts equal to the mining revenues anticipated for the first 10 or 15 years of commercial production, with the result that the share of the State will be zero for the first 10 or 15 years. Moreover, under the circumstances, the government would be unable to say when it would start to receive its share under the FTAA. We believe that the argument is based on incorrect information as well as speculation. Obviously, certain crucial provisions in the Mining Law were overlooked. Section 23, dealing with the rights and obligations of the exploration permit grantee, states: The permittee shall undertake exploration work on the area as specified by its permit based on an approved work program. The next proviso reads: Any expenditure in excess of the yearly budget of the approved work program may be carried forward and credited to the succeeding years covering the duration of the permit. x x x. (underscoring supplied) Clearly, even at the stage of application for an exploration permit, the applicant is required to submit --
for approval by the government -- a proposed work program for exploration, containing a yearly budget of proposed expenditures. The State has the opportunity to pass upon (and approve or reject) such proposed expenditures, with the foreknowledge that -- if approved -- these will subsequently be recorded as preoperating expenses that the contractor will have to recoup over the grace period. That is not all. Under Section 24, an exploration permit holder who determines the commercial viability of a project covering a mining area may, within the term of the permit, file with the Mines and Geosciences Bureau a declaration of mining project feasibility. This declaration is to be accompanied by a work program for development for the Bureaus approval, the necessary prelude for entering into an FTAA, a mineral production sharing agreement (MPSA), or some other mineral agreement. At this stage, too, the government obviously has the opportunity to approve or reject the proposed work program and budgeted expenditures for development works on the project. Such expenditures will ultimately become the pre-operating and development costs that will have to be recovered by the contractor. Naturally, with the submission of approved work programs and budgets for the exploration and the development/construction phases, the government will be able to scrutinize and approve or reject such expenditures. It will be well-informed as to the amounts of pre-operating and other expenses that the contractor may legitimately recover and the approximate period of time needed to effect such a recovery. There is therefore no way the contractor can just randomly post any amount of pre-operating expenses and expect to recover the same. The aforecited provisions on approved work programs and budgets have counterparts in Section 35, which deals with the terms and conditions exclusively applicable to FTAAs. The said provision requires certain terms and conditions to be incorporated into FTAAs; among them, a firm commitment x x x of an amount corresponding to the expenditure obligation that will be invested in the contract area and representations and warranties x x x to timely deploy these [financing, managerial and technical expertise and technological] resources under its supervision pursuant to the periodic work programs and related budgets x x x, as well as work programs and minimum expenditures commitments. (underscoring supplied) Unarguably, given the provisions of Section 35, the State has every opportunity to pass upon the proposed expenditures under an FTAA and approve or reject them. It has access to all the information it may need in order to determine in advance the amounts of pre-operating and developmental expenses that will have to be recovered by the contractor and the amount of time needed for such recovery. In summary, we cannot agree that the third or last paragraph of Section 81 of RA 7942 is in any manner unconstitutional.
No Deprivation of Beneficial Rights It is also claimed that aside from the second and the third paragraphs of Section 81 (discussed above), Sections 80, 84 and 112 of RA 7942 also operate to deprive the State of beneficial rights of ownership over mineral resources; and give them away for free to private business enterprises (including foreign owned corporations). Likewise, the said provisions have been construed as constituting, together with Section 81, an ingenious attempt to resurrect the old and discredited system of license, concession or lease. Specifically, Section 80 is condemned for limiting the States share in a mineral production-sharing agreement (MPSA) to just the excise tax on the mineral product. Under Section 151(A) of the Tax Code, such tax is only 2 percent of the market value of the gross output of the minerals. The colatilla in Section 84, [73] the portion considered offensive to the Constitution, reiterates the same limitation made in Section 80. It should be pointed out that Section 80 and the colatilla in Section 84 pertain only to MPSAs and have
no application to FTAAs. These particular statutory provisions do not come within the issues that were defined and delineated by this Court during the Oral Argument -- particularly the third issue, which pertained exclusively to FTAAs. Neither did the parties argue upon them in their pleadings. Hence, this Court cannot make any pronouncement in this case regarding the constitutionality of Sections 80 and 84 without violating the fundamental rules of due process. Indeed, the two provisos will have to await another case specifically placing them in issue. [74] On the other hand, Section 112 is disparaged for allegedly reverting FTAAs and all mineral agreements to the old and discredited license, concession or lease system. This Section states in relevant part that the provisions of Chapter XIV [which includes Sections 80 to 82] on government share in mineral production-sharing agreement x x x shall immediately govern and apply to a mining lessee or contractor. (underscoring supplied) This provision is construed as signifying that the 2 percent excise tax which, pursuant to Section 80, comprises the government share in MPSAs shall now also constitute the government share in FTAAs -- as well as in co-production agreements and joint venture agreements -- to the exclusion of revenues of any other nature or from any other source. Apart from the fact that Section 112 likewise does not come within the issues delineated by this Court during the Oral Argument, and was never touched upon by the parties in their pleadings, it must also be noted that the criticism hurled against this Section is rooted in unwarranted conclusions made without considering other relevant provisions in the statute. Whether Section 112 may properly apply to coproduction or joint venture agreements, the fact of the matter is that it cannot be made to apply to FTAAs. First , Section 112 does not specifically mention or refer to FTAAs; the only reason it is being applied to them at all is the fact that it happens to use the word contractor. Hence, it is a bit of a stretch to insist that it covers FTAAs as well. Second , mineral agreements, of which there are three types -- MPSAs, co-production agreements, and joint venture agreements -- are covered by Chapter V of RA 7942. On the other hand, FTAAs are covered by and in fact are the subject of Chapter VI, an entirely different chapter altogether. The law obviously intends to treat them as a breed apart from mineral agreements, since Section 35 (found in Chapter VI) creates a long list of specific terms, conditions, commitments, representations and warranties -which have not been made applicable to mineral agreements -- to be incorporated into FTAAs. Third , under Section 39, the FTAA contractor is given the option to downgrade -- to convert the FTAA into a mineral agreement at any time during the term if the economic viability of the contract area is inadequate to sustain large-scale mining operations. Thus, there is no reason to think that the law through Section 112 intends to exact from FTAA contractors merely the same government share (a 2 percent excise tax) that it apparently demands from contractors under the three forms of mineral agreements. In brief, Section 112 does not apply to FTAAs. Notwithstanding the foregoing explanation, Justices Carpio and Morales maintain that the Court must rule now on the constitutionality of Sections 80, 84 and 112, allegedly because the WMCP FTAA contains a provision which grants the contractor unbridled and automatic authority to convert the FTAA into an MPSA; and should such conversion happen, the State would be prejudiced since its share would be limited to the 2 percent excise tax. Justice Carpio adds that there are five MPSAs already signed just awaiting the judgment of this Court on respondents and intervenors Motions for Reconsideration. We hold however that, at this point, this argument is based on pure speculation. The Court cannot rule on mere surmises and hypothetical assumptions, without firm factual anchor. We repeat: basic due process requires that we hear the parties who have a real legal interest in the MPSAs (i.e. the parties who executed them) before these MPSAs can be reviewed, or worse, struck down by the Court. Anything less than that requirement would be arbitrary and capricious. In any event, the conversion of the present FTAA into an MPSA is problematic. First, the contractor must comply with the law, particularly Section 39 of RA 7942; inter alia, it must convincingly show that the economic viability of the contract is found to be inadequate to justify large-scale mining operations; second,
it must contend with the Presidents exercise of the power of State control over the EDU of natural resources; and third, it will have to risk a possible declaration of the unconstitutionality (in a proper case) of Sections 80, 84 and 112. The first requirement is not as simple as it looks. Section 39 contemplates a situation in which an FTAA has already been executed and entered into, and is presumably being implemented, when the contractor discovers that the mineral ore reserves in the contract area are not sufficient to justify large-scale mining, and thus the contractor requests the conversion of the FTAA into an MPSA. The contractor in effect needs to explain why, despite its exploration activities, including the conduct of various geologic and other scientific tests and procedures in the contract area, it was unable to determine correctly the mineral ore reserves and the economic viability of the area. The contractor must explain why, after conducting such exploration activities, it decided to file a declaration of mining feasibility, and to apply for an FTAA, thereby leading the State to believe that the area could sustain large-scale mining. The contractor must justify fully why its earlier findings, based on scientific procedures, tests and data, turned out to be wrong, or were way off. It must likewise prove that its new findings, also based on scientific tests and procedures, are correct. Right away, this puts the contractors technical capabilities and expertise into serious doubt. We wonder if anyone would relish being in this situation. The State could even question and challenge the contractors qualification and competence to continue the activity under an MPSA. All in all, while there may be cogent grounds to assail the aforecited Sections, this Court -- on considerations of due process -- cannot rule upon them here. Anyway, if later on these Sections are declared unconstitutional, such declaration will not affect the other portions since they are clearly separable from the rest.
Our Mineral Resources Not Given Away for Free by RA 7942 Nevertheless, if only to disabuse our minds, we should address the contention that our mineral resources are effectively given away for free by the law (RA 7942) in general and by Sections 80, 81, 84 and 112 in particular. Foreign contractors do not just waltz into town one day and leave the next, taking away mineral resources without paying anything . In order to get at the minerals, they have to invest huge sums of money (tens or hundreds of millions of dollars) in exploration works first. If the exploration proves unsuccessful, all the cash spent thereon will not be returned to the foreign investors; rather, those funds will have been infused into the local economy, to remain there permanently. The benefits therefrom cannot be simply ignored. And assuming that the foreign contractors are successful in finding ore bodies that are viable for commercial exploitation, they do not just pluck out the minerals and cart them off. They have first to build camp sites and roadways; dig mine shafts and connecting tunnels; prepare tailing ponds, storage areas and vehicle depots; install their machinery and equipment, generator sets, pumps, water tanks and sewer systems, and so on. In short, they need to expend a great deal more of their funds for facilities, equipment and supplies, fuel, salaries of local labor and technical staff, and other operating expenses. In the meantime, they also have to [75] pay taxes, duties, fees, and royalties. All told, the exploration, pre-feasibility, feasibility, development and [76] construction phases together add up to as many as eleven years. The contractors have to continually shell out funds for the duration of over a decade, before they can commence commercial production from which they would eventually derive revenues. All that money translates into a lot of pump-priming for the local economy. Granted that the contractors are allowed subsequently to recover their pre-operating expenses, still, that
eventuality will happen only after they shall have first put out the cash and fueled the economy. Moreover, in the process of recouping their investments and costs, the foreign contractors do not actually pull out the money from the economy. Rather, they recover or recoup their investments out of actual commercial production by not paying a portion of the basic government share corresponding to national taxes, along with [77] the additional government share, for a period of not more than five years counted from the commencement of commercial production. It must be noted that there can be no recovery without commencing actual commercial production. In the meantime that the contractors are recouping costs, they need to continue operating; in order to do so, they have to disburse money to meet their various needs. In short, money is continually infused into the economy. The foregoing discussion should serve to rid us of the mistaken belief that, since the foreign contractors are allowed to recover their investments and costs, the end result is that they practically get the minerals for free, which leaves the Filipino people none the better for it.
All Businesses Entitled to Cost Recovery Let it be put on record that not only foreign contractors, but all businessmen and all business entities in general, have to recoup their investments and costs. That is one of the first things a student learns in business school. Regardless of its nationality, and whether or not a business entity has a five-year cost recovery period, it will -- must -- have to recoup its investments, one way or another. This is just common business sense. Recovery of investments is absolutely indispensable for business survival; and business survival ensures soundness of the economy, which is critical and contributory to the general welfare of the people. Even government corporations must recoup their investments in order to survive and continue in operation. And, as the preceding discussion has shown, there is no business that gets ahead or earns profits without any cost to it. It must also be stressed that, though the State owns vast mineral wealth, such wealth is not readily accessible or transformable into usable and negotiable currency without the intervention of the credible mining companies. Those untapped mineral resources, hidden beneath tons of earth and rock, may as well not be there for all the good they do us right now. They have first to be extracted and converted into marketable form, and the country needs the foreign contractors funds, technology and know-how for that. After about eleven years of pre-operation and another five years for cost recovery, the foreign contractors will have just broken even. Is it likely that they would at that point stop their operations and leave? Certainly not. They have yet to make profits. Thus, for the remainder of the contract term, they must strive to maintain profitability. During this period, they pay the whole of the basic government share and the additional government share which, taken together with indirect taxes and other contributions, amount to approximately 60 percent or more of the entire financial benefits generated by the mining venture. In sum, we can hardly talk about foreign contractors taking our mineral resources for free. It takes a lot of hard cash to even begin to do what they do. And what they do in this country ultimately benefits the local economy, grows businesses, generates employment, and creates infrastructure , as discussed above. Hence, we definitely disagree with the sweeping claim that no FTAA under Section 81 will ever make any real contribution to the growth of the economy or to the general welfare of the country. This is not a plea for foreign contractors. Rather, this is a question of focusing the judicial spotlight squarely on all the pertinent facts as they bear upon the issue at hand, in order to avoid leaping precipitately to ill-conceived conclusions not solidly grounded upon fact.
Repatriation of After-Tax Income Another objection points to the alleged failure of the Mining Law to ensure real contributions to the economic growth and general welfare of the country, as mandated by Section 2 of Article XII of the Constitution. Pursuant to Section 81 of the law, the entire after-tax income arising from the exploitation of mineral resources owned by the State supposedly belongs to the foreign contractors, which will naturally repatriate the said after-tax income to their home countries, thereby resulting in no real contribution to the economic growth of this country. Clearly, this contention is premised on erroneous assumptions. First , as already discussed in detail hereinabove, the concerned agencies have correctly interpreted the second paragraph of Section 81 of RA 7942 to mean that the government is entitled to an additional share, to be computed based on any one of the following factors: net mining revenues, the present value of the cash flows, or excess profits reckoned against a benchmark rate of return on investments. So it is not correct to say that all of the after-tax income will accrue to the foreign FTAA contractor, as the government effectively receives a significant portion thereof. Second , the foreign contractors can hardly repatriate the entire after-tax income to their home countries. Even a bit of knowledge of corporate finance will show that it will be impossible to maintain a business as a going concern if the entire net profit earned in any particular year will be taken out and repatriated. The net income figure reflected in the bottom line is a mere accounting figure not necessarily corresponding to cash in the bank, or other quick assets. In order to produce and set aside cash in an amount equivalent to the bottom line figure, one may need to sell off assets or immediately collect receivables or liquidate short-term investments; but doing so may very likely disrupt normal business operations. In terms of cash flows, the funds corresponding to the net income as of a particular point in time are actually in use in the normal course of business operations. Pulling out such net income disrupts the cash flows and cash position of the enterprise and, depending on the amount being taken out, could seriously cripple or endanger the normal operations and financial health of the business enterprise. In short, no sane business person, concerned with maintaining the mining enterprise as a going concern and keeping a foothold in its market, can afford to repatriate the entire after-tax income to the home country.
The States Receipt of Sixty Percent of an FTAA Contractors After-Tax Income Not Mandatory We now come to the next objection which runs this way: In FTAAs with a foreign contractor, the State must receive at least 60 percent of the after-tax income from the exploitation of its mineral resources. This share is the equivalent of the constitutional requirement that at least 60 percent of the capital, and hence 60 percent of the income, of mining companies should remain in Filipino hands. First , we fail to see how we can properly conclude that the Constitution mandates the State to extract at least 60 percent of the after-tax income from a mining company run by a foreign contractor. The argument is that the Charter requires the States partner in a co-production agreement, joint venture agreement or MPSA to be a Filipino corporation (at least 60 percent owned by Filipino citizens). We question the logic of this reasoning, premised on a supposedly parallel or analogous situation. We are, after all, dealing with an essentially different equation , one that involves different elements. The Charter did not intend to fix an iron-clad rule on the 60 percent share, applicable to all situations at all times and in all circumstances. If ever such was the intention of the framers, they would have spelt it out in black
and white. Verba legis will serve to dispel unwarranted and untenable conclusions. Second, if we would bother to do the math, we might better appreciate the impact (and reasonableness) of what we are demanding of the foreign contractor. Let us use a simplified illustration. Let us base it on gross revenues of, say, P500. After deducting operating expenses, but prior to income tax, suppose a mining firm makes a taxable income of P100. A corporate income tax of 32 percent results in P32 of taxable income going to the government, leaving the mining firm with P68. Government then takes 60 percent thereof, equivalent to P40.80, leaving only P27.20 for the mining firm. At this point the government has pocketed P32.00 plus P40.80, or a total of P72.80 for every P100 of taxable income, leaving the mining firm with only P27.20. But that is not all. The government has also taken 2 percent excise tax off the top, equivalent to another P10. Under the minimum 60 percent proposal, the government nets around P82.80 (not counting other taxes, duties, fees and charges) from a taxable income of P100 (assuming gross revenues of P500, for purposes of illustration). On the other hand, the foreign contractor, which provided all the capital, equipment and labor, and took all the entrepreneurial risks -receives P27.20. One cannot but wonder whether such a distribution is even remotely equitable and reasonable, considering the nature of the mining business . The amount of P82.80 out of P100.00 is really a lot it does not matter that we call part of it excise tax or income tax , and another portion thereof income from exploitation of mineral resources . Some might think it wonderful to be able to take the lions share of the benefits. But we have to ask ourselves if we are really serious in attracting the investments that are the indispensable and key element in generating the monetary benefits of which we wish to take the lions share. Fairness is a credo not only in law, but also in business. Third, the 60 percent rule in the petroleum industry cannot be insisted upon at all times in the mining business. The reason happens to be the fact that in petroleum operations, the bulk of expenditures is in exploration, but once the contractor has found and tapped into the deposit, subsequent investments and expenditures are relatively minimal. The crude (or gas) keeps gushing out, and the work entailed is just a matter of piping, transporting and storing. Not so in mineral mining. The ore body does not pop out on its own. Even after it has been located, the contractor must continually invest in machineries and expend funds to dig and build tunnels in order to access and extract the minerals from underneath hundreds of tons of earth and rock. As already stated, the numerous intrinsic differences involved in their respective operations and requirements, cost structures and investment needs render it highly inappropriate to use petroleum operations FTAAs as benchmarks for mining FTAAs. Verily, we cannot just ignore the realities of the distinctly different situations and stubbornly insist on the minimum 60 percent.
The Mining and the Oil Industries Different From Each Other To stress, there is no independent showing that the taking of at least a 60 percent share in the after-tax income of a mining company operated by a foreign contractor is fair and reasonable under most if not all circumstances . The fact that some petroleum companies like Shell acceded to such percentage of sharing does not ipso facto mean that it is per se reasonable and applicable to non-petroleum situations (that is, mining companies) as well. We can take judicial notice of the fact that there are, after all, numerous intrinsic differences involved in their respective operations and equipment or technological requirements, costs structures and capital investment needs, and product pricing and markets. There is no showing, for instance, that mining companies can readily cope with a 60 percent government share in the same way petroleum companies apparently can. What we have is a suggestion to enforce the 60 percent quota on the basis of a disjointed analogy. The only factor common to the two disparate situations is the extraction of natural resources.
Indeed, we should take note of the fact that Congress made a distinction between mining firms and petroleum companies. In Republic Act No. 7729 -- An Act Reducing the Excise Tax Rates on Metallic and Non-Metallic Minerals and Quarry Resources, Amending for the Purpose Section 151(a) of the National Internal Revenue Code, as amended -- the lawmakers fixed the excise tax rate on metallic and non-metallic minerals at two percent of the actual market value of the annual gross output at the time of removal. However, in the case of petroleum, the lawmakers set the excise tax rate for the first taxable sale at fifteen percent of the fair international market price thereof. There must have been a very sound reason that impelled Congress to impose two very dissimilar excise tax rate. We cannot assume, without proof, that our honorable legislators acted arbitrarily, capriciously and whimsically in this instance. We cannot just ignore the reality of two distinctly different situations and stubbornly insist on going minimum 60 percent. To repeat, the mere fact that gas and oil exploration contracts grant the State 60 percent of the net revenues does not necessarily imply that mining contracts should likewise yield a minimum of 60 percent for the State. Jumping to that erroneous conclusion is like comparing apples with oranges. The exploration, development and utilization of gas and oil are simply different from those of mineral resources. To stress again, the main risk in gas and oil is in the exploration. But once oil in commercial quantities is struck and the wells are put in place, the risk is relatively over and black gold simply flows out continuously with comparatively less need for fresh investments and technology. On the other hand, even if minerals are found in viable quantities, there is still need for continuous fresh capital and expertise to dig the mineral ores from the mines. Just because deposits of mineral ores are found in one area is no guarantee that an equal amount can be found in the adjacent areas. There are simply continuing risks and need for more capital, expertise and industry all the time. Note, however, that the indirect benefits -- apart from the cash revenues -- are much more in the mineral industry. As mines are explored and extracted, vast employment is created, roads and other infrastructure are built, and other multiplier effects arise. On the other hand, once oil wells start producing, there is less need for employment. Roads and other public works need not be constructed continuously. In fine, there is no basis for saying that government revenues from the oil industry and from the mineral industries are to be identical all the time. Fourth, to our mind, the proffered minimum 60 percent suggestion tends to limit the flexibility and tie the hands of government , ultimately hampering the countrys competitiveness in the international market, to the detriment of the Filipino people. This you-have-to-give-us-60-percent-of-after-tax-income-or-we-dont-dobusiness-with-you approach is quite perilous. True, this situation may not seem too unpalatable to the foreign contractor during good years, when international market prices are up and the mining firm manages to keep its costs in check. However, under unfavorable economic and business conditions, with costs spiraling skywards and minerals prices plummeting, a mining firm may consider itself lucky to make just minimal profits. The inflexible, carved-in-granite demand for a 60 percent government share may spell the end of the mining venture, scare away potential investors, and thereby further worsen the already dismal economic scenario. Moreover, such an unbending or unyielding policy prevents the government from responding appropriately to changing economic conditions and shifting market forces. This inflexibility further renders our country less attractive as an investment option compared with other countries. And fifth, for this Court to decree imperiously that the governments share should be not less than 60 percent of the after-tax income of FTAA contractors at all times is nothing short of dictating upon the government. The result, ironically, is that the State ends up losing control . To avoid compromising the States full control and supervision over the exploitation of mineral resources, this Court must back off from insisting upon a minimum 60 percent rule. It is sufficient that the State has the power and means, should it so decide, to get a 60 percent share (or more) in the contractors net mining revenues or after-tax income, or
whatever other basis the government may decide to use in reckoning its share. It is not necessary for it to do so in every case, regardless of circumstances . In fact, the government must be trusted, must be accorded the liberty and the utmost flexibility to deal, negotiate and transact with contractors and third parties as it sees fit; and upon terms that it ascertains to be most favorable or most acceptable under the circumstances , even if it means agreeing to less than 60 percent. Nothing must prevent the State from agreeing to a share less than that, should it be deemed fit; otherwise the State will be deprived of full control over mineral exploitation that the Charter has vested in it. To stress again, there is simply no constitutional or legal provision fixing the minimum share of the government in an FTAA at 60 percent of the net profit. For this Court to decree such minimum is to wade into judicial legislation, and thereby inordinately impinge on the control power of the State. Let it be clear: the Court is not against the grant of more benefits to the State; in fact, the more the better. If during the FTAA [78] negotiations, the President can secure 60 percent, or even 90 percent, then all the better for our people. But, if under the peculiar circumstances of a specific contract, the President could secure only 50 percent or 55 percent, so be it. Needless to say, the President will have to report (and be responsible for) the specific FTAA to Congress, and eventually to the people. Finally, if it should later be found that the share agreed to is grossly disadvantageous to the government, the officials responsible for entering into such a contract on its behalf will have to answer to the courts for their malfeasance. And the contract provision voided. But this Court would abuse its own authority should it force the governments hand to adopt the 60 percent demand of some of our esteemed colleagues.
Capital and Expertise Provided, Yet All Risks Assumed by Contractor Here, we will repeat what has not been emphasized and appreciated enough: the fact that the contractor in an FTAA provides all the needed capital, technical and managerial expertise, and technology required to undertake the project. In regard to the WMCP FTAA, the then foreign-owned WMCP as contractor committed, at the very outset, to make capital investments of up to US$50 million in that single mining project. WMCP claims to have already poured in well over P800 million into the country as of February 1998, with more in the pipeline. These resources, valued in the tens or hundreds of millions of dollars, are invested in a mining project that provides no assurance whatsoever that any part of the investment will be ultimately recouped. At the same time, the contractor must comply with legally imposed environmental standards and the social obligations, for which it also commits to make significant expenditures of funds.Throughout, the [79] contractor assumes all the risks of the business, as mentioned earlier. These risks are indeed very high, considering that the rate of success in exploration is extremely low. The probability of finding any mineral or petroleum in commercially viable quantities is estimated to be about 1:1,000 only. On that slim chance rides the contractors hope of recouping investments and generating profits. And when the contractor has recouped its initial investments in the project, the government share increases to sixty percent of net benefits -- without the State ever being in peril of incurring costs, expenses and losses. And even in the worst possible scenario -- an absence of commercial quantities of minerals to justify development -- the contractor would already have spent several million pesos for exploration works, before arriving at the point in which it can make that determination and decide to cut its losses. In fact, during the first year alone of the exploration period, the contractor was already committed to spend not less than P24 million. The FTAA therefore clearly ensures benefits for the local economy, courtesy of the contractor. All in all, this setup cannot be regarded as disadvantageous to the State or the Filipino people; it
certainly cannot be said to convey beneficial ownership of our mineral resources to foreign contractors.
Deductions Allowed by the WMCP FTAA Reasonable Petitioners question whether the States weak control might render the sharing arrangements ineffective. They cite the so-called suspicious deductions allowed by the WMCP FTAA in arriving at the net mining revenue, which is the basis for computing the government share. The WMCP FTAA, for instance, allows [80] expenditures for development within and outside the Contract Area relating to the Mining Operations, consulting fees incurred both inside and outside the Philippines for work related directly to the Mining [81] Operations, and the establishment and administration of field offices including administrative overheads incurred within and outside the Philippines which are properly allocatable to the Mining Operations and reasonably related to the performance of the Contractors obligations and exercise of its rights under this [82] Agreement. It is quite well known, however, that mining companies do perform some marketing activities abroad in respect of selling their mineral products and by-products. Hence, it would not be improper to allow the deduction of reasonable consulting fees incurred abroad, as well as administrative expenses and overheads related to marketing offices also located abroad -- provided that these deductions are directly related or properly allocatable to the mining operations and reasonably related to the performance of the contractors obligations and exercise of its rights. In any event, more facts are needed. Until we see how these provisions actually operate, mere suspicions will not suffice to propel this Court into taking action.
Section 7.9 of the WMCP FTAA Invalid and Disadvantageous Having defended the WMCP FTAA, we shall now turn to two defective provisos. Let us start with Section 7.9 of the WMCP FTAA. While Section 7.7 gives the government a 60 percent share in the net mining revenues of WMCP from the commencement of commercial production, Section 7.9 deprives the government of part or all of the said 60 percent. Under the latter provision, should WMCPs foreign shareholders -- who originally owned 100 percent of the equity -- sell 60 percent or more of its outstanding capital stock to a Filipino citizen or corporation, the State loses its right to receive its 60 percent share in net mining revenues under Section 7.7. Section 7.9 provides: The percentage of Net Mining Revenues payable to the Government pursuant to Clause 7.7 shall be reduced by 1percent of Net Mining Revenues for every 1percent ownership interest in the Contractor (i.e., WMCP) held by a Qualified Entity .
[83]
Evidently, what Section 7.7 grants to the State is taken away in the next breath by Section 7.9 without any offsetting compensation to the State. Thus, in reality, the State has no vested right to receive any income from the FTAA for the exploitation of its mineral resources. Worse, it would seem that what is given to the State in Section 7.7 is by mere tolerance of WMCPs foreign stockholders, who can at any time cut off the governments entire 60 percent share. They can do so by simply selling 60 percent of WMCPs outstanding capital stock to a Philippine citizen or corporation. Moreover, the proceeds of such sale will of
course accrue to the foreign stockholders of WMCP, not to the State. The sale of 60 percent of WMCPs outstanding equity to a corporation that is 60 percent Filipino-owned and 40 percent foreign-owned will still trigger the operation of Section 7.9. Effectively, the State will lose its right to receive all 60 percent of the net mining revenues of WMCP; and foreign stockholders will own beneficially up to 64 percent of WMCP, consisting of the remaining 40 percent foreign equity therein, plus the [84] 24 percent pro-rata share in the buyer-corporation. In fact, the January 23, 2001 sale by WMCPs foreign stockholder of the entire outstanding equity in WMCP to Sagittarius Mines, Inc. -- a domestic corporation at least 60 percent Filipino owned -- may be deemed to have automatically triggered the operation of Section 7.9, without need of further action by any party, and removed the States right to receive the 60 percent share in net mining revenues. At bottom, Section 7.9 has the effect of depriving the State of its 60 percent share in the net mining revenues of WMCP without any offset or compensation whatsoever. It is possible that the inclusion of the offending provision was initially prompted by the desire to provide some form of incentive for the principal foreign stockholder in WMCP to eventually reduce its equity position and ultimately divest in favor of Filipino citizens and corporations. However, as finally structured, Section 7.9 has the deleterious effect of depriving government of the entire 60 percent share in WMCPs net mining revenues, without any form of compensation whatsoever. Such an outcome is completely unacceptable. The whole point of developing the nations natural resources is to benefit the Filipino people, future generations included. And the State as sovereign and custodian of the nations natural wealth is mandated to protect, conserve, preserve and develop that part of the national patrimony for their benefit. Hence, the Charter lays great emphasis on real contributions to the economic growth and general welfare of the [85] country as essential guiding principles to be kept in mind when negotiating the terms and conditions of FTAAs. Earlier, we held (1) that the State must be accorded the liberty and the utmost flexibility to deal, negotiate and transact with contractors and third parties as it sees fit, and upon terms that it ascertains to be most favorable or most acceptable under the circumstances, even if that should mean agreeing to less than 60 percent; (2) that it is not necessary for the State to extract a 60 percent share in every case and regardless of circumstances; and (3) that should the State be prevented from agreeing to a share less than 60 percent as it deems fit, it will be deprived of the full control over mineral exploitation that the Charter has vested in it. That full control is obviously not an end in itself; it exists and subsists precisely because of the need to serve and protect the national interest. In this instance, national interest finds particular application in the protection of the national patrimony and the development and exploitation of the countrys mineral resources for the benefit of the Filipino people and the enhancement of economic growth and the general welfare of the country. Undoubtedly, such full control can be misused and abused, as we now witness. Section 7.9 of the WMCP FTAA effectively gives away the States share of net mining revenues (provided for in Section 7.7) without anything in exchange . Moreover, this outcome constitutes unjust enrichment on the part of the local and foreign stockholders of WMCP. By their mere divestment of up to 60 percent equity in WMCP in favor of Filipino citizens and/or corporations, the local and foreign stockholders get a windfall. Their share in the net mining revenues of WMCP is automatically increased, without their having to pay the government anything for it. In short, the provision in question is without a doubt grossly disadvantageous to the government, detrimental to the interests of the Filipino people, and violative of public policy. [86] Moreover, it has been reiterated in numerous decisions that the parties to a contract may establish any agreements, terms and conditions that they deem convenient; but these should not be contrary to law, [87]
morals, good customs, public order or public policy. Being precisely violative of anti-graft provisions and contrary to public policy, Section 7.9 must therefore be stricken off as invalid. Whether the government officials concerned acceded to that provision by sheer mistake or with full awareness of the ill consequences, is of no moment. It is hornbook doctrine that the principle of estoppel [88] does not operate against the government for the act of its agents, and that it is never estopped by any [89] mistake or error on their part. It is therefore possible and proper to rectify the situation at this time. Moreover, we may also say that the FTAA in question does not involve mere contractual rights; being impressed as it is with public interest, the contractual provisions and stipulations must yield to the common good and the national interest. [90] Since the offending provision is very much separable from Section 7.7 and the rest of the FTAA, the deletion of Section 7.9 can be done without affecting or requiring the invalidation of the WMCP FTAA itself. Such a deletion will preserve for the government its due share of the benefits. This way, the mandates of the Constitution are complied with and the interests of the government fully protected, while the business operations of the contractor are not needlessly disrupted.
Section 7.8(e) of the WMCP FTAA Also Invalid and Disadvantageous Section 7.8(e) of the WMCP FTAA is likewise invalid. It provides thus: 7.8 The Government Share shall be deemed to include all of the following sums: (a) all Government taxes, fees, levies, costs, imposts, duties and royalties including excise tax, corporate income tax, customs duty, sales tax, value added tax, occupation and regulatory fees, Government controlled price stabilization schemes, any other form of Government backed schemes, any tax on dividend payments by the Contractor or its Affiliates in respect of revenues from the Mining Operations and any tax on interest on domestic and foreign loans or other financial arrangements or accommodations, including loans extended to the Contractor by its stockholders; (b) any payments to local and regional government, including taxes, fees, levies, costs, imposts, duties, royalties, occupation and regulatory fees and infrastructure contributions; (c) any payments to landowners, surface rights holders, occupiers, indigenous people or Claimowners; (d) costs and expenses of fulfilling the Contractors obligations to contribute to national development in accordance with Clause 10.1(i) (1) and 10.1(i) (2); (e) an amount equivalent to whatever benefits that may be extended in the future by the Government to the Contractor or to financial or technical assistance agreement contractors in general; (f) all of the foregoing items which have not previously been offset against the Government Share in an earlier Fiscal Year, adjusted for inflation. (underscoring supplied) Section 7.8(e) is out of place in the FTAA. It makes no sense why, for instance, money spent by the government for the benefit of the contractor in building roads leading to the mine site should still be deductible from the States share in net mining revenues. Allowing this deduction results in benefiting the contractor twice over. It constitutes unjust enrichment on the part of the contractor at the expense of the [91] government, since the latter is effectively being made to pay twice for the same item. For being grossly
disadvantageous and prejudicial to the government and contrary to public policy, Section 7.8(e) is undoubtedly invalid and must be declared to be without effect. Fortunately,
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-5279 October 31, 1955
PHILIPPINE ASSOCIATION OF COLLEGES AND UNIVERSITIES, ETC., petitioner, vs. SECRETARY OF EDUCATION and the BOARD OF TEXTBOOKS, respondents. Manuel C. Briones, Vicente G. Sinco, Manuel V. Gallego and Enrique M. Fernando for petitioner. Office of the Solicitor General Pompeyo Diaz and Assistant Solicitor General Francisco Carreon for respondents. BENGZON, J.: The petitioning colleges and universities request that Act No. 2706 as amended by Act No. 3075 and Commonwealth Act No. 180 be declared unconstitutional, because: A. They deprive owners of schools and colleges as well as teachers and parents of liberty and property without due process of law; B. They deprive parents of their natural rights and duty to rear their children for civic efficiency; and C. Their provisions conferring on the Secretary of Education unlimited power and discretion to prescribe rules and standards constitute an unlawful delegation of legislative power. A printed memorandum explaining their position in extenso is attached to the record. The Government's legal representative submitted a mimeographed memorandum contending that, (1) the matter constitutes no justiciable controversy exhibiting unavoidable necessity of deciding the constitutional questions; (2) petitioners are in estoppel to challenge the validity of the said acts; and (3) the Acts are constitutionally valid. Petitioners submitted a lengthy reply to the above arguments.
Act No. 2706 approved in 1917 is entitled, "An Act making the inspection and recognition of private schools and colleges obligatory for the Secretary of Public Instruction." Under its provisions, the Department of Education has, for the past 37 years, supervised and regulated all private schools in this country apparently without audible protest, nay, with the general acquiescence of the general public and the parties concerned. It should be understandable, then, that this Court should be doubly reluctant to consider petitioner's demand for avoidance of the law aforesaid, specially where, as respondents assert, petitioners suffered no wrongnor allege any from the enforcement of the criticized statute. It must be evident to any one that the power to declare a legislative enactment void is one which the judge, conscious of the fallability of the human judgment, will shrink from exercising in any case where he can conscientiously and with due regard to duty and official oath decline the responsibility. (Cooley Constitutional Limitations, 8th Ed., Vol. I, p. 332.) When a law has been long treated as constitutional and important rights have become dependent thereon, the Court may refuse to consider an attack on its validity. (C. J. S. 16, p. 204.) As a general rule, the constitutionality of a statute will be passed on only if, and to the extent that, it is directly and necessarily involved in a justiciable controversy and is essential to the protection of the rights of the parties concerned. (16 C. J. S., p. 207.) In support of their first proposition petitioners contend that the right of a citizen to own and operate a school is guaranteed by the Constitution, and any law requiring previous governmental approval or permit before such person could exercise said right, amounts to censorship of previous restraint, a practice abhorent to our system of law and government. Petitioners obviously refer to section 3 of Act No. 2706 as amended which provides that before a private school may be opened to the public it must first obtain a permit from the Secretary of Education. The Solicitor General on the other hand points out that none of the petitioners has cause to present this issue, because all of them have permits to operate and are actually operating by virtue of their permits.1 And they do not assert that the respondent Secretary of Education has threatened to revoke their permits. They have suffered no wrong under the terms of law and, naturally need no relief in the form they now seek to obtain.
It is an established principle that to entitle a private individual immediately in danger of sustaining a direct injury as the result of that action and it is not sufficient that he has merely a general to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is interest common to all members of the public. (Ex parte Levitt, 302 U. S. 633 82 L. Ed. 493.) Courts will not pass upon the constitutionality of a law upon the complaint of one who fails to show that he is injured by its operation. (Tyler vs. Judges, 179 U. S. 405; Hendrick vs. Maryland, 235 U. S. 610; Coffman vs. Breeze Corp., 323 U. S. 316-325.) The power of courts to declare a law unconstitutional arises only when the interests of litigant require the use of that judicial authority for their protection against actual interference, a hypothetical threat being insufficient. (United Public Works vs. Mitchell, 330 U .S. 75; 91 L. Ed. 754.) Bona fide suit.Judicial power is limited to the decision of actual cases and controversies. The authority to pass on the validity of statutes is incidental to the decision of such cases where conflicting claims under the Constitution and under a legislative act assailed as contrary to the Constitution are raised. It is legitimate only in the last resort, and as necessity in the determination of real, earnest, and vital controversy between litigants. (Taada and Fernando, Constitution of the Philippines, p. 1138.) Mere apprehension that the Secretary of Education might under the law withdraw the permit of one of petitioners does not constitute a justiciable controversy. (Cf. Com. ex rel Watkins vs. Winchester Waterworks (Ky.) 197 S. W. 2d. 771.) And action, like this, is brought for a positive purpose, nay, to obtain actual and positive relief. (Salonga vs.Warner Barnes, L-2245, January, 1951.) Courts do not sit to adjudicate mere academic questions to satisfy scholarly interest therein, however intellectually solid the problem may be. This is specially true where the issues "reach constitutional dimensions, for then there comes into play regard for the court's duty to avoid decision of constitutional issues unless avoidance becomes evasion." (Rice vs. Sioux City, U. S. Sup. Ct. Adv. Rep., May 23, 1995, Law Ed., Vol. 99, p. 511.)
The above notwithstanding, in view of the several decisions of the United States Supreme Court quoted by petitioners, apparently outlawing censorship of the kind objected to by them, we have decided to look into the matter, lest they may allege we refuse to act even in the face of clear violation of fundamental personal rights of liberty and property. Petitioners complain that before opening a school the owner must secure a permit from the Secretary of Education. Such requirement was not originally included in Act No. 2706. It was introduced by Commonwealth Act No. 180 approved in 1936. Why? In March 1924 the Philippine Legislature approved Act No. 3162 creating a Board of Educational Survey to make a study and survey of education in the Philippines and of all educational institutions, facilities and agencies thereof. A Board chairmaned by Dr. Paul Munroe, Columbia University, assisted by a staff of carefully selected technical members performed the task, made a five-month thorough and impartial examination of the local educational system, and submitted a report with recommendations, printed as a book of 671 pages. The following paragraphs are taken from such report: PRIVATE-ADVENTURE SCHOOLS There is no law or regulation in the Philippine Islands today to prevent a person, however disqualified by ignorance, greed, or even immoral character, from opening a school to teach the young. It it true that in order to post over the door "Recognized by the Government," a private adventure school must first be inspected by the proper Government official, but a refusal to grant such recognition does not by any means result in such a school ceasing to exist. As a matter of fact, there are more such unrecognized private schools than of the recognized variety. How many, no one knows, as the Division of Private Schools keeps records only of the recognized type. Conclusion.An unprejudiced consideration of the fact presented under the caption Private Adventure Schools leads but to one conclusion, viz.: the great majority of them from primary grade to university are money-making devices for the profit of those who organize and administer them. The people whose children and youth attend them are not getting what they pay for. It is obvious that the system constitutes a great evil. That it should be permitted to exist with almost no supervision is indefensible. The suggestion has been made with the reference to the private institutions of university grade that some board of
control be organized under legislative control to supervise their administration. The Commission believes that the recommendations it offers at the end of this chapter are more likely to bring about the needed reforms. Recommendations.The Commission recommends that legislation be enacted to prohibit the opening of any school by an individual or organization without the permission of the Secretary of Public Instruction. That before granting such permission the Secretary assure himself that such school measures up to proper standards in the following respects, and that the continued existence of the school be dependent upon its continuing to conform to these conditions: (1) The location and construction of the buildings, the lighting and ventilation of the rooms, the nature of the lavatories, closets, water supply, school furniture and apparatus, and methods of cleaning shall be such as to insure hygienic conditions for both pupils and teachers. (2) The library and laboratory facilities shall be adequate to the needs of instruction in the subjects taught. (3) The classes shall not show an excessive number of pupils per teacher. The Commission recommends 40 as a maximum. (4) The teachers shall meet qualifications equal to those of teachers in the public schools of the same grade. xxx xxx xxx
In view of these findings and recommendations, can there be any doubt that the Government in the exercise of its police power to correct "a great evil" could validly establish the "previous permit" system objected to by petitioners? This is what differentiates our law from the other statutes declared invalid in other jurisdictions. And if any doubt still exists, recourse may now be had to the provision of our Constitution that "All educational institutions shall be under the supervision and subject to regulation by the State." (Art. XIV, sec. 5.) The power to regulate establishments or business occupations implies the power to require a permit or license. (53 C. J. S. 4.) What goes for the "previous permit" naturally goes for the power to revoke such permit on account of violation of rules or regulations of the Department.
II. This brings us to the petitioners' third proposition that the questioned statutes "conferring on the Secretary of Education unlimited power and discretion to prescribe rules and standards constitute an unlawful delegation of legislative power." This attack is specifically aimed at section 1 of Act No. 2706 which, as amended, provides: It shall be the duty of the Secretary of Public Instruction to maintain a general standard of efficiency in all private schools and colleges of the Philippines so that the same shall furnish adequate instruction to the public, in accordance with the class and grade of instruction given in them, and for this purpose said Secretary or his duly authorized representative shall have authority to advise, inspect, and regulate said schools and colleges in order to determine the efficiency of instruction given in the same, "Nowhere in this Act" petitioners argue "can one find any description, either general or specific, of what constitutes a 'general standard of efficiency.' Nowhere in this Act is there any indication of any basis or condition to ascertain what is 'adequate instruction to the public.' Nowhere in this Act is there any statement of conditions, acts, or factors, which the Secretary of Education must take into account to determine the 'efficiency of instruction.'" The attack on this score is also extended to section 6 which provides: The Department of Education shall from time to time prepare and publish in pamphlet form the minimum standards required of primary, intermediate, and high schools, and colleges granting the degrees of Bachelor of Arts, Bachelor of Science, or any other academic degree. It shall also from time to time prepare and publish in pamphlet form the minimum standards required of law, medical, dental, pharmaceutical, engineering, agricultural and other medical or vocational schools or colleges giving instruction of a technical, vocational or professional character. Petitioners reason out, "this section leaves everything to the uncontrolled discretion of the Secretary of Education or his department. The Secretary of Education is given the power to fix the standard. In plain language, the statute turns over to the Secretary of Education the exclusive authority of the legislature to formulate standard. . . .."
It is quite clear the two sections empower and require the Secretary of Education to prescribe rules fixing minimum standards of adequate and efficient instruction to be observed by all such private schools and colleges as may be permitted to operate. The petitioners contend that as the legislature has not fixed the standards, "the provision is extremely vague, indefinite and uncertain"and for that reason constitutionality objectionable. The best answer is that despite such alleged vagueness the Secretary of Education has fixed standards to ensure adequate and efficient instruction, as shown by the memoranda fixing or revising curricula, the school calendars, entrance and final examinations, admission and accreditation of students etc.; and the system of private education has, in general, been satisfactorily in operation for 37 years. Which only shows that the Legislature did and could, validly rely upon the educational experience and training of those in charge of the Department of Education to ascertain and formulate minimum requirements of adequate instruction as the basis of government recognition of any private school. At any rate, petitioners do not show how these standards have injured any of them or interfered with their operation. Wherefore, no reason exists for them to assail the validity of the power nor the exercise of the power by the Secretary of Education. True, the petitioners assert that, the Secretary has issued rules and regulations "whimsical and capricious" and that such discretionary power has produced arrogant inspectors who "bully heads and teachers of private schools." Nevertheless, their remedy is to challenge those regulations specifically, and/or to ring those inspectors to book, in proper administrative or judicial proceedingsnot to invalidate the law. For it needs no argument, to show that abuse by the officials entrusted with the execution of a statute does not per se demonstrate the unconstitutionality of such statute. Anyway, we find the defendants' position to be sufficiently sustained by the decision in Alegra vs. Collector of Customs, 53 Phil., 394 upon holding the statute that authorized the Director of Agriculture to "designate standards for the commercial grades of abaca, maguey and sisal" against vigorous attacks on the ground of invalid delegation of legislative power. Indeed "adequate and efficient instruction" should be considered sufficient, in the same way as "public welfare" "necessary in the interest of law and order" "public interest" and "justice and equity and substantial merits of the case" have
been held sufficient as legislative standards justifying delegation of authority to regulate. (See Taada and Fernando, Constitution of the Philippines, p. 793, citing Philippine cases.) On this phase of the litigation we conclude that there has been no undue delegation of legislative power. In this connection, and to support their position that the law and the Secretary of Education have transcended the governmental power of supervision and regulation, the petitioners appended a list of circulars and memoranda issued by the said Department. However they failed to indicate which of such official documents was constitutionally objectionable for being "capricious," or pain "nuisance"; and it is one of our decisional practices that unless a constitutional point is specifically raised, insisted upon and adequately argued, the court will not consider it. (Santiago vs. Far Eastern, 73 Phil., 408.) We are told that such list will give an idea of how the statute has placed in the hands of the Secretary of Education complete control of the various activities of private schools, and why the statute should be struck down as unconstitutional. It is clear in our opinion that the statute does not in express terms give the Secretarycomplete control. It gives him powers to inspect private schools, to regulate their activities, to give them official permits to operate under certain conditions, and to revoke such permits for cause. This does not amount tocomplete control. If any of such Department circulars or memoranda issued by the Secretary go beyond the bounds of regulation and seeks to establish complete control, it would surely be invalid. Conceivably some of them are of this nature, but besides not having before us the text of such circulars, the petitioners have omitted to specify. In any event with the recent approval of Republic Act No. 1124 creating the National Board of Education, opportunity for administrative correction of the supposed anomalies or encroachments is amply afforded herein petitioners. A more expeditious and perhaps more technically competent forum exists, wherein to discuss the necessity, convenience or relevancy of the measures criticized by them. (See also Republic Act No. 176.) If however the statutes in question actually give the Secretary control over private schools, the question arises whether the power of supervision and regulation granted to the State by section 5 Article XIV was meant to include control of private educational institutions. It is enough to point out that local
educators and writers think the Constitution provides for control of Education by the State. (See Tolentino, Government of the Philippine Constitution, Vol. II, p. 615; Benitez, Philippine Social Life and Progress, p. 335.) The Constitution (it) "provides for state control of all educational institutions" even as it enumerates certain fundamental objectives of all education to wit, the development of moral character, personal discipline, civic conscience and vocational efficiency, and instruction in the duties of citizenship. (Malcolm & Laurel, Philippine Constitutional Law, 1936.) The Solicitor General cities many authorities to show that the power to regulate means power to control, and quotes from the proceedings of the Constitutional Convention to prove that State control of private education was intended by the organic law. It is significant to note that the Constitution grants power to supervise and to regulate. Which may mean greater power than mere regulation. III. Another grievance of petitionersprobably the most significantis the assessment of 1 per cent levied on gross receipts of all private schools for additional Government expenses in connection with their supervision and regulation. The statute is section 11-A of Act No. 2706 as amended by Republic Act No. 74 which reads as follows: SEC. 11-A. The total annual expense of the Office of Private Education shall be met by the regular amount appropriated in the annual Appropriation Act: Provided, however, That for additional expenses in the supervision and regulation of private schools, colleges and universities and in the purchase of textbook to be sold to student of said schools, colleges and universities and President of the Philippines may authorize the Secretary of Instruction to levy an equitable assessment from each private educational institution equivalent to one percent of the total amount accruing from tuition and other fees: . . . and non-payment of the assessment herein provided by any private school, college or university shall be sufficient cause for the cancellation by the Secretary of Instruction of the permit for recognition granted to it. Petitioners maintain that this is a tax on the exercise of a constitutional right the right to open a school, the liberty to teach etc. They claim this is unconstitutional, in the same way that taxes on the privilege of selling religious literature or of publishing a newspaperboth constitutional privilegeshave been held, in the United States, to be invalid as taxes on the exercise of a constitutional right.
The Solicitor General on the other hand argues that insofar as petitioners' action attempts to restrain the further collection of the assessment, courts have no jurisdiction to restrain the collection of taxes by injunction, and in so far as they seek to recover fees already paid the suit, it is one against the State without its consent. Anyway he concludes, the action involving "the legality of any tax impost or assessment" falls within the original jurisdiction of Courts of First Instance. There are good grounds in support of Government's position. If this levy of 1 per cent is truly a mere feeand not a taxto finance the cost of the Department's duty and power to regulate and supervise private schools, the exaction may be upheld; but such point involves investigation and examination of relevant data, which should best be carried out in the lower courts. If on the other hand it is a tax, petitioners' issue would still be within the original jurisdiction of the Courts of First Instance. The last grievance of petitioners relates to the validity of Republic Act No. 139 which in its section 1 provides: The textbooks to be used in the private schools recognized or authorized by the government shall be submitted to the Board (Board of Textbooks) which shall have the power to prohibit the use of any of said textbooks which it may find to be against the law or to offend the dignity and honor of the government and people of the Philippines, or which it may find to be against the general policies of the government, or which it may deem pedagogically unsuitable. This power of the Board, petitioners aver, is censorship in "its baldest form". They cite two U. S. cases (Miss. and Minnesota) outlawing statutes that impose previous restraints upon publication of newspapers, or curtail the right of individuals to disseminate teachings critical of government institutions or policies. Herein lies another important issue submitted in the cause. The question is really whether the law may be enacted in the exercise of the State's constitutional power (Art. XIV, sec. 5) to supervise and regulate private schools. If that power amounts to control of private schools, as some think it is, maybe the law is valid. In this connection we do not share the belief that section 5 has added new power to what the State inherently possesses by virtue of the police power. An express power is necessarily more extensive than a mere implied power. For instance, if there is conflict between an express individual
right and the express power to control private education it cannot off-hand be said that the latter must yield to the formerconflict of two express powers. But if the power to control education is merely implied from the police power, it is feasible to uphold the express individual right, as was probably the situation in the two decisions brought to our attention, of Mississippi and Minnesota, states where constitutional control of private schools is not expressly produced. However, as herein previously noted, no justiciable controversy has been presented to us. We are not informed that the Board on Textbooks has prohibited this or that text, or that the petitioners refused or intend to refuse to submit some textbooks, and are in danger of losing substantial privileges or rights for so refusing. The average lawyer who reads the above quoted section of Republic Act 139 will fail to perceive anything objectionable. Why should not the State prohibit the use of textbooks that are illegal, or offensive to the Filipinos or adverse to governmental policies or educationally improper? What's the power of regulation and supervision for? But those trained to the investigation of constitutional issues are likely to apprehend the danger to civil liberties, of possible educational dictatorship or thought control, as petitioners' counsel foresee with obvious alarm. Much depends, however, upon the execution and implementation of the statute. Not that constitutionality depends necessarily upon the law's effects. But if the Board on Textbooks in its actuations strictly adheres to the letter of the section and wisely steers a middle course between the Scylla of "dictatorship" and the Charybdis of "thought control", no cause for complaint will arise and no occasion for judicial review will develop. Anyway, and again, petitioners now have a more expeditious remedy thru an administrative appeal to the National Board of Education created by Republic Act 1124. Of course it is necessary to assure herein petitioners, that when and if, the dangers they apprehend materialize and judicial intervention is suitably invoked, after all administrative remedies are exhausted, the courts will not shrink from their duty to delimit constitutional boundaries and protect individual liberties. IV. For all the foregoing considerations, reserving to the petitioners the right to institute in the proper court, and at the proper time, such actions as may call for
decision of the issue herein presented by them, this petition for prohibition will be denied. So ordered. Paras, C. J., Padilla, Montemayor, Reyes, A., and Jugo, JJ., concur.
Footnotes Court will not pass upon the validity of statute at the instance of one who has availed itself of its benefits. (Fahey vs. Mallonee, 322 U. S. 245; 91 L. Ed. 2030; Phil. Scrappers Inc. vs. Auditor-General, 96 Phil., 449.)
2 3 1
Cf. Montenegro vs. Castaeda, 48 Off. Gaz (8) 3392.
It should be observed that petitioners may not assert complete liberty to teach, in their schools, as or what they please; because the Constitution says "All schools shall aim to develop moral character, personal discipline, civil conscience and vocational efficiency and to teach the duties of citizenship." (Art. XIV, Sec. 5.) Would petitioners assert that pursuant to their civil liberties under the Bill of Rights they may refuse to teach in their schools the duties of citizenship or that they may authorize the broadcast therein of immoral doctrines?
Republic of the Philippines SUPREME COURT Manila EN BANC
G.R. No. 118577 March 7, 1995 JUANITO MARIANO, JR. et al., petitioners, vs. THE COMMISSION ON ELECTIONS, THE MUNICIPALITY OF MAKATI, HON. JEJOMAR BINAY, THE MUNICIPAL TREASURER, AND SANGGUNIANG BAYAN OF MAKATI, respondents. G.R. No. 118627 March 7, 1995 JOHN R. OSMEA, petitioner, vs. THE COMMISSION ON ELECTIONS, THE MUNICIPALITY OF MAKATI, HON. JEJOMAR BINAY, MUNICIPAL TREASURER, AND SANGGUNIANG BAYAN OF MAKATI, respondents.
PUNO, J.: At bench are two (2) petitions assailing certain provisions of Republic Act No. 7854 as unconstitutional. R.A. No. 7854 as unconstitutional. R.A. No. 7854 is entitled, "An Act Converting the Municipality of Makati Into a Highly Urbanized City to be known as the City of Makati." 1 G.R. No. 118577 involves a petition for prohibition and declaratory relief. It was filed by petitioners Juanito Mariano, Jr., Ligaya S. Bautista, Teresita Tibay, Camilo Santos, Frankie Cruz, Ricardo Pascual, Teresita Abang, Valentina Pitalvero, Rufino Caldoza, Florante Alba, and Perfecto Alba. Of the petitioners, only Mariano, Jr., is a resident of Makati. The others are residents of Ibayo Ususan, Taguig, Metro Manila. Suing as taxpayers, they assail as unconstitutional sections 2, 51, and 52 of R.A. No. 7854 on the following grounds:
1. Section 2 of R.A. No. 7854 did not properly identify the land area or territorial jurisdiction of Makati by metes and bounds, with technical descriptions, in violation of Section 10, Article X of the Constitution, in relation to Sections 7 and 450 of the Local Government Code; 2. Section 51 of R.A. No. 7854 attempts to alter or restart the "three consecutive term" limit for local elective officials, in violation of Section 8, Article X and Section 7, Article VI of the Constitution. 3. Section 52 of R.A. No. 7854 is unconstitutional for: (a) it increased the legislative district of Makati only by special law (the Charter in violation of the constitutional provision requiring a general reapportionment law to be passed by Congress within three (3) years following the return of every census; (b) the increase in legislative district was not expressed in the title of the bill; and (c) the addition of another legislative district in Makati is not in accord with Section 5 (3), Article VI of the Constitution for as of the latest survey (1990 census), the population of Makati stands at only 450,000. G.R. No. 118627 was filed by the petitioner John H. Osmea as senator, taxpayer, and concerned citizen. Petitioner assails section 52 of R.A. No. 7854 as unconstitutional on the same grounds as aforestated. We find no merit in the petitions. I Section 2, Article I of R.A. No. 7854 delineated the land areas of the proposed city of Makati, thus: Sec. 2. The City of Makati. The Municipality of Makati shall be converted into a highly urbanized city to be known as the City of Makati, hereinafter referred to as the City, which shall comprise the present territory of the Municipality of Makati in Metropolitan Manila Area over which it has jurisdiction bounded on the northeast by Pasig River and beyond by the City of Mandaluyong and the Municipality of Pasig; on the southeast by the municipalities of Pateros and Taguig; on the southwest by the City of Pasay and the Municipality of Taguig; and, on the northwest, by the City of Manila.
The foregoing provision shall be without prejudice to the resolution by the appropriate agency or forum of existing boundary disputes or cases involving questions of territorial jurisdiction between the City of Makati and the adjoining local government units. (Emphasis supplied) In G.R. No. 118577, petitioners claim that this delineation violates sections 7 and 450 of the Local Government Code which require that the area of a local government unit should be made by metes and bounds with technical descriptions. 2 The importance of drawing with precise strokes the territorial boundaries of a local unit of government cannot be overemphasized. The boundaries must be clear for they define the limits of the territorial jurisdiction of a local government unit. It can legitimately exercise powers of government only within the limits, its acts are ultra vires. Needless to state, any uncertainty in the boundaries of local government units will sow costly conflicts in the exercise of governmental powers which ultimately will prejudice the people's welfare. This is the evil sought to avoided by the Local Government Code in requiring that the land area of a local government unit must be spelled out in metes and bounds, with technical descriptions. Given the facts of the cases at bench, we cannot perceive how this evil can be brought about by the description made in section 2 of R.A. No. 7854, Petitioners have not demonstrated that the delineation of the land area of the proposed City of Makati will cause confusion as to its boundaries. We note that said delineation did not change even by an inch the land area previously covered by Makati as a municipality. Section 2 did not add, subtract, divide, or multiply the established land area of Makati. In language that cannot be any clearer, section 2 stated that, the city's land area "shall comprise the present territory of the municipality." The deliberations of Congress will reveal that there is a legitimate reason why the land area of the proposed City of Makati was not defined by metes and bounds, with technical descriptions. At the time of the consideration of R.A. No. 7854, the territorial dispute between the municipalities of Makati and Taguig over Fort Bonifacio was under court litigation. Out of a becoming sense of respect to co-equal department of government, legislators felt that the dispute should be left to the courts to decide. They did not want to foreclose the dispute by making a legislative finding of fact which could decide the issue. This would
have ensued if they defined the land area of the proposed city by its exact metes and bounds, with technical descriptions. 3 We take judicial notice of the fact that Congress has also refrained from using the metes and bounds description of land areas of other local government units with unsettled boundary disputes. 4 We hold that the existence of a boundary dispute does not per se present an insurmountable difficulty which will prevent Congress from defining with reasonable certitude the territorial jurisdiction of a local government unit. In the cases at bench, Congress maintained the existing boundaries of the proposed City of Makati but as an act of fairness, made them subject to the ultimate resolution by the courts. Considering these peculiar circumstances, we are not prepared to hold that section 2 of R.A. No. 7854 is unconstitutional. We sustain the submission of the Solicitor General in this regard, viz.: Going now to Sections 7 and 450 of the Local Government Code, it is beyond cavil that the requirement stated therein, viz.: "the territorial jurisdiction of newly created or converted cities should be described by meted and bounds, with technical descriptions" was made in order to provide a means by which the area of said cities may be reasonably ascertained. In other words, the requirement on metes and bounds was meant merely as tool in the establishment of local government units. It is not an end in itself. Ergo, so long as the territorial jurisdiction of a city may be reasonably ascertained, i.e., by referring to common boundaries with neighboring municipalities, as in this case, then, it may be concluded that the legislative intent behind the law has been sufficiently served. Certainly, Congress did not intends that laws creating new cities must contain therein detailed technical descriptions similar to those appearing in Torrens titles, as petitioners seem to imply. To require such description in the law as a condition sine qua non for its validity would be to defeat the very purpose which the Local Government Code to seeks to serve. The manifest intent of the Code is to empower local government units and to give them their rightful due. It seeks to make local governments more responsive to the needs of their constituents while at the same time serving as a vital cog in national development. To invalidate R.A. No. 7854 on the mere ground that no cadastral type of description was used in the law would serve the letter but defeat the spirit of the Code. It then becomes a case of the master serving the slave, instead of the other way around. This could not be the intendment of the law.
Too well settled is the rule that laws must be enforced when ascertained, although it may not be consistent with the strict letter of the statute. Courts will not follow the letter of the statute when to do so would depart from the true intent of the legislature or would otherwise yield conclusions inconsistent with the general purpose of the act. (Torres v. Limjap, 56 Phil., 141; Taada v. Cuenco, 103 Phil. 1051; Hidalgo v. Hidalgo, 33 SCRA 1105). Legislation is an active instrument of government, which, for purposes of interpretation, means that laws have ends to achieve, and statutes should be so construed as not to defeat but to carry out such ends and purposes (Bocolbo v. Estanislao, 72 SCRA 520). The same rule must indubitably apply to the case at bar. II Petitioners in G.R. No. 118577 also assail the constitutionality of section 51, Article X of R.A. No. 7854. Section 51 states: Sec. 51. Officials of the City of Makati. The represent elective officials of the Municipality of Makati shall continue as the officials of the City of Makati and shall exercise their powers and functions until such time that a new election is held and the duly elected officials shall have already qualified and assume their offices: Provided, The new city will acquire a new corporate existence. The appointive officials and employees of the City shall likewise continues exercising their functions and duties and they shall be automatically absorbed by the city government of the City of Makati. They contend that this section collides with section 8, Article X and section 7, Article VI of the Constitution which provide: Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. xxx xxx xxx Sec. 7. The Members of the House of Representatives shall be elected for a term of three years which shall begin, unless otherwise provided by law, at noon on the thirtieth day of June next following their election.
No Member of the House of Representatives shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. Petitioners stress that under these provisions, elective local officials, including Members of the House of Representative, have a term of three (3) years and are prohibited from serving for more than three (3)consecutive terms. They argue that by providing that the new city shall acquire a new corporate existence, section 51 of R.A. No. 7854 restarts the term of the present municipal elective officials of Makati and disregards the terms previously served by them. In particular, petitioners point that section 51 favors the incumbent Makati Mayor, respondent Jejomar Binay, who has already served for two (2) consecutive terms. They further argue that should Mayor Binay decide to run and eventually win as city mayor in the coming elections, he can still run for the same position in 1998 and seek another three-year consecutive term since his previous threeyear consecutive term as municipal mayor would not be counted. Thus, petitioners conclude that said section 51 has been conveniently crafted to suit the political ambitions of respondent Mayor Binay. We cannot entertain this challenge to the constitutionality of section 51. The requirements before a litigant can challenge the constitutionality of a law are well delineated. They are: 1) there must be an actual case or controversy; (2) the question of constitutionality must be raised by the proper party; (3) the constitutional question must be raised at the earliest possible opportunity; and (4) the decision on the constitutional question must be necessary to the determination of the case itself. 5 Petitioners have far from complied with these requirements. The petition is premised on the occurrence of many contingent events, i.e., that Mayor Binay will run again in this coming mayoralty elections; that he would be re-elected in said elections; and that he would seek re-election for the same position in the 1998 elections. Considering that these contingencies may or may not happen, petitioners merely pose a hypothetical issue which has yet to ripen to an actual case or controversy. Petitioners who are residents of Taguig (except Mariano) are not also the proper parties to raise this abstract issue. Worse, they hoist this futuristic issue in a petition for declaratory relief over which this Court has no jurisdiction.
III Finally, petitioners in the two (2) cases at bench assail the constitutionality of section 52, Article X of R.A. No. 7854. Section 52 of the Charter provides: Sec. 52. Legislative Districts. Upon its conversion into a highly-urbanized city, Makati shall thereafter have at least two (2) legislative districts that shall initially correspond to the two (2) existing districts created under Section 3(a) of Republic Act. No. 7166 as implemented by the Commission on Elections to commence at the next national elections to be held after the effectivity of this Act. Henceforth, barangays Magallanes, Dasmarias and Forbes shall be with the first district, in lieu of Barangay Guadalupe-Viejo which shall form part of the second district. (emphasis supplied) They contend. that the addition of another legislative district in Makati is unconstitutional for: (1) reapportionment6 cannot made by a special law, (2) the addition of a legislative district is not expressed in the title of the bill 7 and (3) Makati's population, as per the 1990 census, stands at only four hundred fifty thousand (450,000). These issues have been laid to rest in the recent case of Tobias v. Abalos. 8 In said case, we ruled that reapportionment of legislative districts may be made through a special law, such as in the charter of a new city. The Constitution 9 clearly provides that Congress shall be composed of not more than two hundred fifty (250) members, unless otherwise fixed by law. As thus worded, the Constitution did not preclude Congress from increasing its membership by passing a law, other than a general reapportionment of the law. This is its exactly what was done by Congress in enacting R.A. No. 7854 and providing for an increase in Makati's legislative district. Moreover, to hold that reapportionment can only be made through a general apportionment law, with a review of all the legislative districts allotted to each local government unit nationwide, would create an inequitable situation where a new city or province created by Congress will be denied legislative representation for an indeterminate period of time. 10 The intolerable situations will deprive the people of a new city or province a particle of their sovereignty. 11 Sovereignty cannot admit of any kind of subtraction. It is indivisible. It must be forever whole or it is not sovereignty. Petitioners cannot insist that the addition of another legislative district in Makati is not in accord with section 5(3), Article VI 12 of the Constitution for as of the
latest survey (1990 census), the population of Makati stands at only four hundred fifty thousand (450,000). 13 Said section provides, inter alia, that a city with a population of at least two hundred fifty thousand (250,000) shall have at least one representative. Even granting that the population of Makati as of the 1990 census stood at four hundred fifty thousand (450,000), its legislative district may still be increased since it has met the minimum population requirement of two hundred fifty thousand (250,000). In fact, section 3 of the Ordinance appended to the Constitution provides that a city whose population has increased to more than two hundred fifty thousand (250,000) shall be entitled to at least one congressional representative. 14 Finally, we do not find merit in petitioners' contention that the creation of an additional legislative district in Makati should have been expressly stated in the title of the bill. In the same case of Tobias v. Abalos, op cit., we reiterated the policy of the Court favoring a liberal construction of the "one title-one subject" rule so as not to impede legislation. To be sure, with Constitution does not command that the title of a law should exactly mirror, fully index, or completely catalogue all its details. Hence, we ruled that "it should be sufficient compliance if the title expresses the general subject and all the provisions are germane to such general subject." WHEREFORE, the petitions are hereby DISMISSED for lack of merit No costs. SO ORDERED. Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Romero, Bellosillo, Melo, Quiason, Vitug, Kapunan, Mendoza and Francisco, JJ., concur.
Separate Opinions
DAVIDE, JR., J., concurring:
I concur in the well written opinion of Mr. Justice Reynato S. Puno. I wish, however, to add a few observations. I. Section 10, Article X of the Constitution provides that "[n]o province, city, municipality or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to the approval by a majority of the votes cast in a plebiscite in the political units directly affected." These criteria are now set forth in Section 7 of the Local Government Code of 1991 (R.A. No. 7160). One of these is that the territorial jurisdiction of the local government unit to be created or converted should be properly identified by metes and bounds with technical descriptions. The omission of R.A. No. 7854 (An Act Converting the Municipality of Makati Into a Highly Urbanized City to be Known as the City of Makati) to describe the territorial boundaries of the city by metes and bounds does not make R.A. No. 7854 unconstitutional or illegal. The Constitution does not provide for a description by metes and bounds as a condition sine qua non for the creation of a local government unit or its conversion from one level to another. The criteria provided for in Section 7 of R.A. No. 7854 are not absolute, for, as a matter of fact, the section starts with the clause "as a general rule." The petitioners' reliance on Section 450 of R.A. No. 7160 is unavailing Said section only applies to the conversion of a municipality or a cluster of barangays into a COMPONENT CITY, not a highly urbanized city. It pertinently reads as follows: Sec. 450. Requisite for creation. (a) A municipality or a cluster of barangays may be converted into a component city if it has an average annual income, as certified by the Department of Finance, of at least Twenty million pesos (P20,000,000.00) for the last two (2) consecutive years based on 1991 constant prices, and if it has either of the following requisites: xxx xxx xxx (b) The territorial jurisdiction of a newly created city shall be properly identified by metes and bounds. . . . The constitution classifies cities as either highly urbanized or component. Section 12 of Article X thereof provides:
Sec. 12. Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit their voters from voting for provincial elective officials, shall be independent of the province. The voters of component cities within a province, whose charters contain no such prohibition, shall not be deprived of their right to vote for elective provincial officials. And Section 451 of R.A. No. 7160 provides: Sec. 451. Cities Classified. A city may either be component or highly urbanized: Provided, however, That the criteria established in this Code shall not affect the classification and corporate status of existing cities. Independent component cities are those component cities whose charters prohibit their voters from voting for provincial elective officials. Independent component cities shall be independent of the province. II. Strictly speaking, the increase in the number of legislative seats for the City of Makati provided for in R.A. No. 7854 is not an increase justified by the clause unless otherwise fixed by law in paragraph 1, Section 5, Article VI of the Constitution. That clause contemplates of the reapportionment mentioned in the succeeding paragraph (4) of the said Section which reads in full as follows: Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section. In short, the clause refers to a general reapportionment law. The increase under R.A. No. 7854 is a permissible increase under Sections 1 and 3 of the Ordinance appended to the Constitution which reads: Sec. 1. For purposes of the election of Members of the House of Representatives of the First Congress of the Philippines under the Constitution proposed by the 1986 Constitutional Commissionand subsequent elections, and until otherwise provided by law, the Members thereof shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila Area as follows: METROPOLITAN MANILA AREA
xxx xxx xxx MAKATI one (1) xxx xxx xxx Sec. 3. Any province that may hereafter be created, or any city whose population may hereafter increase to more than two hundred fifty thousand shall be entitled in the immediately following election to at least one Member or such number of Members as it may be entitled to on the basis of the number of its inhabitants and according to the standards set forth in paragraph (3), Section 5 of Article VI of the Constitution. The number of Members apportioned to the province out of which such new province was created, or where the city, whose population has so increased, is geographically located shall be correspondingly adjusted by the Commission on Elections but such adjustment shall not be made within one hundred and twenty days before the election. (Emphases supplied)
Separate Opinions DAVIDE, JR., J., concurring: I concur in the well written opinion of Mr. Justice Reynato S. Puno. I wish, however, to add a few observations. I. Section 10, Article X of the Constitution provides that "[n]o province, city, municipality or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to the approval by a majority of the votes cast in a plebiscite in the political units directly affected." These criteria are now set forth in Section 7 of the Local Government Code of 1991 (R.A. No. 7160). One of these is that the territorial jurisdiction of the local government unit to be created or converted should be properly identified by metes and bounds with technical descriptions.
The omission of R.A. No. 7854 (An Act Converting the Municipality of Makati Into a Highly Urbanized City to be Known as the City of Makati) to describe the territorial boundaries of the city by metes and bounds does not make R.A. No. 7854 unconstitutional or illegal. The Constitution does not provide for a description by metes and bounds as a condition sine qua non for the creation of a local government unit or its conversion from one level to another. The criteria provided for in Section 7 of R.A. No. 7854 are not absolute, for, as a matter of fact, the section starts with the clause "as a general rule." The petitioners' reliance on Section 450 of R.A. No. 7160 is unavailing Said section only applies to the conversion of a municipality or a cluster of barangays into a COMPONENT CITY, not a highly urbanized city. It pertinently reads as follows: Sec. 450. Requisite for creation. (a) A municipality or a cluster of barangays may be converted into a component city if it has an average annual income, as certified by the Department of Finance, of at least Twenty million pesos (P20,000,000.00) for the last two (2) consecutive years based on 1991 constant prices, and if it has either of the following requisites: xxx xxx xxx (b) The territorial jurisdiction of a newly created city shall be properly identified by metes and bounds. . . . The constitution classifies cities as either highly urbanized or component. Section 12 of Article X thereof provides: Sec. 12. Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit their voters from voting for provincial elective officials, shall be independent of the province. The voters of component cities within a province, whose charters contain no such prohibition, shall not be deprived of their right to vote for elective provincial officials. And Section 451 of R.A. No. 7160 provides: Sec. 451. Cities Classified. A city may either be component or highly urbanized: Provided, however, That the criteria established in this Code shall not affect the classification and corporate status of existing cities.
Independent component cities are those component cities whose charters prohibit their voters from voting for provincial elective officials. Independent component cities shall be independent of the province. II. Strictly speaking, the increase in the number of legislative seats for the City of Makati provided for in R.A. No. 7854 is not an increase justified by the clause unless otherwise fixed by law in paragraph 1, Section 5, Article VI of the Constitution. That clause contemplates of the reapportionment mentioned in the succeeding paragraph (4) of the said Section which reads in full as follows: Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section. In short, the clause refers to a general reapportionment law. The increase under R.A. No. 7854 is a permissible increase under Sections 1 and 3 of the Ordinance appended to the Constitution which reads: Sec. 1. For purposes of the election of Members of the House of Representatives of the First Congress of the Philippines under the Constitution proposed by the 1986 Constitutional Commissionand subsequent elections, and until otherwise provided by law, the Members thereof shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila Area as follows: METROPOLITAN MANILA AREA xxx xxx xxx MAKATI one (1) xxx xxx xxx Sec. 3. Any province that may hereafter be created, or any city whose population may hereafter increase to more than two hundred fifty thousand shall be entitled in the immediately following election to at least one Member or such number of Members as it may be entitled to on the basis of the number of its inhabitants and according to the standards set forth in paragraph (3), Section 5 of Article VI of the Constitution. The number of Members apportioned
to the province out of which such new province was created, or where the city, whose population has so increased, is geographically located shall be correspondingly adjusted by the Commission on Elections but such adjustment shall not be made within one hundred and twenty days before the election. (Emphases supplied) Footnotes 1 R.A. No. 7854 is a consolidation of House Bill No. 12240 sponsored by Congressman Joker Arroyo and Senate Bill No. 1244 sponsored by Senator Vicente Sotto III. 2 Sec. 7. Creation and Conversion. As a general rule, the creation of a local government unit or its conversion from one level to another level shall be based on verifiable indicators of viability and projected capacity to provide services, to wit: xxx xxx xxx (c) Land Area. It must be contiguous, unless it comprises two (2) or more islands or is separated by a local government unit independent of the others; properly identified by metes and bounds with technical descriptions and sufficient to provide for such basic services and facilities to meet the requirements of its populace. Compliance with the foregoing indicators shall be attested to by the Department of Finance the National Statistics Office (NSO), and the Lands Management Bureau (LMB) of the Department of Environment and Natural Resources (DENR). xxx xxx xxx Sec. 450. Requisites for Creation. . . . (b) The territorial jurisdiction of a newly-created city shall be properly identified by metes and bounds. . . . 3 August 18, 1994, Senate Deliberations on H.B. No. 12240, pp. 23-28. 4 Ibid, citing as example the City of Mandaluyong. 5 Dumlao v. COMELEC, 95 SCRA 392 (19180); Cruz, Constitutional Law, 1991 ed., p. 24.
6 Section 5(4), Article VI of the Constitution provides: (4) Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section. 7 Section 26(1), Article VI of the Constitution provides: Sec. 26 (1) Every bill passed by the Congress shall, embrace only one subject which shall be expressed in the title thereof. 8 G.R. No. 114783, December 8, 1994. 9 Section 5(1), Article VI. 10 In this connection, we take judicial notice of the fact that since 1986 up to this time, Congress has yet to pass a general reapportionment law. 11 Section 1, Article II provides that "the Philippines is a democratic and republican state. Sovereignty resides in the people and all government authority from them." 12 Sec. 5. . . . (3) Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative. xxx xxx xxx 13 As per the certificate issued by Administration Tomas Africa of the National Census and Statistics Office, the population of Makati as of 1994 stood at 508,174; August 4, 1994, Senate Deliberations on House Bill No. 12240 (converting Makati into a highly urbanized city), p. 15. 14 Sec. 3 provides: "Any province that may hereafter be created, or any city whose population may hereafter increase to more than two hundred fifty thousand shall be entitled in the immediately following election to at least one Member or such number of Members as it may be entitled to on the basis of the number of its inhabitants and according to the standards set forth in paragraph (3), Section 5 of Article VI of the Constitution. The number of Members apportioned to the province out of which such new province was created or where the city, whose population has so increased, is geographically located
shall be correspondingly adjusted by the Commission on Elections but such adjustment shall not be made within one hundred, and twenty days before the election."
EN BANC
[G.R. No. 152295. July 9, 2002]
ANTONIETTE V.C. MONTESCLAROS, MARICEL CARANZO, JOSEPHINE ATANGAN, RONALD ATANGAN and CLARIZA DECENA, and OTHER YOUTH OF THE LAND SIMILARLY SITUATED, petitioners, vs. COMMISSION ON ELECTIONS, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, DEPARTMENT OF BUDGET AND MANAGEMENT, EXECUTIVE SECRETARY of the OFFICE OF THE PRESIDENT, SENATOR FRANKLIN DRILON in his capacity as Senate President and SENATOR AQUILINO PIMENTEL in his capacity as Minority Leader of the Senate of the Philippines, CONGRESSMAN JOSE DE VENECIA in his capacity as Speaker, CONGRESSMAN AGUSTO L. SYJOCO in his capacity as Chairman of the Committee on Suffrage and Electoral Reforms, and CONGRESSMAN EMILIO C. MACIAS II in his capacity as Chairman of the Committee on Local Government of the House of Representatives, THE PRESIDENT OF THE PAMBANSANG KATIPUNAN NG MGA SANGGUNIANG KABATAAN, AND ALL THEIR AGENTS AND REPRESENTATIVES, respondents. DECISION
CARPIO, J .:
The Case Before us is a petition for certiorari, prohibition and mandamus with prayer for a temporary restraining order or preliminary injunction. The petition seeks to prevent the postponement of the Sangguniang Kabataan (SK for brevity) elections originally scheduled last May 6, 2002. The petition also seeks to prevent the reduction of the age requirement for membership in the SK. Petitioners, who are all 20 years old, filed this petition as a taxpayers and class suit, on their own behalf and on behalf of other youths similarly situated. Petitioners claim that they are in danger of being disqualified to vote and be voted for in the SK elections should the SK elections on May 6, 2002 be postponed to a later date. Under the Local Government Code of 1991 (R.A. No. 7160), membership in the SK is limited to youths at least 15 but not more than 21 years old. Petitioners allege that public respondents connived, confederated and conspired to postpone the May 6, 2002 SK elections and to lower the membership age in the SK to at least 15 but less than 18 years of age. Petitioners assail the alleged conspiracy because youths at least 18 but not more than 21 years old will be summarily and unduly dismembered, unfairly discriminated, unnecessarily disenfranchised, unjustly disassociated and obnoxiously disqualified from the SK organization.[1] Thus, petitioners pray for the issuance of a temporary restraining order or preliminary injunction -
a) To prevent, annul or declare unconstitutional any law, decree, Comelec resolution/directive and other respondents issuances, orders and actions and the like in postponing the May 6, 2002 SK elections. b) To command the respondents to continue the May 6, 2002 SK elections set by the present law and in accordance with Comelec Resolutions No. 4713 and 4714 and to expedite the funding of the SK elections. c) In the alternative, if the SK elections will be postponed for whatever reason, there must be a definite date for said elections, for example, July 15, 2002, and the present SK membership, except those incumbent SK officers who were elected on May 6, 1996, shall be allowed to run for any SK elective position even if they are more than 21 years old. d) To direct the incumbent SK officers who are presently representing the SK in every sanggunian and the NYC to vacate their post after the barangay elections.[2]
The Facts The SK is a youth organization originally established by Presidential Decree No. 684 as the Kabataang Barangay (KB for brevity). The KB was composed of all barangay residents who were less than 18 years old, without specifying the minimum age. The KB was organized to provide its members with the opportunity to express their views and opinions on issues of transcendental importance.[3] The Local Government Code of 1991 renamed the KB to SK and limited SK membership to those youths at least 15 but not more than 21 years of age. [4] The SK remains as a youth organization in every barangay tasked to initiate programs to enhance the social, political, economic, cultural, intellectual, moral, spiritual, and physical development of the youth.[5] The SK in every barangay is composed of a chairperson and seven members, all elected by the Katipunan ng Kabataan . The Katipunan ng Kabataan in every barangay is composed of all citizens actually residing in the barangay for at least six months and who meet the membership age requirement. The first SK elections took place on December 4, 1992. RA No. 7808 reset the SK elections to the first Monday of May of 1996 and every three years thereafter. RA No. 7808 mandated the Comelec to supervise the conduct of the SK elections under rules the Comelec shall promulgate. Accordingly, the Comelec on December 4, 2001 issued Resolution Nos. 4713[6] and 4714[7] to govern the SK elections on May 6, 2002. On February 18, 2002, petitioner Antoniette V.C. Montesclaros (Montesclaros for brevity) sent a letter[8] to the Comelec, demanding that the SK elections be held as scheduled on May 6, 2002. Montesclaros also urged the Comelec to respond to her letter within 10 days upon receipt of the letter, otherwise, she will seek judicial relief. On February 20, 2002, Alfredo L. Benipayo (Chairman Benipayo for brevity), then Comelec Chairman, wrote identical letters to the Speaker of the House [9] and the Senate President[10] about the status of pending bills on the SK and Barangay elections. In his letters, the Comelec Chairman intimated that it was operationally very difficult to hold both elections simultaneously in May 2002. Instead, the Comelec Chairman expressed support for the bill of Senator Franklin Drilon that proposed to hold the Barangay elections in May 2002 and postpone the SK elections to November 2002. Ten days lapsed without the Comelec responding to the letter of Montesclaros. Subsequently, petitioners received a copy of Comelec En Banc Resolution No. 4763[11] dated February 5, 2002 recommending to Congress the postponement of the SK elections to November 2002 but holding the Barangay elections in May 2002 as scheduled. [12] On March 6, 2002, the Senate and the House of Representatives passed their respective bills
postponing the SK elections. On March 11, 2002, the Bicameral Conference Committee (Bicameral Committee for brevity) of the Senate and the House came out with a Report [13] recommending approval of the reconciled bill consolidating Senate Bill No. 2050[14] and House Bill No. 4456. [15] The Bicameral Committees consolidated bill reset the SK and Barangay elections to July 15, 2002 and lowered the membership age in the SK to at least 15 but not more than 18 years of age. On March 11, 2002, petitioners filed the instant petition. On March 11, 2002, the Senate approved the Bicameral Committees consolidated bill and on March 13, 2002, the House of Representatives approved the same. The President signed the approved bill into law on March 19, 2002.
The Issues Petitioners[16] raise the following grounds in support of their petition:
I.
RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND UNCONSTITUTIONALLY THUS CONSTITUTED (SIC) WITH GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN THEY INTENDED TO POSTPONE THE SK ELECTIONS.
II.
RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND UNCONSTITUTIONALLY THUS CONSTITUTED (SIC) WITH GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN THEY INTENDED TO DISCRIMINATE, DISENFRANCHISE, SINGLE OUT AND DISMEMBER THE SK MEMBERS WHO ARE 18 BUT NOT LESS[17] (SIC) THAN 21 YEARS OLD COMPOSED OF ABOUT 7 MILLION YOUTH.
III.
RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND UNCONSTITUTIONALLY THUS CONSTITUTED (SIC) WITH GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN THEY WILLFULLY FAILED TO FUND THE SK ELECTION PURPORTEDLY TO POSTPONE THE SAME IN ORDER TO IMPLEMENT THEIR ILLEGAL SCHEME AND MACHINATION IN SPITE OF THE FACT THAT THERE ARE AVAILABLE FUNDS FOR THE PURPOSE.
IV.
THE INCUMBENT SK OFFICERS WANTED TO PERPETUALLY SIT ON THEIR RESPECTIVE OFFICES CONTRARY TO THE ENVISION (SIC) OF THE CREATION OF THE SK ORGANIZATION, HENCE, IN VIOLATION OF LAW AND CONSTITUTION.[18]
The Courts Ruling The petition is bereft of merit. At the outset, the Court takes judicial notice of the following events that have transpired since petitioners filed this petition:
1. The May 6, 2002 SK elections and May 13, 2002 Barangay elections were not held as scheduled.
2. Congress enacted RA No. 9164 [19] which provides that voters and candidates for the SK elections must be at least 15 but less than 18 years of age on the day of the election.[20] RA No. 9164 also provides that there shall be a synchronized SK and Barangay elections on July 15, 2002. 3. The Comelec promulgated Resolution No. 4846, the rules and regulations for the conduct of the July 15, 2002 synchronized SK and Barangay elections.
Petitioners, who all claim to be 20 years old, argue that the postponement of the May 6, 2002 SK elections disenfranchises them, preventing them from voting and being voted for in the SK elections. Petitioners theory is that if the SK elections were postponed to a date later than May 6, 2002, the postponement would disqualify from SK membership youths who will turn 21 years old between May 6, 2002 and the date of the new SK elections. Petitioners claim that a reduction in the SK membership age to 15 but less than 18 years of age from the then membership age of 15 but not more than 21 years of age would disqualify about seven million youths. The public respondents failure to hold the elections on May 6, 2002 would prejudice petitioners and other youths similarly situated. Thus, petitioners instituted this petition to: (1) compel public respondents to hold the SK elections on May 6, 2002 and should it be postponed, the SK elections should be held not later than July 15, 2002; (2) prevent public respondents from passing laws and issuing resolutions and orders that would lower the membership age in the SK; and (3) compel public respondents to allow petitioners and those who have turned more than 21 years old on May 6, 2002 to participate in any re-scheduled SK elections. The Courts power of judicial review may be exercised in constitutional cases only if all the following requisites are complied with, namely: (1) the existence of an actual and appropriate case or controversy; (2) a personal and substantial interest of the party raising the constitutional question; (3) the exercise of judicial review is pleaded at the earliest opportunity; and (4) the constitutional question is the lis mota of the case. [21] In the instant case, there is no actual controversy requiring the exercise of the power of judicial review. While seeking to prevent a postponement of the May 6, 2002 SK elections, petitioners are nevertheless amenable to a resetting of the SK elections to any date not later than July 15, 2002. RA No. 9164 has reset the SK elections to July 15, 2002, a date acceptable to petitioners. With respect to the date of the SK elections, there is therefore no actual controversy requiring judicial intervention. Petitioners prayer to prevent Congress from enacting into law a proposed bill lowering the membership age in the SK does not present an actual justiciable controversy. A proposed bill is not subject to judicial review because it is not a law. A proposed bill creates no right and imposes no duty legally enforceable by the Court. A proposed bill, having no legal effect, violates no constitutional right or duty. The Court has no power to declare a proposed bill constitutional or unconstitutional because that would be in the nature of rendering an advisory opinion on a proposed act of Congress. The power of judicial review cannot be exercised in vacuo. [22] The second paragraph of Section 1, Article VIII of the Constitution states Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Emphasis supplied) Thus, there can be no justiciable controversy involving the constitutionality of a proposed bill. The Court can exercise its power of judicial review only after a law is enacted, not before. Under the separation of powers, the Court cannot restrain Congress from passing any law, or from setting into motion the legislative mill according to its internal rules. Thus, the following acts of Congress in the exercise of its legislative powers are not subject to judicial restraint: the filing of bills by members of Congress, the approval of bills by each chamber of Congress, the reconciliation by the Bicameral Committee of approved bills, and the eventual approval into law of the reconciled bills by each chamber of Congress.
Absent a clear violation of specific constitutional limitations or of constitutional rights of private parties, the Court cannot exercise its power of judicial review over the internal processes or procedures of Congress.[23] The Court has also no power to dictate to Congress the object or subject of bills that Congress should enact into law. The judicial power to review the constitutionality of laws does not include the power to prescribe to Congress what laws to enact. The Court has no power to compel Congress by mandamus to enact a law allowing petitioners, regardless of their age, to vote and be voted for in the July 15, 2002 SK elections. To do so would destroy the delicate system of checks and balances finely crafted by the Constitution for the three co-equal, coordinate and independent branches of government. Under RA No. 9164, Congress merely restored the age requirement in PD No. 684, the original charter of the SK, which fixed the maximum age for membership in the SK to youths less than 18 years old. Petitioners do not have a vested right to the permanence of the age requirement under Section 424 of the Local Government Code of 1991. Every law passed by Congress is always subject to amendment or repeal by Congress. The Court cannot restrain Congress from amending or repealing laws, for the power to make laws includes the power to change the laws. [24] The Court cannot also direct the Comelec to allow over-aged voters to vote or be voted for in an election that is limited under RA No. 9164 to youths at least 15 but less than 18 years old. A law is needed to allow all those who have turned more than 21 years old on or after May 6, 2002 to participate in the July 15, 2002 SK elections. Youths from 18 to 21 years old as of May 6, 2002 are also no longer SK members, and cannot participate in the July 15, 2002 SK elections. Congress will have to decide whether to enact an amendatory law. Petitioners remedy is legislation, not judicial intervention. Petitioners have no personal and substantial interest in maintaining this suit. A party must show that he has been, or is about to be denied some personal right or privilege to which he is lawfully entitled. [25] A party must also show that he has a real interest in the suit. By real interest is meant a present substantial interest, as distinguished from a mere expectancy or future, contingent, subordinate, or inconsequential interest.[26] In the instant case, petitioners seek to enforce a right originally conferred by law on those who were at least 15 but not more than 21 years old. Now, with the passage of RA No. 9164, this right is limited to those who on the date of the SK elections are at least 15 but less than 18 years old. The new law restricts membership in the SK to this specific age group. Not falling within this classification, petitioners have ceased to be members of the SK and are no longer qualified to participate in the July 15, 2002 SK elections. Plainly, petitioners no longer have a personal and substantial interest in the SK elections. This petition does not raise any constitutional issue. At the time petitioners filed this petition, RA No. 9164, which reset the SK elections and reduced the age requirement for SK membership, was not yet enacted into law. After the passage of RA No. 9164, petitioners failed to assail any provision in RA No. 9164 that could be unconstitutional. To grant petitioners prayer to be allowed to vote and be voted for in the July 15, 2002 SK elections necessitates assailing the constitutionality of RA No. 9164. This, petitioners have not done. The Court will not strike down a law unless its constitutionality is properly raised in an appropriate action and adequately argued. [27] The only semblance of a constitutional issue, albeit erroneous, that petitioners raise is their claim that SK membership is a property right within the meaning of the Constitution. [28] Since certain public offices are reserved for SK officers, petitioners also claim a constitutionally protected opportunity to occupy these public offices. In petitioners own words, they and others similarly situated stand to lose their opportunity to work in the government positions reserved for SK members or officers. [29] Under the Local Government Code of 1991, the president of the federation of SK organizations in a municipality, city or province is an exofficio member of the municipal council, city council or provincial board, respectively.[30] The chairperson of the SK in the barangay is an ex-officio member of the Sangguniang Barangay.[31] The president of the national federation of SK organizations is an ex-officio member of the National Youth Commission, with rank
of a Department Assistant Secretary.[32] Congress exercises the power to prescribe the qualifications for SK membership. One who is no longer qualified because of an amendment in the law cannot complain of being deprived of a proprietary right to SK membership. Only those who qualify as SK members can contest, based on a statutory right, any act disqualifying them from SK membership or from voting in the SK elections. SK membership is not a property right protected by the Constitution because it is a mere statutory right conferred by law. Congress may amend at any time the law to change or even withdraw the statutory right. A public office is not a property right. As the Constitution expressly states, a [P]ublic office is a public trust.[33] No one has a vested right to any public office, much less a vested right to an expectancy of holding a public office. In Cornejo v. Gabriel , [34] decided in 1920, the Court already ruled: Again, for this petition to come under the due process of law prohibition, it would be necessary to consider an office a property. It is, however, well settled x x x that a public office is not property within the sense of the constitutional guaranties of due process of law, but is a public trust or agency. x x x The basic idea of the government x x x is that of a popular representative government, the officers being mere agents and not rulers of the people, one where no one man or set of men has a proprietary or contractual right to an office, but where every officer accepts office pursuant to the provisions of the law and holds the office as a trust for the people he represents. (Emphasis supplied) Petitioners, who apparently desire to hold public office, should realize from the very start that no one has a proprietary right to public office. While the law makes an SK officer an ex-officio member of a local government legislative council, the law does not confer on petitioners a proprietary right or even a proprietary expectancy to sit in local legislative councils. The constitutional principle of a public office as a public trust precludes any proprietary claim to public office. Even the State policy directing equal access to opportunities for public service [35] cannot bestow on petitioners a proprietary right to SK membership or a proprietary expectancy to ex-officio public offices. Moreover, while the State policy is to encourage the youths involvement in public affairs, [36] this policy refers to those who belong to the class of people defined as the youth. Congress has the power to define who are the youth qualified to join the SK, which itself is a creation of Congress. Those who do not qualify because they are past the age group defined as the youth cannot insist on being part of the youth. In government service, once an employee reaches mandatory retirement age, he cannot invoke any property right to cling to his office. In the same manner, since petitioners are now past the maximum age for membership in the SK, they cannot invoke any property right to cling to their SK membership. The petition must also fail because no grave abuse of discretion attended the postponement of the SK elections. RA No. 9164 is now the law that prescribes the qualifications of candidates and voters for the SK elections. This law also fixes the date of the SK elections. Petitioners are not even assailing the constitutionality of RA No. 9164. RA No. 9164 enjoys the presumption of constitutionality and will apply to the July 15, 2002 SK elections. Petitioners have not shown that the Comelec acted illegally or with grave abuse of discretion in recommending to Congress the postponement of the SK elections. The very evidence relied upon by petitioners contradict their allegation of illegality. The evidence consist of the following: (1) Comelec en banc Resolution No. 4763 dated February 5, 2002 that recommended the postponement of the SK elections to 2003; (2) the letter of then Comelec Chairman Benipayo addressed to the Speaker of the House of Representatives and the President of the Senate; and (3) the Conference Committee Report consolidating Senate Bill No. 2050 and House Bill No. 4456. The Comelec exercised its power and duty to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall [37] and to recommend to Congress effective measures to minimize election spending.[38] The Comelecs acts enjoy the presumption of
regularity in the performance of official duties. [39] These acts cannot constitute proof, as claimed by petitioners, that there exists a connivance and conspiracy (among) respondents in contravention of the present law. As the Court held in Pangkat Laguna v. Comelec, [40] the Comelec, as the government agency tasked with the enforcement and administration of elections laws, is entitled to the presumption of regularity of official acts with respect to the elections. The 1987 Constitution imposes upon the Comelec the duty of enforcing and administering all laws and regulations relative to the conduct of elections. Petitioners failed to prove that the Comelec committed grave abuse of discretion in recommending to Congress the postponement of the May 6, 2002 SK elections. The evidence cited by petitioners even establish that the Comelec has demonstrated an earnest effort to address the practical problems in holding the SK elections on May 6, 2002. The presumption remains that the decision of the Comelec to recommend to Congress the postponement of the elections was made in good faith in the regular course of its official duties. Grave abuse of discretion is such capricious and whimsical exercise of judgment that is patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law. [41] Public respondents having acted strictly pursuant to their constitutional powers and duties, we find no grave abuse of discretion in their assailed acts. Petitioners contend that the postponement of the SK elections would allow the incumbent SK officers to perpetuate themselves in power, depriving other youths of the opportunity to serve in elective SK positions. This argument deserves scant consideration. While RA No. 9164 contains a hold-over provision, incumbent SK officials can remain in office only until their successors have been elected or qualified. On July 15, 2002, when the SK elections are held, the hold-over period expires and all incumbent SK officials automatically cease to hold their SK offices and their ex-officio public offices. In sum, petitioners have no personal and substantial interest in maintaining this suit. This petition presents no actual justiciable controversy. Petitioners do not cite any provision of law that is alleged to be unconstitutional. Lastly, we find no grave abuse of discretion on the part of public respondents. WHEREFORE, the petition is DISMISSED for utter lack of merit. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, YnaresSantiago, Sandoval-Gutierrez, Austria-Martinez, and Corona, JJ., concur.
[1] Rollo , pp. 4-5. [2] Ibid., pp. 14-15. [3] Second Whereas Clause of PD No. 684; See also Mercado vs. Board of Election Supervisors of Ibaan, Batangas, 243 SCRA
422 (1995).
[4] This was the same membership qualification in Section 116 of the Local Government Code of 1983. Earlier, PD No. 1102,
issued on February 28, 1977, had increased the age requirement to twenty-one years of age or less.
[5] Section 426 of the Local Government Code enumerates the powers and functions of the Sangguniag Kabataan as follows:
Section 426. Powers and Functions of the Sangguniang Kabataan. The Sangguniang Kabataan shall: (a) Promulgate resolutions necessary to carry out the objectives of the youth in the barangay in accordance with the applicable provisions of this Code; (b) Initiate programs designed to enhance the social, political, economic, cultural, intellectual, moral, spiritual, and physical development of the members; (c) Hold fund-raising activities, the proceeds of which shall be tax-exempt and shall accrue to the general fund of the sangguniang kabataan : Provided, however, That in the appropriation thereof, the specific purpose for which such activity has been held shall be first satisfied; (d) Create such bodies or committees as it may deem necessary to effectively carry out its programs and activities; (e) Submit annual and end-of-term reports to the sangguniang barangay on their projects and activities for the survival and development of the youth in the barangay; (f) Consult and coordinate with all youth organizations in the barangay for policy formulation and program implementation; (g) Coordinate with the appropriate national agency for the implementation of
youth development projects and programs at the national level; (h) Exercise such other powers and perform such other duties and functions as the sangguniang barangay may determine or delegate; and (i) Exercise such other powers and perform such other duties and functions as may be prescribed by law or ordinance.
[6] Rollo , pp. 47-55. Resolution No. 4713 is entitled Rules and Regulation on the Registration of Members of the Katipunan ng
Kabataan in Connection with the May 6, 2002 Election of Members of the Sangguniang Kabataan.
[7] Ibid., pp. 56-61. Resolution No. 4714 is entitled Calendar of Activities and Periods of Certain Prohibited Acts in Connection with
the May 6, 2002 Election of Members of the Sangguniang Kabataan.

[8] Ibid. , pp. 62-63. [9] Ibid. , p. 64. [10] Ibid. , p. 65. [11] Entitled In Re: Position of the Commission on Elections on the Postponement or Synchronization of the Barangay and
Sangguniang Kabataan (SK) Elections within the year 2002.

[12] Ibid. , pp. 66-68. [13] Ibid. , pp. 69-71. [14] An Act amending Republic Act No. 7160, otherwise known as the `Local Government Code of 1991, as amended, resetting
the elections of the Sangguniang Kabataan officials to the first Monday of November, 2002, and for other purposes.
[15] An Act providing for a synchronized Barangay and Sangguniang Kabataan elections on the second Monday of November
2002, repealing Republic Act No. 8524, and for other purposes.
[16] Represented by Atty. Abraham A. Mantilla. [17] This should read more. [18] Rollo , pp. 25-26. [19] An Act Providing for Synchronized Barangay and Sangguniang Kabataan Elections, Amending Republic Act No. 7160, As
Amended, Otherwise Known As `The Local Government Code of 1991, And For Other Purposes.
[20] Sections 6 and 7 of RA No. 9164. [21] Integrated Bar of the Philippines vs. Zamora, 338 SCRA 81 (2000). [22] Allied Broadcasting Center, Inc. v. Republic, 190 SCRA 782 (1990). [23] Santiago v. Guingona, 298 SCRA 756 (1998); See also Arroyo v. De Venecia, 277 SCRA 268 (1997); Tolentino v. Secretary
of Finance, 249 SCRA 628 (1995).

[24] Isagani A. Cruz, Philippine Political Law, 1998 Ed., p. 152. [25] Bayan (Bagong Alyansang Makabayan) v. Zamora, 342 SCRA 449 (2000). [26] Caruncho III v. Commission on Elections, 315 SCRA 693 (1999). [27] See Reyes v. Court of Appeals, 320 SCRA 486 (1999). [28] Petition dated March 11, 2002, p. 3; Rollo , p. 8. [29] Ibid. [30] Section 438, Local Government Code of 1991. [31] Section 390, Local Government Code of 1991. [32] Section 5, RA No. 8044. [33] Section 1, Article XI of the 1987 Constitution.
[34] 41 Phil. 188 (1920). [35] Section 26, Article II of the 1987 Constitution. [36] Section 13, Article II of the 1987 Constitution. [37] Section 2, paragraph (1), Article IX-C of the 1987 Constitution. [38] Section 2, paragraph (7), Article IX-C of the 1987 Constitution. [39] Salcedo vs. Comelec, 312 SCRA 447 (1999). [40] G.R. No. 148075, February 4, 2002. [41] Integrated Bar of the Philippines v. Zamora, see note 21.
EN BANC
[G.R. No. 93100. June 19, 1997]
ATLAS FERTILIZER CORPORATION, petitioner, vs . THE HONORABLE SECRETARY OF THE DEPARTMENT OF AGRARIAN REFORM, respondent .
[G.R. No. 97855. June 19, 1997]
PHILIPPINE FEDERATION OF FISHFARM PRODUCERS, INC., petitioner, vs. THE HONORABLE SECRETARY OF THE DEPARTMENT OF AGRARIAN REFORM, respondent. RESOLUTION
ROMERO, J .:
Before this Court are consolidated petitions questioning the constitutionality of some portions of Republic Act No. 6657 otherwise known as the Comprehensive Agrarian Reform Law.[1] Petitioners Atlas Fertilizer Corporation, [2] Philippine Federation of Fishfarm Producers, Inc. and petitioner-in-intervention Archies Fishpond, Inc. and Arsenio Al. Acuna [3] are engaged in the aquaculture industry utilizing fishponds and prawn farms. They assail Sections 3 (b), 11, 13, 16 (d), 17 and 32 of R.A. 6657, as well as the implementing guidelines and procedures contained in Administrative Order Nos. 8 and 10 Series of 1988 issued by public respondent Secretary of the Department of Agrarian Reform as unconstitutional. Petitioners claim that the questioned provisions of CARL violate the Constitution in the following manner: 1. Sections 3 (b), 11, 13, 16 (d), 17 and 32 of CARL extend agrarian reform to aquaculture lands even as Section 4, Article XIII of the constitution limits agrarian reform only to agriculture lands. 2. The questioned provisions similarly treat of aquaculture lands and agriculture lands when they are differently situated, and differently treat aquaculture lands and other industrial lands, when they are similarly situated in violation of the constitutional guarantee of the equal protection of the laws. 3. The questioned provisions distort employment benefits and burdens in favor of aquaculture employees and against other industrial workers even as Section 1 and 3, Article XIII of the Constitution mandate the State to promote equality in economic and employment opportunities. 4. The questioned provisions deprive petitioner of its government-induced investments in aquaculture even as Sections 2 and 3, Article XIII of the Constitution mandate the State to respect the freedom of enterprise and the right of enterprises to reasonable returns on investments and to expansion and growth. The constitutionality of the above-mentioned provisions has been ruled upon in the case of Luz Farms,
Inc. v. Secretary of Agrarian Reform [4] regarding the inclusion of land devoted to the raising of livestock, poultry and swine in its coverage. The issue now before this Court is the constitutionality of the same above-mentioned provisions insofar as they include in its coverage lands devoted to the aquaculture industry, particularly fishponds and prawn farms. In their first argument, petitioners contend that in the case of Luz Farms, Inc. v. Secretary of Agrarian Reform, [5] this Court has already ruled impliedly that lands devoted to fishing are not agriculture lands. In aquaculture, fishponds and prawn farms, the use of land is only incidental to and not the principal factor in productivity and, hence, as held in Luz Farms, they too should be excluded from R.A. 6657 just as lands devoted to livestock, swine, and poultry have been excluded for the same reason. They also argue that they are entitled to the full benefit of Luz Farms to the effect that only five percent of the total investment in aquaculture activities, fishponds, and prawn farms, is in the form of land, and therefore, cannot be classified as agricultural activity. Further, that in fishponds and prawn farms, there are no farmers, nor farm workers, who till lands, and no agrarian unrest, and therefore, the constitutionally intended beneficiaries under Section 4, Art. XIII, 1987 Constitution do not exist in aquaculture. In their second argument, they contend that R.A. 6657, by including in its coverage, the raising of fish and aquaculture operations including fishponds and prawn ponds, treating them as in the same class or classification as agriculture or farming violates the equal protection clause of the Constitution and is, therefore, void. Further, the Constitutional Commission debates show that the intent of the constitutional framers is to exclude industrial lands, to which category lands devoted to aquaculture, fishponds, and fish farms belong. Petitioners also claim that Administrative Order Nos. 8 and 10 issued by the Secretary of the Department of Agrarian Reform are, likewise, unconstitutional, as held in Luz Farms, and are therefore void as they implement the assailed provisions of CARL. The provisions of CARL being assailed as unconstitutional are as follows: (a) Section 3(b) which includes the raising of fish in the definition of Agricultural, Agricultural Enterprise or Agricultural Activity. (Underscoring Supplied) (b) Section 11 which defines commercial farms as private agricultural lands devoted to fishponds and prawn ponds x x x. (Underscoring Supplied) (c) Section 13 which calls upon petitioner to execute a production-sharing plan. (d) Section 16 (d) and 17 which vest on the Department of Agrarian reform the authority to summarily determine the just compensation to be paid for lands covered by the comprehensive Agrarian reform Law. (e) Section 32 which spells out the production-sharing plan mentioned in Section 13x x x (W)hereby three percent (3%) of the gross sales from the production of such lands are distributed within sixty (60) days at the end of the fiscal year as compensation to regular and other farmworkers in such lands over and above the compensation they currently receive: Provided, That these individuals or entities realize gross sales in excess of five million pesos per annum unless the DAR, upon proper application, determines a lower ceiling. In the event that the individual or entity realizes a profit, an additional ten percent (10%) of the net profit after tax shall be distributed to said regular and other farmworkers within ninety (90) days of the end of the fiscal year. x x x While the Court will not hesitate to declare a law or an act void when confronted squarely with constitutional issues, neither will it preempt the Legislative and the Executive branches of the government in correcting or clarifying, by means of amendment, said law or act. On February 20, 1995, Republic Act No.
7881[6] was approved by Congress. Provisions of said Act pertinent to the assailed provisions of CARL are the following: Section 1. Section 3, Paragraph (b) of Republic Act No. 6657 is hereby amended to read as follows: Sec. 3. Definitions. -- For the purpose of this Act, unless the context indicates otherwise: (b) Agriculture, Agricultural Enterprise or Agricultural Activity means the cultivation of the soil, planting of crops, growing of fruit trees, including the harvesting of such farm products and other farm activities and practices performed by a farmer in conjunction with such farming operations done by persons whether natural or juridical. Sec. 2. Section 10 of Republic Act No. 6657 is hereby amended to read as follows: Sec. 10. Exemptions and Exclusions.-xxx xxx xxx b) Private lands actually, directly and exclusively used for prawn farms and fishponds shall be exempt from the coverage of this Act: Provided, That said prawn farms and fishponds have not been distributed and Certificate of Land Ownership Award (CLOA) issued to agrarian reform beneficiaries under the Comprehensive Agrarian Reform Program. In cases where the fishponds or prawn farms have been subjected to the Comprehensive Agrarian Reform Law, by voluntary offer to sell, or commercial farms deferment or notices of compulsory acquisition, a simple and absolute majority of the actual regular workers or tenants must consent to the exemption within one (1) year from the effectivity of this Act. When the workers or tenants do not agree to this exemption, the fishponds or prawn farms shall be distributed collectively to the worker-beneficiaries or tenants who shall form a cooperative or association to manage the same. In cases where the fishponds or prawn farms have not been subjected to the Comprehensive Agrarian Reform Law, the consent of the farm workers shall no longer be necessary, however, the provision of Section 32-A hereof on incentives shall apply. xxx xxx xxx Sec. 3. Section 11, paragraph 1 is hereby amended to read as follows: Sec. 11. Commercial Farming.-- Commercial Farms, which are private agricultural lands devoted to salt beds, fruit farms, orchards, vegetable and cut-flower farms, and cacao, coffee and rubber plantations, shall be subject to immediate compulsory acquisition and distribution after ten (10) years from the effectivity of this Act. In the case of new farms, the ten-year period shall begin from the first year of commercial production and operation, as determined by the DAR. During the ten-year period, the Government shall initiate steps necessary to acquire these lands, upon payment of just compensation for the land and the improvements thereon, preferably in favor of organized cooperatives or associations, which shall thereafter manage the said lands for the workers-beneficiaries. Sec. 4. There shall be incorporated after Section 32 of Republic Act No. 6657 a section to read as follows: Sec. 32-A. Incentives.-- Individuals or entities owning or operating fishponds and prawn farms are hereby mandated to execute within six (6) months from the effectivity of this Act, an incentive plan with their regular fishpond or prawn farm workers organization, if any, whereby seven point five percent (7.5%) of their net profit before tax from the operation of the fishpond or prawn farms are distributed within sixty (60) days at the end of the fiscal year as compensation to regular and other pond workers in such ponds over and above the compensation they currently receive. In order to safeguard the right of the regular fishpond or prawn farm workers under the incentive plan, the books of
the fishpond or prawn owners shall be subject to periodic audit or inspection by certified public accountants chosen by the workers. The foregoing provisions shall not apply to agricultural lands subsequently converted to fishponds or prawn farms provided the size of the land converted does not exceed the retention limit of the landowner. The above-mentioned provisions of R.A. No. 7881 expressly state that fishponds and prawn farms are excluded from the coverage of CARL. In view of the foregoing, the question concerning the constitutionality of the assailed provisions has become moot and academic with the passage of R.A. No. 7881. WHEREFORE, the petition is hereby DISMISSED . SO ORDERED. Narvasa, C.J., Regalado, Davide, Jr., Melo, Puno, Vitug, Mendoza, Hermosisima, Jr., Panganiban, and Torres, Jr., JJ., concur . Padilla, Bellosillo, Kapunan, and Francisco, JJ., on leave.
[1] Herein referred to as CARL. [2] G.R. No. 93100. [3] G.R. No. 97855. [4] 192 SCRA 51 (1990). [5] Supra. [6] An Act Amending Certain Provisions of Republic Act No. 6657, Entitled An Act Instituting A Comprehensive Agrarian Reform
Program To Promote Social Justice And Industrialization, Providing The Mechanism For Its Implementation, And For Other Purposes.
EN BANC
[G.R. No. 147780. May 10, 2001]
PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO, petitioners, vs. SECRETARY HERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA, respondents.
[G.R. No. 147781. May 10, 2001]
MIRIAM DEFENSOR-SANTIAGO, petitioner, vs. ANGELO REYES, Secretary of National Defense, et al., respondents.
[G.R. No. 147799. May 10, 2001]
RONALDO A. LUMBAO, petitioner, vs. SECRETARY HERNANDO PEREZ, GENERAL DIOMEDIO VILLANUEVA, P/DIR. LEANDRO MENDOZA and P/SR. SUPT. REYNALDO BERROYA, respondents.
[G.R. No. 147810. May 10, 2001]
THE LABAN NG DEMOKRATIKONG PILIPINO, petitioner, vs. THE DEPARTMENT OF JUSTICE, SECRETARY HERNANDO PEREZ, THE ARMED FORCES OF THE PHILIPPINES, GENERAL DIOMEDIO VILLANUEVA, THE PHILIPPINE NATIONAL POLICE, and DIRECTOR GENERAL LEANDRO MENDOZA, respondents. RESOLUTION
MELO, J .:
On May 1, 2001, President Macapagal-Arroyo, faced by an angry and violent mob armed with explosives, firearms, bladed weapons, clubs, stones and other deadly weapons assaulting and attempting to break into Malacaang, issued Proclamation No. 38 declaring that there was a state of rebellion in the National Capital Region. She likewise issued General Order No. 1 directing the Armed Forces of the Philippines and the Philippine National Police to suppress the rebellion in the National Capital Region. Warrantless arrests of several alleged leaders and
promoters of the rebellion were thereafter effected. Aggrieved by the warrantless arrests, and the declaration of a state of rebellion, which allegedly gave a semblance of legality to the arrests, the following four related petitions were filed before the Court(1) G.R. No. 147780 for prohibition, injunction, mandamus , and habeas corpus (with an urgent application for the issuance of temporary restraining order and/or writ of preliminary injunction) filed by Panfilo M. Lacson, Michael Ray B. Aquino, and Cezar O. Mancao; (2) G.R. No. 147781 for mandamus and/or review of the factual basis for the suspension of the privilege of the writ of habeas corpus, with prayer for a temporary restraining order filed by Miriam Defensor-Santiago; (3) G.R. No. 147799 for prohibition and injunction with prayer for a writ of preliminary injunction and/or restraining order filed by Rolando A. Lumbao; and (4) G.R. No. 147810 for certiorari and prohibition filed by the political party Laban ng Demokratikong Pilipino. All the foregoing petitions assail the declaration of a state of rebellion by President Gloria Macapagal-Arroyo and the warrantless arrests allegedly effected by virtue thereof, as having no basis both in fact an in law. Significantly, on May 6, 2001, President Macapagal-Arroyo ordered the lifting of the declaration of a state of rebellion in Metro Manila. Accordingly, the instant petitions have been rendered moot and academic. As to petitioners claim that the proclamation of a state of rebellion is being used by the authorities to justify warrantless arrests, the Secretary of Justice denies that it has issued a particular order to arrest specific persons in connection with the rebellion. He states that what is extant are general instructions to law enforcement officers and military agencies to implement Proclamation No. 38. Indeed, as stated in respondents Joint Comments: [I]t is already the declared intention of the Justice Department and police authorities to obtain regular warrants of arrests from the courts for all acts committed prior to and until May 1, 2001 which means that preliminary investigators will henceforth be conducted. (Comment, G.R. No. 147780, p. 28; G.R. No. 147781, p. 18; G.R. No. 147799, p. 16; G.R. No. 147810, p. 24) With this declaration, petitioners apprehensions as to warrantless arrests should be laid to rest. In quelling or suppressing the rebellion, the authorities may only resort to warrantless arrests of persons suspected of rebellion, as provided under Section 5, Rule 113 of the Rules of Court, if the circumstances so warrant. The warrantless arrest feared by petitioners is, thus, not based on the declaration of a state of rebellion. Moreover, petitioners contention in G.R. No. 147780 ( Lacson Petition), 147781 ( Defensor-Santiago Petition), and 147799 ( Lumbao Petition) that they are under imminent danger of being arrested without warrant do not justify their resort to the extraordinary remedies of mandamus and prohibition, since an individual subjected to warrantless arrest is not without adequate remedies in the ordinary course of law. Such an individual may ask for a preliminary investigation under Rule 112 of the Rules of court, where he may adduce evidence in his defense, or he may submit himself to inquest proceedings to determine whether or not he should remain under custody and correspondingly be charged in court. Further, a person subject of a warrantless arrest must be delivered to the proper judicial authorities within the periods provided in Article 125 of the Revised Penal Code, otherwise the arresting officer could be held liable for delay in the delivery of detained persons. Should the detention be without legal ground, the person arrested can charge the arresting officer with arbitrary detention. All this is without prejudice to his filing an action for damages against the arresting officer under Article 32 of the Civil Code. Verily, petitioners have a surfeit of other remedies which they can avail themselves of, thereby making the prayer for prohibition and mandamus improper at this time (Sections 2 and 3, Rule 65, Rules of Court). Aside from the foregoing reasons, several considerations likewise inevitably call for the dismissal of the petitions at bar.
G.R. No. 147780 In connection with their alleged impending warrantless arrest, petitioners Lacson, Aquino, and Mancao pray that
the appropriate court before whom the informations against petitioners are filed be directed to desist from arraigning and proceeding with the trial of the case, until the instant petition is finally resolved. This relief is clearly premature considering that as of this date, no complaints or charges have been filed against any of the petitioners for any crime. And in the event that the same are later filed, this court cannot enjoin criminal prosecution conducted in accordance with the Rules of Court, for by that time any arrest would have been in pursuance of a duly issued warrant. As regards petitioners prayer that the hold departure orders issued against them be declared null and void ab initio, it is to be noted that petitioners are not directly assailing the validity of the subject hold departure orders in their petition. The are not even expressing intention to leave the country in the near future. The prayer to set aside the same must be made in proper proceedings initiated for that purpose. Anent petitioners allegations ex abundante ad cautelam in support of their application for the issuance of a writ of habeas corpus, it is manifest that the writ is not called for since its purpose is to relieve petitioners from unlawful restraint ( Ngaya-an v. Balweg, 200 SCRA 149 [1991]), a matter which remains speculative up to this very day.
G.R. No. 147781 The petition herein is denominated by petitioner Defensor-Santiago as one for mandamus. It is basic in matters relating to petitions for mandamus that the legal right of the petitioner to the performance of a particular act which is sought to be compelled must be clear and complete. Mandamus will not issue the right to relief is clear at the time of the award ( Palileo v. Ruiz Castro, 85 Phil. 272). Up to the present time, petitioner Defensor-Santiago has not shown that she is in imminent danger of being arrested without a warrant. In point of fact, the authorities have categorically stated that petitioner will not be arrested without a warrant.
G.R. No. 147799 Petitioner Lumbao, leader of the Peoples Movement against Poverty (PMAP), for his part, argues that the declaration of a state of rebellion is violative of the doctrine of separation of powers, being an encroachment on the domain of the judiciary which has the constitutional prerogative to determine or interpret what took place on May 1, 2001, and that the declaration of a state of rebellion cannot be an exception to the general rule on the allocation of the governmental powers. We disagree. To be sure, section 18, Article VII of the Constitution expressly provides that [t]he President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion thus, we held in Integrated Bar of the Philippines v. Hon. Zamora, (G.R. No. 141284, August 15, 2000): xxx The factual necessity of calling out the armed forces is not easily quantifiable and cannot be objectively established since matters considered for satisfying the same is a combination of several factors which are not always accessible to the courts. Besides the absence of testual standards that the court may use to judge necessity, information necessary to arrive at such judgment might also prove unmanageable for the courts. Certain pertinent information necessary to arrive at such judgment might also prove unmanageable for the courts. Certain pertinent information might be difficult to verify, or wholly unavailable to the courts. In many instances, the evidence upon which the President might decide that there is a need to call out the armed forces may be of a nature not constituting technical proof. On the other hand, the President as Commander-in-Chief has a vast intelligence network to gather information, some of which may be classified as highly confidential or affecting the security of the state. In the exercise of the power to call, on-the-spot decisions may be imperatively necessary in emergency situations to avert great loss of human lives and mass destruction of property. xxx
(at
pp. 22-23)
The Court, in a proper case, may look into the sufficiency of the factual basis of the exercise of this power. However, this is no longer feasible at this time, Proclamation No. 38 having been lifted.
G.R. No. 147810 Petitioner Laban ng Demoktratikong Pilipino is not a real party-in-interest. The rule requires that a party must show a personal stake in the outcome of the case or an injury to himself that can be redressed by a favorable decision so as to warrant an invocation of the courts jurisdiction and to justify the exercise of the courts remedial powers in his behalf ( KMU Labor Center v. Garcia, Jr., 239 SCRA 386 [1994]). Here, petitioner has not demonstrated any injury to itself which would justify resort to the Court. Petitioner is a juridical person not subject to arrest. Thus, it cannot claim to be threatened by a warrantless arrest. Nor is it alleged that its leaders, members, and supporters are being threatened with warrantless arrest and detention for the crime of rebellion. Every action must be brought in the name of the party whose legal right has been invaded or infringed, or whose legal right is under imminent threat of invasion or infringement. At best, the instant petition may be considered as an action for declaratory relief, petitioner claiming that its right to freedom of expression and freedom of assembly is affected by the declaration of a state of rebellion and that said proclamation is invalid for being contrary to the Constitution. However, to consider the petition as one for declaratory relief affords little comfort to petitioner, this Court not having jurisdiction in the first instance over such a petition. Section 5[1], Article VIII of the Constitution limits the original jurisdiction of the Court to cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari , prohibition, mandamus , quo warranto, and habeas corpus. WHEREFORE, premises considered, the petitions are hereby DISMISSED. However, in G.R. No. 147780, 147781, and 147799, respondents, consistent and congruent with their undertaking earlier adverted to, together with their agents, representatives, and all persons acting for and in their behalf, are hereby enjoined from arresting petitioners therein without the required judicial warrant for all acts committed in relation to or in connection with the May 1, 2001 siege of Malacaang. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, and Gonzaga-Reyes, JJ., concur. Vitug, J., see separate opinion. Kapunan, and Sandoval-Gutierrez, JJ., see dissenting opinion. Pardo, J., join the dissent of J. Kapunan. Quisumbing, Buena, Ynares-Santiago, and De Leon, Jr., JJ., on leave.
EN BANC
[G.R. No. 159085. February 3, 2004]
SANLAKAS, represented by REP. J.V. Bautista, and PARTIDO NG MANGGAGAWA, represented by REP. RENATO MAGTUBO petitioners, vs. EXECUTIVE SECRETARY SECRETARY ANGELO REYES, GENERAL NARCISO ABAYA, DIR. GEN. HERMOGENES EBDANE, respondents.
[G.R. No. 159103. February 3, 2004]
SOCIAL JUSTICE SOCIETY (SJS) OFFICERS/MEMBERS namely, SAMSON S. ALCANTARA, ED VINCENT S. ALBANO, RENE B. GOROSPE, EDWIN R. SANDOVAL and RODOLFO D. MAPILE, petitioners, vs. HON. EXECUTIVE SECRETARY ALBERTO G. ROMULO, HON. SECRETARY OF JUSTICE SIMEON DATUMANONG, HON. SECRETARY OF NATIONAL DEFENSE ANGELO REYES, and HON. SECRETARY JOSE LINA, JR., respondents .
[G.R. No. 159185. February 3, 2004]
REP. ROLEX T. SUPLICO, REP. CARLOS M. PADILLA, REP. CELSO L. LOBREGAT, REP. HUSSIN U. AMIN, REP. ABRAHAM KAHLIL B. MITRA, REP. EMMYLOU J. TALINO-SANTOS, and REP. GEORGILU R. YUMUL-HERMIDA, petitioners , vs. PRESIDENT GLORIA MACAPAGAL-ARROYO; and EXECUTIVE SECRETARY ALBERTO G. ROMULO, respondents .
[G.R. No. 159196. February 3, 2004]
AQUILINO Q. PIMENTEL, JR. as a Member of the Senate, petitioner, vs. SECRETARY ALBERTO ROMULO, AS EXECUTIVE SECRETARY; SECRETARY ANGELO REYES, AS SECRETARY OF NATIONAL DEFENSE; GENERAL NARCISO ABAYA, AS CHIEF OF STAFF OF THE ARMED FORCES; SECRETARY JOSE LINA, et al., respondents .
DECISION
TINGA, J .:
They came in the middle of the night. Armed with high-powered ammunitions and explosives, some three hundred junior officers and enlisted men of the Armed Forces of the Philippines (AFP) stormed into the Oakwood Premiere apartments in Makati City in the wee hours of July 27, 2003. Bewailing the corruption in the AFP, the soldiers demanded, among other things, the resignation of the President, the Secretary of Defense and the Chief of the Philippine National Police (PNP).[1] In the wake of the Oakwood occupation, the President issued later in the day Proclamation No. 427 and General Order No. 4, both declaring a state of rebellion and calling out the Armed Forces to suppress the rebellion. Proclamation No. 427 reads in full: PROCLAMATION NO. 427 DECLARING A STATE OF REBELLION WHEREAS, certain elements of the Armed Forces of the Philippines, armed with high-powered firearms and explosives, acting upon the instigation and command and direction of known and unknown leaders, have seized a building in Makati City, put bombs in the area, publicly declared withdrawal of support for, and took arms against the duly constituted Government, and continue to rise publicly and show open hostility, for the purpose of removing allegiance to the Government certain bodies of the Armed Forces of the Philippines and the Philippine National Police, and depriving the President of the Republic of the Philippines, wholly or partially, of her powers and prerogatives which constitute the crime of rebellion punishable under Article 134 of the Revised Penal Code, as amended; WHEREAS, these misguided elements of the Armed Forces of the Philippines are being supported, abetted and aided by known and unknown leaders, conspirators and plotters in the government service and outside the government; WHEREAS, under Section 18, Article VII of the present Constitution, whenever it becomes necessary, the President, as the Commander-in-Chief of the Armed Forces of the Philippines, may call out such Armed Forces to suppress the rebellion; NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me by law, hereby confirm the existence of an actual and on-going rebellion, compelling me to declare a state of rebellion. In view of the foregoing, I am issuing General Order No. 4 in accordance with Section 18, Article VII of the Constitution, calling out the Armed Forces of the Philippines and the Philippine National Police to immediately carry out the necessary actions and measures to suppress and quell the rebellion with due regard to constitutional rights. General Order No. 4 is similarly worded: GENERAL ORDER NO. 4 DIRECTING THE ARMED FORCES OF THE PHILIPPINES AND THE PHILIPPINE NATIONAL POLICE TO SUPPRESS REBELLION WHEREAS, certain elements of the Armed Forces of the Philippines, armed with high-powered firearms and explosives, acting upon the instigation and command and direction of known and unknown leaders, have seized a building in Makati City, put bombs in the area, publicly declared withdrawal of support for, and took arms against the duly constituted Government, and continue to rise publicly and show open hostility, for the purpose of removing allegiance to the Government certain bodies of the Armed Forces of the Philippines and the Philippine National Police, and depriving the President of the Republic of the Philippines, wholly or partially, of her powers and prerogatives which constitute the crime of rebellion punishable under Article 134 et seq . of the Revised Penal Code, as amended;
WHEREAS, these misguided elements of the Armed Forces of the Philippines are being supported, abetted and aided by known and unknown leaders, conspirators and plotters in the government service and outside the government; WHEREAS, under Section 18, Article VII of the present Constitution, whenever it becomes necessary, the President, as the Commander-in-Chief of all Armed Forces of the Philippines, may call out such Armed Forces to suppress the rebellion; NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me by the Constitution as President of the Republic of the Philippines and Commander-in-Chief of all the armed forces of the Philippines and pursuant to Proclamation No. 427 dated July 27, 2003, do hereby call upon the Armed Forces of the Philippines and the Philippine National Police to suppress and quell the rebellion. I hereby direct the Chief of the Armed Forces of the Philippines and the Chief of the Philippine National Police and the officers and men of the Armed Forces of the Philippines and the Philippine National Police to immediately carry out the necessary and appropriate actions and measures to suppress and quell the rebellion with due regard to constitutional rights. By the evening of July 27, 2003, the Oakwood occupation had ended. After hours-long negotiations, the soldiers agreed to return to barracks. The President, however, did not immediately lift the declaration of a state of rebellion and did so only on August 1, 2003, through Proclamation No. 435: DECLARING THAT THE STATE OF REBELLION HAS CEASED TO EXIST WHEREAS, by virtue of Proclamation No. 427 dated July 27, 2003, a state of rebellion was declared; WHEREAS, by virtue of General Order No. 4 dated July 27, 2003, which was issued on the basis of Proclamation No. 427 dated July 27, 2003, and pursuant to Article VII, Section 18 of the Constitution, the Armed Forces of the Philippines and the Philippine National Police were directed to suppress and quell the rebellion; WHEREAS, the Armed Forces of the Philippines and the Philippine National Police have effectively suppressed and quelled the rebellion. NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Philippines, by virtue of the powers vested in me by law, hereby declare that the state of rebellion has ceased to exist. In the interim, several petitions were filed before this Court challenging the validity of Proclamation No. 427 and General Order No. 4. In G.R. No. 159085 ( Sanlakas and PM v. Executive Secretary, et al.),[2] party-list organizations Sanlakas and Partido ng Manggagawa (PM), contend that Section 18, Article VII of the Constitution does not require the declaration of a state of rebellion to call out the armed forces. [3] They further submit that, because of the cessation of the Oakwood occupation, there exists no sufficient factual basis for the proclamation by the President of a state of rebellion for an indefinite period.[4] Petitioners in G.R. No. 159103 ( SJS Officers/Members v. Hon. Executive Secretary, et al.) are officers/members of the Social Justice Society (SJS), Filipino citizens, taxpayers, law professors and bar reviewers. [5] Like Sanlakas and PM, they claim that Section 18, Article VII of the Constitution does not authorize the declaration of a state of rebellion.[6] They contend that the declaration is a constitutional anomaly that confuses, confounds and misleads because [o]verzealous public officers, acting pursuant to such proclamation or general order, are liable to violate the constitutional right of private citizens. [7] Petitioners also submit that the proclamation is a circumvention of the report requirement under the same Section 18, Article VII, commanding the President to submit a report to Congress within 48 hours from the proclamation of martial law. [8] Finally, they contend that the presidential issuances cannot be construed as an exercise of emergency powers as Congress has not delegated any such power to the President. [9]
In G.R. No. 159185 ( Rep. Suplico et al. v. President Macapagal-Arroyo and Executive Secretary Romulo ), petitioners brought suit as citizens and as Members of the House of Representatives whose rights, powers and functions were allegedly affected by the declaration of a state of rebellion.[10] Petitioners do not challenge the power of the President to call out the Armed Forces. [11] They argue, however, that the declaration of a state of rebellion is a superfluity, and is actually an exercise of emergency powers. [12] Such exercise, it is contended, amounts to a usurpation of the power of Congress granted by Section 23 (2), Article VI of the Constitution.[13] In G.R. No. 159196 ( Pimentel v. Romulo, et al.), petitioner Senator assails the subject presidential issuances as an unwarranted, illegal and abusive exercise of a martial law power that has no basis under the Constitution. [14] In the main, petitioner fears that the declaration of a state of rebellion opens the door to the unconstitutional implementation of warrantless arrests for the crime of rebellion.[15] Required to comment, the Solicitor General argues that the petitions have been rendered moot by the lifting of the declaration.[16] In addition, the Solicitor General questions the standing of the petitioners to bring suit. [17] The Court agrees with the Solicitor General that the issuance of Proclamation No. 435, declaring that the state of rebellion has ceased to exist, has rendered the case moot. As a rule, courts do not adjudicate moot cases, judicial power being limited to the determination of actual controversies.[18] Nevertheless, courts will decide a question, otherwise moot, if it is capable of repetition yet evading review. [19] The case at bar is one such case. Once before, the President on May 1, 2001 declared a state of rebellion and called upon the AFP and the PNP to suppress the rebellion through Proclamation No. 38 and General Order No. 1. On that occasion, an angry and violent mob armed with explosives, firearms, bladed weapons, clubs, stones and other deadly weapons assaulted and attempted to break into Malacaang.[20] Petitions were filed before this Court assailing the validity of the Presidents declaration. Five days after such declaration, however, the President lifted the same. The mootness of the petitions in Lacson v. Perez and accompanying cases[21] precluded this Court from addressing the constitutionality of the declaration. To prevent similar questions from reemerging, we seize this opportunity to finally lay to rest the validity of the declaration of a state of rebellion in the exercise of the Presidents calling out power, the mootness of the petitions notwithstanding. Only petitioners Rep. Suplico et al . and Sen. Pimentel, as Members of Congress, have standing to challenge the subject issuances. In Philippine Constitution Association v. Enriquez , [22] this Court recognized that: To the extent the powers of Congress are impaired, so is the power of each member thereof, since his office confers a right to participate in the exercise of the powers of that institution. An act of the Executive which injures the institution of Congress causes a derivative but nonetheless substantial injury, which can be questioned by a member of Congress. In such a case, any member of Congress can have a resort to the courts. Petitioner Members of Congress claim that the declaration of a state of rebellion by the President is tantamount to an exercise of Congress emergency powers, thus impairing the lawmakers legislative powers. Petitioners also maintain that the declaration is a subterfuge to avoid congressional scrutiny into the Presidents exercise of martial law powers. Petitioners Sanlakas and PM, and SJS Officers/Members, have no legal standing or locus standi to bring suit. Legal standing or locus standi has been defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being
challenged. The gist of the question of standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions. [23] Petitioners Sanlakas and PM assert that: 2. As a basic principle of the organizations and as an important plank in their programs, petitioners are committed to assert, defend, protect, uphold, and promote the rights, interests, and welfare of the people, especially the poor and marginalized classes and sectors of Philippine society. Petitioners are committed to defend and assert human rights, including political and civil rights, of the citizens. 3. Members of the petitioner organizations resort to mass actions and mobilizations in the exercise of their Constitutional rights to peaceably assemble and their freedom of speech and of expression under Section 4, Article III of the 1987 Constitution , as a vehicle to publicly ventilate their grievances and legitimate demands and to mobilize public opinion to support the same.[24] [Emphasis in the original.] Petitioner party-list organizations claim no better right than the Laban ng Demokratikong Pilipino, whose standing this Court rejected in Lacson v. Perez: petitioner has not demonstrated any injury to itself which would justify the resort to the Court. Petitioner is a juridical person not subject to arrest. Thus, it cannot claim to be threatened by a warrantless arrest. Nor is it alleged that its leaders, members, and supporters are being threatened with warrantless arrest and detention for the crime of rebellion. Every action must be brought in the name of the party whose legal rights has been invaded or infringed, or whose legal right is under imminent threat of invasion or infringement. At best, the instant petition may be considered as an action for declaratory relief, petitioner claiming that it[]s right to freedom of expression and freedom of assembly is affected by the declaration of a state of rebellion and that said proclamation is invalid for being contrary to the Constitution. However, to consider the petition as one for declaratory relief affords little comfort to petitioner, this Court not having jurisdiction in the first instance over such a petition. Section 5 [1], Article VIII of the Constitution limits the original jurisdiction of the court to cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari , prohibition, mandamus , quo warranto, and habeas corpus.[25] Even assuming that petitioners are peoples organizations, this status would not vest them with the requisite personality to question the validity of the presidential issuances, as this Court made clear in Kilosbayan v. Morato: [26] The Constitution provides that the State shall respect the role of independent peoples organizations to enable the people to pursue and protect, within the democratic framework, their legitimate and collective interests and aspirations through peaceful and lawful means, that their right to effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged. (Art. XIII, 15-16) These provisions have not changed the traditional rule that only real parties in interest or those with standing , as the case may be, may invoke the judicial power. The jurisdiction of this Court, even in cases involving constitutional questions, is limited by the case and controversy requirement of Art. VIII, 5. This requirement lies at the very heart of the judicial function. It is what differentiates decisionmaking in the courts from decisionmaking in the political departments of the government and bars the bringing of suits by just any party.[27] That petitioner SJS officers/members are taxpayers and citizens does not necessarily endow them with standing. A taxpayer may bring suit where the act complained of directly involves the illegal disbursement of public funds derived from taxation. [28] No such illegal disbursement is alleged. On the other hand, a citizen will be allowed to raise a constitutional question only when he can show that
he has personally suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government; the injury is fairly traceable to the challenged action; and the injury is likely to be redressed by a favorable action. [29] Again, no such injury is alleged in this case. Even granting these petitioners have standing on the ground that the issues they raise are of transcendental importance, the petitions must fail. It is true that for the purpose of exercising the calling out power the Constitution does not require the President to make a declaration of a state of rebellion. Section 18, Article VII provides: Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion . In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis for the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of the jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. [Emphasis supplied.] The above provision grants the President, as Commander-in-Chief, a sequence of graduated power[s]. [30] From the most to the least benign, these are: the calling out power, the power to suspend the privilege of the writ of habeas corpus , and the power to declare martial law. In the exercise of the latter two powers, the Constitution requires the concurrence of two conditions, namely, an actual invasion or rebellion, and that public safety requires the exercise of such power. [31] However, as we observed in Integrated Bar of the Philippines v. Zamora , [32] [t]hese conditions are not required in the exercise of the calling out power. The only criterion is that whenever it becomes necessary, the President may call the armed forces to prevent or suppress lawless violence, invasion or rebellion. Nevertheless, it is equally true that Section 18, Article VII does not expressly prohibit the President from declaring a state of rebellion. Note that the Constitution vests the President not only with Commander-inChief powers but, first and foremost, with Executive powers. Section 1, Article VII of the 1987 Philippine Constitution states: The executive power shall be vested in the President. As if by exposition, Section 17 of the same Article provides: He shall ensure that the laws be faithfully executed. The provisions trace their history to the Constitution of the United States.
The specific provisions of the U.S. Constitution granting the U.S. President executive and commanderin-chief powers have remained in their original simple form since the Philadelphia Constitution of 1776, Article II of which states in part: Section 1. 1. The Executive Power shall be vested in a President of the United States of America . . . . .... Section 2. 1. The President shall be Commander in Chief of the Army and Navy of the United States. . . . .... Section 3. he shall take care that the laws be faithfully executed. [Article II Executive Power] Recalling in historical vignettes the use by the U.S. President of the above-quoted provisions, as juxtaposed against the corresponding action of the U.S. Supreme Court, is instructive. Clad with the prerogatives of the office and endowed with sovereign powers, which are drawn chiefly from the Executive Power and Commander-in-Chief provisions, as well as the presidential oath of office, the President serves as Chief of State or Chief of Government, Commander-in-Chief, Chief of Foreign Relations and Chief of Public Opinion.[33] First to find definitive new piers for the authority of the Chief of State, as the protector of the people, was President Andrew Jackson. Coming to office by virtue of a political revolution, Jackson, as President not only kept faith with the people by driving the patricians from power. Old Hickory, as he was fondly called, was the first President to champion the indissolubility of the Union by defeating South Carolinas nullification effort.[34] The Federal Tariff Acts of 1828 and 1832 that Congress enacted did not pacify the hotspurs from South Carolina. Its State Legislature ordered an election for a convention, whose members quickly passed an Ordinance of Nullification. The Ordinance declared the Tariff Acts unconstitutional, prohibited South Carolina citizens from obeying them after a certain date in 1833, and threatened secession if the Federal Government sought to oppose the tariff laws. The Legislature then implemented the Ordinance with bristling punitive laws aimed at any who sought to pay or collect customs duties. [35] Jackson bided his time. His task of enforcement would not be easy. Technically, the President might send troops into a State only if the Governor called for help to suppress an insurrection, which would not occur in the instance. The President could also send troops to see to it that the laws enacted by Congress were faithfully executed. But these laws were aimed at individual citizens, and provided no enforcement machinery against violation by a State. Jackson prepared to ask Congress for a force bill. [36] In a letter to a friend, the President gave the essence of his position. He wrote: . . . when a faction in a State attempts to nullify a constitutional law of Congress, or to destroy the Union, the balance of the people composing this Union have a perfect right to coerce them to obedience. Then in a Proclamation he issued on December 10, 1832, he called upon South Carolinians to realize that there could be no peaceable interference with the execution of the laws, and dared them, disunion by armed force is treason. Are you ready to incur its guilt? [37] The Proclamation frightened nullifiers, non-nullifiers and tight-rope walkers. Soon, State Legislatures began to adopt resolutions of agreement, and the President announced that the national voice from Maine on the north to Louisiana on the south had declared nullification and accession confined to contempt and infamy.[38] No other President entered office faced with problems so formidable, and enfeebled by personal and political handicaps so daunting, as Abraham Lincoln.
Lincoln believed the Presidents power broad and that of Congress explicit and restricted, and sought some source of executive power not failed by misuse or wrecked by sabotage. He seized upon the Presidents designation by the Constitution as Commander-in-Chief, coupled it to the executive power provision and joined them as the war power which authorized him to do many things beyond the competence of Congress.[39] Lincoln embraced the Jackson concept of the Presidents independent power and duty under his oath directly to represent and protect the people. In his Message of July 4, 1861, Lincoln declared that the Executive found the duty of employing the war power in defense of the government forced upon him. He could not but perform the duty or surrender the existence of the Government . . . . This concept began as a transition device, to be validated by Congress when it assembled. In less than two-years, it grew into an independent power under which he felt authorized to suspend the privilege of the writ of habeas corpus , issue the Emancipation Proclamation, and restore reoccupied States.[40] Lincolns Proclamation of April 15, 1861, called for 75,000 troops. Their first service, according to the proclamation, would be to recapture forts, places and property, taking care to avoid any devastation, any destruction of or interference with property, or any disturbance of peaceful citizens. [41] Early in 1863, the U.S. Supreme Court approved President Lincolns report to use the war powers without the benefit of Congress. The decision was handed in the celebrated Prize Cases [42] which involved suits attacking the Presidents right to legally institute a blockade. Although his Proclamation was subsequently validated by Congress, the claimants contended that under international law, a blockade could be instituted only as a measure of war under the sovereign power of the State. Since under the Constitution only Congress is exclusively empowered to declare war, it is only that body that could impose a blockade and all prizes seized before the legislative declaration were illegal. By a 5 to 4 vote, the Supreme Court upheld Lincolns right to act as he had. [43] In the course of time, the U.S. Presidents power to call out armed forces and suspend the privilege of the writ of habeas corpus without prior legislative approval, in case of invasion, insurrection, or rebellion came to be recognized and accepted. The United States introduced the expanded presidential powers in the Philippines through the Philippine Bill of 1902. [44] The use of the power was put to judicial test and this Court held that the case raised a political question and said that it is beyond its province to inquire into the exercise of the power. [45] Later, the grant of the power was incorporated in the 1935 Constitution.[46] Elected in 1884, Grover Cleveland took his ascent to the presidency to mean that it made him the trustee of all the people. Guided by the maxim that Public office is a public trust, which he practiced during his incumbency, Cleveland sent federal troops to Illinois to quell striking railway workers who defied a court injunction. The injunction banned all picketing and distribution of handbills. For leading the strikes and violating the injunction, Debs, who was the union president, was convicted of contempt of court. Brought to the Supreme Court, the principal issue was by what authority of the Constitution or statute had the President to send troops without the request of the Governor of the State.[47] In In Re: Eugene Debs, et al , [48] the Supreme Court upheld the contempt conviction. It ruled that it is not the governments province to mix in merely individual present controversies. Still, so it went on, whenever wrongs complained of are such as affect the public at large, and are in respect of matters which by the Constitution are entrusted to the care of the Nation and concerning which the Nation owes the duty to all citizens of securing to them their common rights, then the mere fact that the Government has no pecuniary interest in the controversy is not sufficient to exclude it from the Courts, or prevent it from taking measures therein to fully discharge those constitutional duties. [49] Thus, Clevelands course had the Courts attest. Taking off from President Cleveland, President Theodore Roosevelt launched what political scientists dub the stewardship theory. Calling himself the steward of the people, he felt that the executive power was limited only by the specific restrictions and prohibitions appearing in the Constitution, or impleaded by Congress under its constitutional powers. [50]
The most far-reaching extension of presidential power T.R. ever undertook to employ was his plan to occupy and operate Pennsylvanias coal mines under his authority as Commander-in-Chief. In the issue, he found means other than force to end the 1902 hard-coal strike, but he had made detailed plans to use his power as Commander-in-Chief to wrest the mines from the stubborn operators, so that coal production would begin again.[51] Eventually, the power of the State to intervene in and even take over the operation of vital utilities in the public interest was accepted. In the Philippines, this led to the incorporation of Section 6, [52] Article XIII of the 1935 Constitution, which was later carried over with modifications in Section 7, [53] Article XIV of the 1973 Constitution, and thereafter in Section 18, [54] Article XII of the 1987 Constitution. The lesson to be learned from the U.S. constitutional history is that the Commander-in-Chief powers are broad enough as it is and become more so when taken together with the provision on executive power and the presidential oath of office. Thus, the plenitude of the powers of the presidency equips the occupant with the means to address exigencies or threats which undermine the very existence of government or the integrity of the State. In The Philippine Presidency A Study of Executive Power, the late Mme. Justice Irene R. Cortes, proposed that the Philippine President was vested with residual power and that this is even greater than that of the U.S. President. She attributed this distinction to the unitary and highly centralized nature of the Philippine government. She noted that, There is no counterpart of the several states of the American union which have reserved powers under the United States constitution. Elaborating on the constitutional basis for her argument, she wrote: . The [1935] Philippine [C]onstitution establishes the three departments of the government in this manner: The legislative power shall be vested in a Congress of the Philippines which shall consist of a Senate and a House of Representatives. The executive power shall be vested in a President of the Philippines. The judicial powers shall be vested in one Supreme Court and in such inferior courts as may be provided by law. These provisions not only establish a separation of powers by actual division but also confer plenary legislative, executive, and judicial powers. For as the Supreme Court of the Philippines pointed out in Ocampo v. Cabangis , a grant of legislative power means a grant of all the legislative power; and a grant of the judicial power means a grant of all the judicial power which may be exercised under the government. If this is true of the legislative power which is exercised by two chambers with a combined membership [at that time] of more than 120 and of the judicial power which is vested in a hierarchy of courts, it can equally if not more appropriately apply to the executive power which is vested in one official the president. He personifies the executive branch. There is a unity in the executive branch absent from the two other branches of government. The president is not the chief of many executives. He is the executive. His direction of the executive branch can be more immediate and direct than the United States president because he is given by express provision of the constitution control over all executive departments, bureaus and offices. [55] The esteemed Justice conducted her study against the backdrop of the 1935 Constitution, the framers of which, early on, arrived at a general opinion in favor of a strong Executive in the Philippines. [56] Since then, reeling from the aftermath of martial law, our most recent Charter has restricted the Presidents powers as Commander-in-Chief. The same, however, cannot be said of the Presidents powers as Chief Executive. In her ponencia in Marcos v. Manglapus , Justice Cortes put her thesis into jurisprudence. There, the Court, by a slim 8-7 margin, upheld the Presidents power to forbid the return of her exiled predecessor. The rationale for the majoritys ruling rested on the Presidents unstated residual powers which are implied from the grant of executive power and which are necessary for her to comply with her duties under the Constitution. The powers of the President are not limited to what are expressly enumerated in the article on the Executive Department and in scattered provisions of the Constitution. This is so, notwithstanding the avowed intent of the members of the Constitutional Commission of 1986 to limit the powers of the President as a reaction to the abuses under the regime of Mr. Marcos, for the result was a limitation of specific powers of the President, particularly those relating to the commander-in-chief clause, but not a diminution of the general grant
of executive power.[57] [Underscoring supplied. Italics in the original.] Thus, the Presidents authority to declare a state of rebellion springs in the main from her powers as chief executive and, at the same time, draws strength from her Commander-in-Chief powers. Indeed, as the Solicitor General accurately points out, statutory authority for such a declaration may be found in Section 4, Chapter 2 (Ordinance Power), Book III (Office of the President) of the Revised Administrative Code of 1987, which states: SEC. 4. Proclamations . Acts of the President fixing a date or declaring a status or condition of public moment or interest, upon the existence of which the operation of a specific law or regulation is made to depend, shall be promulgated in proclamations which shall have the force of an executive order. [Emphasis supplied.] The foregoing discussion notwithstanding, in calling out the armed forces, a declaration of a state of rebellion is an utter superfluity. [58] At most, it only gives notice to the nation that such a state exists and that the armed forces may be called to prevent or suppress it. [59] Perhaps the declaration may wreak emotional effects upon the perceived enemies of the State, even on the entire nation. But this Courts mandate is to probe only into the legal consequences of the declaration. This Court finds that such a declaration is devoid of any legal significance. For all legal intents, the declaration is deemed not written. Should there be any confusion generated by the issuance of Proclamation No. 427 and General Order No. 4, we clarify that, as the dissenters in Lacson correctly pointed out, the mere declaration of a state of rebellion cannot diminish or violate constitutionally protected rights.[60] Indeed, if a state of martial law does not suspend the operation of the Constitution or automatically suspend the privilege of the writ of habeas corpus , [61] then it is with more reason that a simple declaration of a state of rebellion could not bring about these conditions. [62] At any rate, the presidential issuances themselves call for the suppression of the rebellion with due regard to constitutional rights. For the same reasons, apprehensions that the military and police authorities may resort to warrantless arrests are likewise unfounded. In Lacson vs. Perez, supra , majority of the Court held that [i]n quelling or suppressing the rebellion, the authorities may only resort to warrantless arrests of persons suspected of rebellion, as provided under Section 5, Rule 113 of the Rules of Court,[63] if the circumstances so warrant. The warrantless arrest feared by petitioners is, thus, not based on the declaration of a state of rebellion.[64] In other words, a person may be subjected to a warrantless arrest for the crime of rebellion whether or not the President has declared a state of rebellion, so long as the requisites for a valid warrantless arrest are present. It is not disputed that the President has full discretionary power to call out the armed forces and to determine the necessity for the exercise of such power. While the Court may examine whether the power was exercised within constitutional limits or in a manner constituting grave abuse of discretion, none of the petitioners here have, by way of proof, supported their assertion that the President acted without factual basis.[65] The argument that the declaration of a state of rebellion amounts to a declaration of martial law and, therefore, is a circumvention of the report requirement, is a leap of logic. There is no indication that military tribunals have replaced civil courts in the theater of war or that military authorities have taken over the functions of civil government. There is no allegation of curtailment of civil or political rights. There is no indication that the President has exercised judicial and legislative powers. In short, there is no illustration that the President has attempted to exercise or has exercised martial law powers. Nor by any stretch of the imagination can the declaration constitute an indirect exercise of emergency powers, which exercise depends upon a grant of Congress pursuant to Section 23 (2), Article VI of the Constitution:
Sec. 23. (1) . (2) In times of war or other national emergency , the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof. The petitions do not cite a specific instance where the President has attempted to or has exercised powers beyond her powers as Chief Executive or as Commander-in-Chief. The President, in declaring a state of rebellion and in calling out the armed forces, was merely exercising a wedding of her Chief Executive and Commander-in-Chief powers. These are purely executive powers, vested on the President by Sections 1 and 18, Article VII, as opposed to the delegated legislative powers contemplated by Section 23 (2), Article VI. WHEREFORE, the petitions are hereby DISMISSED. SO ORDERED. Carpio, Corona, and Carpio-Morales, JJ., concur . Davide, Jr., C.J., in the result. Puno, J., in the result. Vitug, J., see separate opinion. Panganiban, J., see separate opinion. Quisumbing, J., joins J. Panganibans Opinion. Ynares-Santiago, J., see separate opinion. Sandoval-Gutierrez, J., please see dissenting opinion. Austria-Martinez, J., concur in the result. Callejo, Sr., J., concurs in the separate opinion of J. Panganiban. Azcuna, J., on official leave.
[1] Rollo , G.R. No. 159085, p. 7; Rollo , G.R. No. 159103, pp. 4-5; Rollo , G.R. No. 159185, pp. 4-5; Rollo , G.R. No. 159186, p. 9. [2] The Court in a Resolution dated August 5, 2003 ( Rollo , G.R. No. 159086, p. 18) previously dismissed the Sanlakas petition for
failure to attach certified true copies of Proclamation No. 427 and General Order No. 4, and for failure to explain why service of the petition on respondents was not made personally. Petitioners subsequently filed a motion for leave to admit the petition with compliance for reconsideration, attaching therewith a certified copy of the impugned Proclamation and General Order. The Court, in a Resolution dated August 12, 2003 ( Id., at 73) granted petitioners motion for leave and reinstated the petition.
[3] Id., at 10-12. [4] Id., at 13-14. [5] Rollo , G.R. No. 159103, p. 4. [6] Id., at 6. [7] Id., at 8. [8] Id., at 7. [9] Ibid. [10] Rollo , G.R. No. 159185, p. 5. [11] Id., at 10. [12] Ibid.
[13] Ibid . [14] Rollo , G.R. No. 159196, p. 7. [15] Id., at 17. [16] Rollo , G.R. No. 159085, p. 45; Rollo , G.R. No. 159103, p. 23; Rollo , G.R. No. 159185, p. 22; Rollo , G.R. No. 159186, p. 41. [17] Rollo , G.R. No. 159085, pp. 44-45; Rollo , G.R. No. 159103, pp. 22-23; Rollo , G.R. No. 159185, pp. 21-22; Rollo , G.R. No.
159186, pp. 40-41.

[18] CONST., art. VIII, sec. 1; Dumlao v. COMELEC, G.R. No. L-52245, January 22, 1980, 95 SCRA 392. [19] Alunan III v. Mirasol, G.R. No. 108399, July 31, 1997, 276 SCRA 501. [20] Lacson v. Perez, G.R. No. 147780, May 10, 2001, 357 SCRA 757, 762. [21] Supra. [22] G.R. No. 113105, August 19, 1994, 235 SCRA 506. [23] Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, August 15, 2000, 338 SCRA 81. [24] Rollo , G.R. No. 159085, p. 6. [25] Lacson v. Perez, supra , at 766. [26] G.R. No. 118910, November 19, 1995, 250 SCRA 130. [27] Id., at 139. [28] Bayan (Bagong Alyansang Makabayan) v. Zamora, G.R No. 138570, October 10, 2000, 342 SCRA 449. [29] G.R. No. 132922, April 21, 1998, Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Commission on
Elections, 289 SCRA 337.

[30] II Record of the Constitutional Commission 409. [31] Integrated Bar of the Philippines v. Zamora, supra at 110. [32] Ibid. [33] In the Philippines, the President is called the Chief Executive. [34] Milton, The Use of Presidential Power, 1789-1943, pp. 73, 86-90. [35] Id., at 91. [36] Id., at 92. [37] Ibid. [38] Milton, at 91-92. [39] Id., at 109. [40] Ibid. [41] Ibid. [42] 2 Black 635, 17 L. 459 (1863). [43] Milton, at 110. [44] A paragraph of section 5 of the act of the U.S. Congress of July 1, 1902, otherwise known as the Philippine Bill of 1902,
provides: That the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion, insurrection, or invasion the public safety may require it, in either of which events the same may be suspended by the President, or by the Governor-General with the approval of the Philippine Commission, whenever during such period the
necessity for such suspension shall exist.

[45] Barcelon v. Baker, 5 Phil. 87, 103 (1905). [46] Sec. 10, Art. VII, 1935 CONST. [47] Milton, 168-170; Peter Irons, A PEOPLES HISTORY OF THE SUPREME COURT, Published by the Penguin Group: New
York, N.Y. , 1999, pp. 245-247.

[48] 158 U.S. 1092 (1894). [49] Id., at 1103. [50] Milton, at 110. In An Autobiography, Roosevelt wrote:
The most important factor in getting the right spirit in my Administration, next to the insistence upon courage, honesty, and a genuine democracy of desire to serve the plain people, was my insistence upon the theory that the executive power was limited only by specific restrictions and prohibitions appearing in the Constitution or imposed by the Congress under its Constitutional powers. My view was that every executive officer, and above all, executive officer in high position was a steward of the people, and not to content himself with the negative merit of keeping his talents undamaged in a napkin. I declined to adopt the view that what was imperatively necessary for the Nation could not be done by the President unless he could find some specific authorization to do it. My belief was that it was not only his right but his duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws. Under this interpretation of the executive power, I did and caused to be done many things not previously done by the President and the heads of the Departments. I did not usurp power, but I did greatly broaden the use of executive power. In other words, I acted for the public welfare, I acted for the common well-being of all our people, whenever and in whatever manner was necessary, unless prevented by direct constitutional or legislative prohibition. I did not care a rap for the mere form and show of power; I cared immensely for the use that could be made of the substance. [An Autobiography, 389 (1913) New York.] William Howard Taft took the opposite view. He opined that the President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary to its exercise. Such specific grant must be either in the Constitution or in an act of Congress passed in pursuance thereof. There is no undefined residuum of power which he can exercise because it seems to be in the public interest. 50 (Our Chief Magistrate and His Powers, 139-142 (1916) New York.) Later, however, Taft, as Chief Justice, would change his view. See Myers v. United States, 272 US 52, 71 L Ed 160, 47 SC 21 (1926), holding that The words of 2, following the general grant of executive power under 1 were either an enumeration of specific functions of the Executive, not all inclusive, or were limitations upon the general grant of the executive power, and as such, being limitations, should not be enlarged beyond the words used.
[51] Milton, at 179. [52] The State may, in the interest of national welfare and defense, establish and operate industries and means of transportation
and communication, and upon payment of just compensation, transfer to public ownership utilities and other private enterprises to be operated by the Government.
[53] In times of national emergency when the public interest so requires, the State may temporarily take over and direct the
operation of any privately owned public utility or business affected with public interest.
[54] In times of national emergency when the public interest so requires, the State may, during the emergency and under
reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest.
[55] Cortes, THE PHILIPPINE PRESIDENCY, A STUDY OF EXECUTIVE POWER, pp. 68-69. [56] I Arugeo, THE FRAMING OF THE CONSTITUTIONAL CONVENTION 397 (1949) Manila. [57] Marcos v. Manglapus, G.R. No. 88211, October 27, 1989, 178 SCRA 760, 763-764. [58] See Lacson v. Perez, supra , Kapunan, J. , dissenting, at 773, 776. [59] Ibid. [60] Ibid. [61]
CONST., art. VII, sec. 18.

[62] Lacson v. Perez, supra , Sandoval-Gutierrez dissenting, at 792-793. [63] SEC. 5. Arrests without warrant; when lawful. A police officer or a private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, or is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; .
[64] Lacson v. Perez, supra , at 763. [65] IBP v. Zamora, supra .
G.R. No. 96541 August 24, 1993 DEAN JOSE JOYA, CARMEN GUERRERO NAKPIL, ARMIDA SIGUION REYNA, PROF. RICARTE M. PURUGANAN, IRMA POTENCIANO, ADRIAN CRISTOBAL, INGRID SANTAMARIA, CORAZON FIEL, AMBASSADOR E. AGUILAR CRUZ, FLORENCIO R. JACELA, JR., MAURO MALANG, FEDERICO AGUILAR ALCUAZ, LUCRECIA R. URTULA, SUSANO GONZALES, STEVE SANTOS, EPHRAIM SAMSON, SOLER SANTOS, ANG KIU KOK, KERIMA POLOTAN, LUCRECIA KASILAG, LIGAYA DAVID PEREZ, VIRGILIO ALMARIO, LIWAYWAY A. ARCEO, CHARITO PLANAS, HELENA BENITEZ, ANNA MARIA L. HARPER, ROSALINDA OROSA, SUSAN CALO MEDINA, PATRICIA RUIZ, BONNIE RUIZ, NELSON NAVARRO, MANDY NAVASERO, ROMEO SALVADOR, JOSEPHINE DARANG, and PAZ VETO PLANAS, petitioners, vs. PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG), CATALINO MACARAIG, JR., in his official capacity, and/or the Executive Secretary, and CHAIRMAN MATEO A.T. CAPARAS, respondents. M.M. Lazaro & Associates for petitioners. The Solicitor General for respondents.
BELLOSILLO, J.: All thirty-five (35) petitioners in this Special Civil Action for Prohibition and Mandamus with Prayer for Preliminary Injunction and/or Restraining Order seek to enjoin the Presidential Commission on Good Government (PCGG) from proceeding with the auction sale scheduled on 11 January 1991 by Christie's of New York of the Old Masters Paintings and 18th and 19th century silverware seized from Malacaang and the Metropolitan Museum of Manila and placed in the custody of the Central Bank. The antecedents: On 9 August 1990, Mateo A.T. Caparas, then Chairman of PCGG, wrote then President Corazon C. Aquino, requesting her for authority to sign the proposed Consignment Agreement between the Republic of the Philippines through PCGG and Christie, Manson and Woods International, Inc. (Christie's of New York, or CHRISTIE'S) concerning the scheduled sale on 11 January 1991 of eighty-two (82) Old Masters Paintings and antique silverware seized from Malacaang and the Metropolitan Museum of Manila alleged to be part of the ill-gotten wealth of the late President Marcos, his relatives and cronies.
On 14 August 1990, then President Aquino, through former Executive Secretary Catalino Macaraig, Jr., authorized Chairman Caparas to sign the Consignment Agreement allowing Christie's of New York to auction off the subject art pieces for and in behalf of the Republic of the Philippines. On 15 August 1990, PCGG, through Chairman Caparas, representing the Government of the Republic of the Philippines, signed the Consignment Agreement with Christie's of New York. According to the agreement, PCGG shall consign to CHRISTIE'S for sale at public auction the eighty-two (82) Old Masters Paintings then found at the Metropolitan Museum of Manila as well as the silverware contained in seventy-one (71) cartons in the custody of the Central Bank of the Philippines, and such other property as may subsequently be identified by PCGG and accepted by CHRISTIE'S to be subject to the provisions of the agreement. 1 On 26 October 1990, the Commission on Audit (COA) through then Chairman Eufemio C. Domingo submitted to President Aquino the audit findings and observations of COA on the Consignment Agreement of 15 August 1990 to the effect that: (a) the authority of former PCGG Chairman Caparas to enter into the Consignment Agreement was of doubtful legality; (b) the contract was highly disadvantageous to the government; (c) PCGG had a poor track record in asset disposal by auction in the U.S.; and, (d) the assets subject of auction were historical relics and had cultural significance, hence, their disposal was prohibited by law. 2 On 15 November 1990, PCGG through its new Chairman David M. Castro, wrote President Aquino defending the Consignment Agreement and refuting the allegations of COA Chairman Domingo. 3 On the same date, Director of National Museum Gabriel S. Casal issued a certification that the items subject of the Consignment Agreement did not fall within the classification of protected cultural properties and did not specifically qualify as part of the Filipino cultural heritage. 4 Hence, this petition originally filed on 7 January 1991 by Dean Jose Joya, Carmen Guerrero Nakpil, Armida Siguion Reyna, Prof. Ricarte M. Puruganan, Irma Potenciano, Adrian Cristobal, Ingrid Santamaria, Corazon Fiel, Ambassador E. Aguilar Cruz, Florencio R. Jacela, Jr., Mauro Malang, Federico Aguilar Alcuaz, Lucrecia R. Urtula, Susano Gonzales, Steve Santos, Ephraim Samson, Soler Santos, Ang Kiu Kok, Kerima Polotan, Lucrecia Kasilag, Ligaya David Perez, Virgilio Almario and Liwayway A. Arceo. After the oral arguments of the parties on 9 January 1991, we issued immediately our resolution denying the application for preliminary injunction to restrain the scheduled sale of the artworks on the ground that petitioners had not presented a clear legal right to a restraining order and that proper parties had not been impleaded. On 11 January 1991, the sale at public auction proceeded as scheduled and the proceeds of $13,302,604.86 were turned over to the Bureau of Treasury. 5 On 5 February 1991, on motion of petitioners, the following were joined as additional petitioners: Charito Planas, Helena Benitez, Ana Maria L. Harper, Rosalinda Orosa, Susan Carlo Medina, Patricia Ruiz, Bonnie Ruiz, Nelson Navarro, Mandy Navasero, Romeo Salvador, Josephine Darang and Paz Veto Planas.
On the other hand, Catalino Macaraig, Jr., in his capacity as former Executive Secretary, the incumbent Executive Secretary, and Chairman Mateo A.T. Caparas were impleaded as additional respondents. Petitioners raise the following issues: (a) whether petitioners have legal standing to file the instant petition; (b) whether the Old Masters Paintings and antique silverware are embraced in the phrase "cultural treasure of the nation" which is under the protection of the state pursuant to the 1987 Constitution and/or "cultural properties" contemplated under R.A. 4846, otherwise known as "The Cultural Properties Preservation and Protection Act;" (c) whether the paintings and silverware are properties of public dominion on which can be disposed of through the joint concurrence of the President and Congress; (d) whether respondent, PCGG has the jurisdiction and authority to enter into an agreement with Christie's of New York for the sale of the artworks; (e) whether, PCGG has complied with the due process clause and other statutory requirements for the exportation and sale of the subject items; and, (f) whether the petition has become moot and academic, and if so, whether the above issues warrant resolution from this Court. The issues being interrelated, they will be discussed jointly hereunder. However, before proceeding, we wish to emphasize that we admire and commend petitioners' zealous concern to keep and preserve within the country great works of art by well-known old masters. Indeed, the value of art cannot be gainsaid. For, by serving as a creative medium through which man can express his innermost thoughts and unbridled emotions while, at the same time, reflecting his deep-seated ideals, art has become a true expression of beauty, joy, and life itself. Such artistic creations give us insights into the artists' cultural heritage the historic past of the nation and the era to which they belong in their triumphant, glorious, as well as troubled and turbulent years. It must be for this reason that the framers of the 1987 Constitution mandated in Art. XIV, Sec. 14, that is the solemn duty of the state to "foster the preservation, enrichment, and dynamic evolution of a Filipino national culture based on the principle of unity in diversity in a climate of free artistic and intellectual expression." And, in urging this Court to grant their petition, petitioners invoke this policy of the state on the protection of the arts. But, the altruistic and noble purpose of the petition notwithstanding, there is that basic legal question which must first be resolved: whether the instant petition complies with the legal requisites for this Court to exercise its power of judicial review over this case. The rule is settled that no question involving the constitutionality or validity of a law or governmental act may be heard and decided by the court unless there is compliance with the legal requisites for judicial inquiry, namely: that the question must be raised by the proper party; that there must be an actual case or controversy; that the question must be raised at the earliest possible opportunity; and, that the decision on the constitutional or legal question must be necessary to the determination of the case itself. 6 But the most important are the first two (2) requisites. On the first requisite, we have held that one having no right or interest to protect cannot invoke the jurisdiction of the court as party-plaintiff in an action. 7 This is premised on Sec. 2, Rule 3, of the Rules of Court which provides that every action must
be prosecuted and defended in the name of the real party-in-interest, and that all persons having interest in the subject of the action and in obtaining the relief demanded shall be joined as plaintiffs. The Court will exercise its power of judicial review only if the case is brought before it by a party who has the legal standing to raise the constitutional or legal question. "Legal standing" means a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The term "interest" is material interest, an interest in issue and to be affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest. 8 Moreover, the interest of the party plaintiff must be personal and not one based on a desire to vindicate the constitutional right of some third and related party. 9 There are certain instances however when this Court has allowed exceptions to the rule on legal standing, as when a citizen brings a case for mandamus to procure the enforcement of a public duty for the fulfillment of a public right recognized by the Constitution, 10 and when a taxpayer questions the validity of a governmental act authorizing the disbursement of public funds. 11 Petitioners claim that as Filipino citizens, taxpayers and artists deeply concerned with the preservation and protection of the country's artistic wealth, they have the legal personality to restrain respondents Executive Secretary and PCGG from acting contrary to their public duty to conserve the artistic creations as mandated by the 1987 Constitution, particularly Art. XIV, Secs. 14 to 18, on Arts and Culture, and R.A. 4846 known as "The Cultural Properties Preservation and Protection Act," governing the preservation and disposition of national and important cultural properties. Petitioners also anchor their case on the premise that the paintings and silverware are public properties collectively owned by them and by the people in general to view and enjoy as great works of art. They allege that with the unauthorized act of PCGG in selling the art pieces, petitioners have been deprived of their right to public property without due process of law in violation of the Constitution. 12 Petitioners' arguments are devoid of merit. They lack basis in fact and in law. They themselves allege that the paintings were donated by private persons from different parts of the world to the Metropolitan Museum of Manila Foundation, which is a non-profit and non-stock corporations established to promote non-Philippine arts. The foundation's chairman was former First Lady Imelda R. Marcos, while its president was Bienvenido R. Tantoco. On this basis, the ownership of these paintings legally belongs to the foundation or corporation or the members thereof, although the public has been given the opportunity to view and appreciate these paintings when they were placed on exhibit. Similarly, as alleged in the petition, the pieces of antique silverware were given to the Marcos couple as gifts from friends and dignitaries from foreign countries on their silver wedding and anniversary, an occasion personal to them. When the Marcos administration was toppled by the revolutionary government, these paintings and silverware were taken from Malacaang and the Metropolitan Museum of Manila and transferred to the Central Bank Museum. The confiscation of these properties by the Aquino administration however should not be understood to mean that the ownership of these paintings has automatically passed on the government without complying with constitutional and statutory requirements of due process and just compensation. If these properties were already acquired by the government, any constitutional or statutory defect in their acquisition and their subsequent
disposition must be raised only by the proper parties the true owners thereof whose authority to recover emanates from their proprietary rights which are protected by statutes and the Constitution. Having failed to show that they are the legal owners of the artworks or that the valued pieces have become publicly owned, petitioners do not possess any clear legal right whatsoever to question their alleged unauthorized disposition. Further, although this action is also one of mandamus filed by concerned citizens, it does not fulfill the criteria for a mandamus suit. In Legaspi v. Civil Service Commission, 13 this Court laid down the rule that a writ of mandamus may be issued to a citizen only when the public right to be enforced and the concomitant duty of the state are unequivocably set forth in the Constitution. In the case at bar, petitioners are not after the fulfillment of a positive duty required of respondent officials under the 1987 Constitution. What they seek is the enjoining of an official act because it is constitutionally infirmed. Moreover, petitioners' claim for the continued enjoyment and appreciation by the public of the artworks is at most a privilege and is unenforceable as a constitutional right in this action for mandamus. Neither can this petition be allowed as a taxpayer's suit. Not every action filed by a taxpayer can qualify to challenge the legality of official acts done by the government. A taxpayer's suit can prosper only if the governmental acts being questioned involve disbursement of public funds upon the theory that the expenditure of public funds by an officer of the state for the purpose of administering an unconstitutional act constitutes a misapplication of such funds, which may be enjoined at the request of a taxpayer. 14 Obviously, petitioners are not challenging any expenditure involving public funds but the disposition of what they allege to be public properties. It is worthy to note that petitioners admit that the paintings and antique silverware were acquired from private sources and not with public money. Anent the second requisite of actual controversy, petitioners argue that this case should be resolved by this Court as an exception to the rule on moot and academic cases; that although the sale of the paintings and silver has long been consummated and the possibility of retrieving the treasure trove is nil, yet the novelty and importance of the issues raised by the petition deserve this Court's attention. They submit that the resolution by the Court of the issues in this case will establish future guiding principles and doctrines on the preservation of the nation's priceless artistic and cultural possessions for the benefit of the public as a whole. 15 For a court to exercise its power of adjudication, there must be an actual case of controversy one which involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution; the case must not be moot or academic or based on extra-legal or other similar considerations not cognizable by a court of justice. 16 A case becomes moot and academic when its purpose has become stale, 17 such as the case before us. Since the purpose of this petition for prohibition is to enjoin respondent public officials from holding the auction sale of the artworks on a particular date 11 January 1991 which is long past, the issues raised in the petition have become moot and academic.
At this point, however, we need to emphasize that this Court has the discretion to take cognizance of a suit which does not satisfy the requirements of an actual case or legal standing when paramount public interest is involved.18 We find however that there is no such justification in the petition at bar to warrant the relaxation of the rule. Section 2 of R.A. 4846, as amended by P.D. 374, declares it to be the policy of the state to preserve and protect the important cultural properties and national cultural treasures of the nation and to safeguard their intrinsic value. As to what kind of artistic and cultural properties are considered by the State as involving public interest which should therefore be protected, the answer can be gleaned from reading of the reasons behind the enactment of R.A. 4846: WHEREAS, the National Museum has the difficult task, under existing laws and regulations, of preserving and protecting the cultural properties of the nation; WHEREAS, inumerable sites all over the country have since been excavated for cultural relics, which have passed on to private hands, representing priceless cultural treasure that properly belongs to the Filipino people as their heritage; WHEREAS, it is perhaps impossible now to find an area in the Philippines, whether government or private property, which has not been disturbed by commercially-minded diggers and collectors, literally destroying part of our historic past; WHEREAS, because of this the Philippines has been charged as incapable of preserving and protecting her cultural legacies; WHEREAS, the commercialization of Philippine relics from the contact period, the Neolithic Age, and the Paleolithic Age, has reached a point perilously placing beyond reach of savants the study and reconstruction of Philippine prehistory; and WHEREAS, it is believed that more stringent regulation on movement and a limited form of registration of important cultural properties and of designated national cultural treasures is necessary, and that regardless of the item, any cultural property exported or sold locally must be registered with the National Museum to control the deplorable situation regarding our national cultural properties and to implement the Cultural Properties Law (emphasis supplied). Clearly, the cultural properties of the nation which shall be under the protection of the state are classified as the "important cultural properties" and the "national cultural treasures." "Important cultural properties" are cultural properties which have been singled out from among the innumerable cultural properties as having exceptional historical cultural significance to the Philippines but are not sufficiently outstanding to merit the classification of national cultural treasures. 19 On the other hand, a "national cultural treasures" is a unique object found locally, possessing outstanding historical, cultural, artistic and/or scientific value which is highly significant and important to this country and nation. 20 This Court takes note of the certification issued by the Director of the Museum that the Italian paintings and
silverware subject of this petition do not constitute protected cultural properties and are not among those listed in the Cultural Properties Register of the National Museum. We agree with the certification of the Director of the Museum. Under the law, it is the Director of the Museum who is authorized to undertake the inventory, registration, designation or classification, with the aid of competent experts, of important cultural properties and national cultural treasures. 21 Findings of administrative officials and agencies who have acquired expertise because their jurisdiction is confined to specific matters are generally accorded not only respect but at times even finality if such findings are supported by substantial evidence and are controlling on the reviewing authorities because of their acknowledged expertise in the fields of specialization to which they are assigned. 22 In view of the foregoing, this Court finds no compelling reason to grant the petition. Petitioners have failed to show that respondents Executive Secretary and PCGG exercised their functions with grave abuse of discretion or in excess of their jurisdiction. WHEREFORE, for lack of merit, the petition for prohibition and mandamus is DISMISSED. SO ORDERED. Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Regalado, Davide, Jr., Romero, Nocon, Melo, Quiason, Puno and Vitug, JJ., concur.
# Footnotes 1 Rollo, pp. 55-66. 2 Rollo, pp. 37-39. 3 Rollo, pp. 48-53. 4 Rollo, p. 186. 5 Ibid. 6 Cruz, Isagani A., Philippine Political Law, 1991 ed., p. 235; Dumlao v. Commission on Elections, G.R. No. L- 50245, 22 January 1980, 95 SCRA 392. 7 Sustiguer v. Tamayo, G.R. No. L-29341, 21 August 1989, 176 SCRA 579. 8 House International Building Tenants Association, Inc. v. Intermediate Appellate Court, G.R. No. L75287, 30 June 1987, 151 SCRA 703. 9 Bernas, Joaquin B., The Constitution of the Republic of the Philippines, Vol. II, 1988 Ed., p. 279.
10 Taada v. Tuvera, G.R. No. L- 63915, 24 April 1985, 136 SCRA 27; Legaspi v. Civil Service Commission, G.R. No. L- 72119, 29 May 1987, 150 SCRA 530. 11 Pascual v. Secretary of Public Works, 110 Phil 331 (1960). 12 Rollo, pp. 156-157. 13 G.R. No. L-72119, 29 May 1987, 150 SCRA 530. 14 Pascual v. Secretary of Public Works, 110 Phil 331 (1960). 15 Rollo, pp. 174-175. 16 See Note 6. 17 Manila Jockey Club, Inc. v. Montano Jr., G.R. No. L-24465, 28 February 1977, 75 SCRA 264. 18 Dumlao v. Comelec, G.R. No. L- 50245, 22 January 1980, 95 SCRA 392. 19 Sec. 2, par. b, R.A. 4846, as amended. 20 Sec. 3, par. c, R.A. 4846, as amended. 21 Id., Secs. 5-7. 22 Biak-na-Bato Mining Company v. Tanco, Jr., G.R. Nos. L-34267-68, 25 January 1991, 193 SCRA 323.
EN BANC
AQUILINO Q. PIMENTEL, JR., G.R. No. 164978 EDGARDO J. ANGARA, JUAN PONCE ENRILE, Present: LUISA P. EJERCITO-ESTRADA, Davide, Jr., C.J., JINGGOY E. ESTRADA, Puno, PANFILO M. LACSON, Panganiban, ALFREDO S. LIM, Quisumbing, JAMBY A.S. MADRIGAL, and Ynares-Santiago, SERGIO R. OSMEA III, Sandoval-Gutierrez, Petitioners, Carpio, Austria-Martinez, - versus - Corona, Carpio Morales, EXEC. SECRETARY EDUARDO Callejo, Sr., R. ERMITA, FLORENCIO B. ABAD, Azcuna, AVELINO J. CRUZ, JR., Tinga, MICHAEL T. DEFENSOR, Chico-Nazario, and JOSEPH H. DURANO, Garcia, JJ. RAUL M. GONZALEZ, ALBERTO G. ROMULO, RENE C. VILLA, and Promulgated: ARTHUR C. YAP, Respondents. October 13, 2005 x-----------------------------------------------------x
DECISION
CARPIO, J.:
The Case
This is a petition for certiorari and prohibition [1] with a prayer for the issuance of a writ of
preliminary injunction to declare unconstitutional the appointments issued by President Gloria Macapagal-Arroyo (President Arroyo) through Executive Secretary Eduardo R. Ermita (Secretary
Ermita) to Florencio B. Abad, Avelino J. Cruz, Jr., Michael T. Defensor, Joseph H. Durano, Raul M. Gonzalez, Alberto G. Romulo, Rene C. Villa, and Arthur C. Yap (respondents) as acting secretaries of their respective departments. The petition also seeks to prohibit respondents from performing the duties of department secretaries.
Antecedent Facts The Senate and the House of Representatives (Congress) commenced their regular session on 26 July 2004. The Commission on Appointments, composed of Senators and Representatives, was constituted on 25 August 2004. Meanwhile, President Arroyo issued appointments respective departments.
Appointee Arthur C. Yap Alberto G. Romulo Raul M. Gonzalez Florencio B. Abad Avelino J. Cruz, Jr. Rene C. Villa Joseph H. Durano Michael T. Defensor Department Agriculture Foreign Affairs Justice Education National Defense Agrarian Reform Tourism Environment and Natural Resources Date of Appointment 15 August 2004 23 August 2004 23 August 2004 23 August 2004 23 August 2004 23 August 2004 23 August 2004 23 August 2004
[2]
to respondents as acting secretaries of their
The appointment papers are uniformly worded as follows:

Sir: Pursuant to the provisions of existing laws, you are hereby appointed ACTING SECRETARY, DEPARTMENT OF (appropriate department) vice (name of person replaced). By virtue hereof, you may qualify and enter upon the performance of the duties and functions of the office, furnishing this Office and the Civil Service Commission with copies of your Oath of Office. (signed) Gloria Arroyo
Respondents took their oath of office and assumed duties as acting secretaries.
On 8 September 2004, Aquilino Q. Pimentel, Jr. (Senator Pimentel), Edgardo J. Angara (Senator Angara), Juan Ponce Enrile (Senator Enrile), Luisa P. Ejercito-Estrada (Senator EjercitoEstrada), Jinggoy E. Estrada (Senator Estrada), Panfilo M. Lacson (Senator Lacson), Alfredo S. Lim (Senator Lim), Jamby A.S. Madrigal (Senator Madrigal), and Sergio R. Osmea, III (Senator Osmea) (petitioners) filed the present petition as Senators of the Republic of the Philippines. Congress adjourned on 22 September 2004. On 23 September 2004, President Arroyo issued ad interim appointments [3] to respondents as secretaries of the departments to which they were previously
appointed in an acting capacity. The appointment papers are uniformly worded as follows:
Sir: Pursuant to the provisions of existing laws, you are hereby appointed SECRETARY [ AD INTERIM ], DEPARTMENT OF (appropriate department). By virtue hereof, you may qualify and enter upon the performance of the duties and functions of the office, furnishing this Office and the Civil Service Commission with copies of your oath of office. (signed) Gloria Arroyo
Issue The petition questions the constitutionality of President Arroyos appointment of respondents as acting secretaries without the consent of the Commission on Appointments while Congress is in session.
The Courts Ruling
The petition has no merit. Preliminary Matters
On the Mootness of the Petition The Solicitor General argues that the petition is moot because President Arroyo had extended to respondents ad interim appointments on 23 September 2004 immediately after the recess of Congress. As a rule, the writ of prohibition will not lie to enjoin acts already done. [4] However, as an
exception to the rule on mootness, courts will decide a question otherwise moot if it is capable of repetition yet evading review. In the present case, the mootness of the petition does not bar its resolution. The question of the constitutionality of the Presidents appointment of department secretaries in an acting capacity while Congress is in session will arise in every such appointment. On the Nature of the Power to Appoint The power to appoint is essentially executive in nature, and the legislature may not interfere with the exercise of this executive power except in those instances when the Constitution expressly allows it to interfere. legislature. [6] Limitations on the executive power to appoint are construed strictly against the [5]
[7]
The scope of the legislatures interference in the executives power to appoint is limited to
the power to prescribe the qualifications to an appointive office. Congress cannot appoint a person to an office in the guise of prescribing qualifications to that office. Neither may Congress impose on the President the duty to appoint any particular person to an office. However, even if the Commission on Appointments is composed of members of Congress, the exercise of its powers is executive and not legislative. The Commission on Appointments does not legislate when it exercises its power to give or withhold consent to presidential appointments. Thus:
[8]
xxx The Commission on Appointments is a creature of the Constitution. Although its membership is confined to members of Congress, said Commission is independent of Congress. The powers of the Commission do not come from Congress, but emanate directly from the Constitution. Hence, it is not an agent of Congress. In [9] fact, the functions of the Commissioner are purely executive in nature. xxx
On Petitioners Standing The Solicitor General states that the present petition is a quo warranto proceeding because, with the exception of Secretary Ermita, petitioners effectively seek to oust respondents for unlawfully exercising the powers of department secretaries. The Solicitor General further states that petitioners may not claim standing as Senators because no power of the Commission on Appointments has been infringed upon or violated by the President. xxx If at all, the Commission on Appointments as a body (rather than individual members of the Congress) may possess standing in this case. Petitioners, on the other hand, state that the Court can exercise its certiorari jurisdiction over unconstitutional acts of the President. [11] Petitioners further contend that they possess standing because [10]
President Arroyos appointment of department secretaries in an acting capacity while Congress is in session impairs the powers of Congress. Petitioners cite Sanlakas v. Executive Secretary thus:
To the extent that the powers of Congress are impaired, so is the power of each member thereof, since his office confers a right to participate in the exercise of the powers of that institution. An act of the Executive which injures the institution of Congress causes a derivative but nonetheless substantial injury, which can be questioned by a member of Congress. In such a case, any member of Congress can have a resort to the courts.
[12]
as basis,
Considering the independence of the Commission on Appointments from Congress, it is error for petitioners to claim standing in the present case as members of Congress. President Arroyos issuance of acting appointments while Congress is in session impairs no power of Congress. Among the petitioners,
only the following are members of the Commission on Appointments of the 13th Congress: Senator Enrile as Minority Floor Leader, Senator Lacson as Assistant Minority Floor Leader, and Senator Angara, Senator Ejercito-Estrada, and Senator Osmea as members. Thus, on the impairment of the prerogatives of members of the Commission on Appointments, only Senators Enrile, Lacson, Angara, Ejercito-Estrada, and Osmea have standing in the present petition. This is in contrast to Senators Pimentel, Estrada, Lim, and Madrigal, who, though vigilant in protecting their perceived prerogatives as members of Congress, possess no standing in the present petition. The Constitutionality of President Arroyos Issuance of Appointments to Respondents as Acting Secretaries Petitioners contend that President Arroyo should not have appointed respondents as acting secretaries because in case of a vacancy in the Office of a Secretary, it is only an Undersecretary who can be designated as Acting Secretary.
[13]
Petitioners base their argument on Section 10, Chapter 2, [14] which enumerates the powers and duties of the
Book IV of Executive Order No. 292 (EO 292), undersecretary. Paragraph 5 of Section 10 reads:
SEC. 10. Powers and Duties of the Undersecretary . - The Undersecretary shall: xxx (5) Temporarily discharge the duties of the Secretary in the latters absence or inability to discharge his duties for any cause or in case of vacancy of the said office, unless otherwise provided by law. Where there are more than one Undersecretary, the Secretary shall allocate the foregoing powers and duties among them. The President shall likewise make the temporary designation of Acting Secretary from among them; and
xxx
Petitioners further assert that while Congress is in session, there can be no appointments, whether regular or acting, to a vacant position of an office needing confirmation by the Commission on Appointments, without first having obtained its consent. [15]
In sharp contrast, respondents maintain that the President can issue appointments in an acting capacity to department secretaries without the consent of the Commission on Appointments even while Congress is in session. Respondents point to Section 16, Article VII of the 1987 Constitution. Section 16 reads:
SEC. 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards. The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress.
Respondents also rely on EO 292, which devotes a chapter to the Presidents power of appointment. Sections 16 and 17, Chapter 5, Title I, Book III of EO 292 read:
SEC. 16. Power of Appointment. The President shall exercise the power to appoint such officials as provided for in the Constitution and laws . SEC. 17. Power to Issue Temporary Designation. (1) The President may temporarily designate an officer already in the government service or any other competent person to perform the functions of an office in the executive branch, appointment to which is vested in him by law, when: (a) the officer regularly appointed to the office is unable to perform his duties by reason of illness, absence or any other cause; or (b) there exists a vacancy[.] (2) The person designated shall receive the compensation attached to the position, unless he is already in the government service in which case he shall receive only such additional compensation as, with his existing salary, shall not exceed the salary authorized by law for the position filled. The compensation hereby authorized shall be paid out of the funds appropriated for the office or agency concerned. (3) In no case shall a temporary designation exceed one (1) year. (Emphasis supplied)
Petitioners and respondents maintain two diametrically opposed lines of thought. Petitioners assert that the President cannot issue appointments in an acting capacity to department secretaries while Congress is in session because the law does not give the President such power. In contrast, respondents insist that the President can issue such appointments because no law prohibits such appointments.
The essence of an appointment in an acting capacity is its temporary nature. It is a stop-gap measure intended to fill an office for a limited time until the appointment of a permanent occupant to the office. [16] In case of vacancy in an office occupied by an alter ego of the President, such as the office
of a department secretary, the President must necessarily appoint an alter ego of her choice as acting secretary before the permanent appointee of her choice could assume office. Congress, through a law, cannot impose on the President the obligation to appoint automatically the undersecretary as her temporary alter ego . An alter ego , whether temporary or permanent, holds a position of great trust and confidence. Congress, in the guise of prescribing qualifications to an office, cannot impose on the President who her alter ego should be. The office of a department secretary may become vacant while Congress is in session. Since a department secretary is the alter ego of the President, the acting appointee to the office must necessarily have the Presidents confidence. Thus, by the very nature of the office of a department secretary, the President must appoint in an acting capacity a person of her choice even while Congress is in session. That person may or may not be the permanent appointee, but practical reasons may make it expedient that the acting appointee will also be the permanent appointee. The law expressly allows the President to make such acting appointment. Section 17, Chapter 5, Title I, Book III of EO 292 states that [t]he President may temporarily designate an officer already in the government service or any other competent person to perform the functions of an office in the executive branch. Thus, the President may even appoint in an acting capacity a person not yet in the government service, as long as the President deems that person competent. Petitioners assert that Section 17 does not apply to appointments vested in the President by the Constitution, because it only applies to appointments vested in the President by law. Petitioners forget that Congress is not the only source of law. Law refers to the Constitution, statutes or acts of Congress, municipal ordinances, implementing rules issued pursuant to law, and judicial decisions. [17]
Finally, petitioners claim that the issuance of appointments in an acting capacity is susceptible to abuse. Petitioners fail to consider that acting appointments cannot exceed one year as expressly provided in Section 17(3), Chapter 5, Title I, Book III of EO 292. The law has incorporated this safeguard to prevent abuses, like the use of acting appointments as a way to circumvent confirmation by the Commission on Appointments. In distinguishing ad interim appointments from appointments in an acting capacity, a noted textbook writer on constitutional law has observed:
Ad-interim appointments must be distinguished from appointments in an acting capacity. Both of them are effective upon acceptance. But ad-interim appointments are extended only during a recess of Congress, whereas acting appointments may be extended any time there is a vacancy. Moreover ad-interim appointments are submitted to the Commission on Appointments for confirmation or rejection; acting appointments are not submitted to the Commission on Appointments. Acting appointments are a way of temporarily filling important offices but, if abused, they can also be a way of circumventing the need for [18] confirmation by the Commission on Appointments.
However, we find no abuse in the present case. The absence of abuse is readily apparent from President Arroyos issuance of ad interim appointments to respondents immediately upon the recess of Congress, way before the lapse of one year. WHEREFORE, we DISMISS the present petition for certiorari and prohibition. SO ORDERED. ANTONIO T. CARPIO Associate Justice WE CONCUR: HILARIO G. DAVIDE, JR. Chief Justice
REYNATO S. PUNO Associate Justice LEONARDO A. QUISUMBING Associate Justice ANGELINA SANDOVALGUTIERREZ Associate Justice
ARTEMIO V. PANGANIBAN Associate Justice CONSUELO YNARESSANTIAGO Associate Justice
MA. ALICIA AUSTRIAMARTINEZ Associate Justice
RENATO C. CORONA Associate Justice
ROMEO J. CALLEJO, SR. Associate Justice DANTE O. TINGA Associate Justice
CONCHITA CARPIO MORALES Associate Justice ADOLFO S. AZCUNA Associate Justice
MINITA V. CHICO-NAZARIO Associate Justice CANCIO C. GARCIA Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions
in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court. HILARIO G. DAVIDE, JR. Chief Justice
[1] [2] [3] [4] [5] [6] [7] [8] [9]
Under Rule 65 of the Rules of Court. Rollo, pp. 21-28. Rollo, pp. 45-60.
Tolentino v. Commission on Elections, G.R. No. 148334, 21 January 2004, 420 SCRA 438 citing Gil v. Benipayo, G.R. No. 148179, 26 June 2001 (minute resolution). Tolentino v. Commission on Elections, G.R. No. 148334, 21 January 2004, 420 SCRA 438 citing Chief Supt. Acop v. Secretary Guingona, Jr., 433 Phil. 62 (2002); Viola v. Hon. Alunan III, 343 Phil. 184 (1997); Alunan III v. Mirasol, 342 Phil. 467 (1997). See Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary 768 (1996). See Sarmiento III v. Mison, No. L-79974, 17 December 1987, 156 SCRA 549. See Manalang v. Quitoriano, et al., 94 Phil. 903 (1954); Flores v. Drilon, G.R. No. 104732, 22 June 1993, 223 SCRA 568. Cunanan v. Tan, Jr., G.R. No. L-19721, 10 May 1962, 5 SCRA 1. But see Justice Concepcions Concurring Opinion in Guevara v. Inocentes, 123 Phil. 201, 211 (1966).
[10] [11] [12] [13] [14] [15] [16] [17] [18]
Rollo, p. 38. Ibid., p. 65. G.R. No. 159085, 3 February 2004, 421 SCRA 656 citing Philippine Constitution Association v. Enriquez, G.R. No. 113105, 19 August 1994, 235 SCRA 506. Rollo, p. 14. Also known as the Administrative Code of 1987. Rollo, p. 12.
See Marohombsar v. Alonto, Jr., G.R. No. 93711, 25 February 1991, 194 SCRA 390. Article 8, Civil Code. See National Amnesty Commission v. Commission on Audit, G.R. No. 156982, 8 September 2004, 437 SCRA 655. Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary 772 (1996).
EN BANC
[G.R. No. 155001. January 21, 2004]
DEMOSTHENES P. AGAN, JR., JOSEPH B. CATAHAN, JOSE MARI B. REUNILLA, MANUEL ANTONIO B. BOE, MAMERTO S. CLARA, REUEL E. DIMALANTA, MORY V. DOMALAON, CONRADO G. DIMAANO, LOLITA R. HIZON, REMEDIOS P. ADOLFO, BIENVENIDO C. HILARIO, MIASCOR WORKERS UNION-NATIONAL LABOR UNION (MWU-NLU), and PHILIPPINE AIRLINES EMPLOYEES ASSOCIATION (PALEA), petitioners, vs. PHILIPPINE INTERNATIONAL AIR TERMINALS CO., INC., MANILA INTERNATIONAL AIRPORT AUTHORITY, DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS and SECRETARY LEANDRO M. MENDOZA, in his capacity as Head of the Department of Transportation and Communications, respondents , MIASCOR GROUNDHANDLING CORPORATION, DNATA-WINGS AVIATION SYSTEMS CORPORATION, MACROASIA-EUREST SERVICES, INC., MACROASIAMENZIES AIRPORT SERVICES CORPORATION, MIASCOR CATERING SERVICES CORPORATION, MIASCOR AIRCRAFT MAINTENANCE CORPORATION, and MIASCOR LOGISTICS CORPORATION, Petitioners-inIntervention, FLORESTE ALCONIS, GINA ALNAS, REY AMPOLOQUIO, ROSEMARIE ANG, EUGENE ARADA, NENETTE BARREIRO, NOEL BARTOLOME, ALDRIN BASTADOR, ROLETTE DIVINE BERNARDO, MINETTE BRAVO, KAREN BRECILLA, NIDA CAILAO, ERWIN CALAR, MARIFEL CONSTANTINO, JANETTE CORDERO, ARNOLD FELICITAS, MARISSA GAYAGOY, ALEX GENERILLO, ELIZABETH GRAY, ZOILO HERICO, JACQUELINE IGNACIO, THELMA INFANTE, JOEL JUMAO-AS, MARIETTA LINCHOCO, ROLLY LORICO, FRANCIS AUGUSTO MACATOL, MICHAEL MALIGAT, DENNIS MANALO, RAUL MANGALIMAN, JOEL MANLANGIT, CHARLIE MENDOZA, HAZNAH MENDOZA, NICHOLS MORALES, ALLEN OLAO, CESAR ORTAL, MICHAEL ORTEGA, WAYNE PLAZA, JOSELITO REYES, ROLANDO REYES, AILEEN SAPINA, RAMIL TAMAYO, PHILLIPS TAN, ANDREW UY, WILLIAM VELASCO, EMILIO VELEZ, NOEMI YUPANO, MARY JANE ONG, RICHARD RAMIREZ, CHERYLE MARIE ALFONSO, LYNDON BAUTISTA, MANUEL CABOCAN AND NEDY LAZO, Respondents-inIntervention, NAGKAISANG MARALITA NG TAONG ASSOCIATION, INC., Respondents-inIntervention,
[G.R. No. 155547. January 21, 2003]
SALACNIB F. BATERINA, CLAVEL A. MARTINEZ and CONSTANTINO G. JARAULA, petitioners, vs . PHILIPPINE INTERNATIONAL AIR TERMINALS CO., INC., MANILA INTERNATIONAL AIRPORT AUTHORITY, DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS, DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS, SECRETARY LEANDRO M. MENDOZA, in his capacity as Head of the Department of Transportation and Communications, and SECRETARY SIMEON A. DATUMANONG, in his capacity as Head of the Department of Public Works and Highways, respondents, JACINTO V. PARAS, RAFAEL P. NANTES, EDUARDO C. ZIALCITA, WILLY BUYSON VILLARAMA, PROSPERO C. NOGRALES, PROSPERO A. PICHAY, JR., HARLIN CAST ABAYON, and BENASING O. MACARANBON, Respondents-Intervenors, FLORESTE ALCONIS, GINA ALNAS, REY AMPOLOQUIO, ROSEMARIE ANG, EUGENE ARADA, NENETTE BARREIRO, NOEL BARTOLOME, ALDRIN BASTADOR, ROLETTE DIVINE BERNARDO, MINETTE BRAVO, KAREN BRECILLA, NIDA CAILAO, ERWIN CALAR, MARIFEL CONSTANTINO, JANETTE CORDERO, ARNOLD FELICITAS, MARISSA GAYAGOY, ALEX GENERILLO, ELIZABETH GRAY, ZOILO HERICO, JACQUELINE IGNACIO, THELMA INFANTE, JOEL JUMAO-AS, MARIETTA LINCHOCO, ROLLY LORICO, FRANCIS AUGUSTO MACATOL, MICHAEL MALIGAT, DENNIS MANALO, RAUL MANGALIMAN, JOEL MANLANGIT, CHARLIE MENDOZA, HAZNAH MENDOZA, NICHOLS MORALES, ALLEN OLAO, CESAR ORTAL, MICHAEL ORTEGA, WAYNE PLAZA, JOSELITO REYES, ROLANDO REYES, AILEEN SAPINA, RAMIL TAMAYO, PHILLIPS TAN, ANDREW UY, WILLIAM VELASCO, EMILIO VELEZ, NOEMI YUPANO, MARY JANE ONG, RICHARD RAMIREZ, CHERYLE MARIE ALFONSO, LYNDON BAUTISTA, MANUEL CABOCAN AND NEDY LAZO, Respondents-inIntervention, NAGKAISANG MARALITA NG TAONG ASSOCIATION, INC., Respondents-inIntervention,
[G.R. No. 155661. January 21, 2003]
CEFERINO C. LOPEZ, RAMON M. SALES, ALFREDO B. VALENCIA, MA. TERESA V. GAERLAN, LEONARDO DE LA ROSA, DINA C. DE LEON, VIRGIE CATAMIN,
RONALD SCHLOBOM, ANGELITO SANTOS, MA. LUISA M. PALCON and SAMAHANG MANGGAGAWA SA PALIPARAN NG PILIPINAS (SMPP), petitioners, vs . PHILIPPINE INTERNATIONAL AIR TERMINALS CO., INC., MANILA INTERNATIONAL AIRPORT AUTHORITY, DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS, SECRETARY LEANDRO M. MENDOZA, in his capacity as Head of the Department of Transportation and Communications, respondents , FLORESTE ALCONIS, GINA ALNAS, REY AMPOLOQUIO, ROSEMARIE ANG, EUGENE ARADA, NENETTE BARREIRO, NOEL BARTOLOME, ALDRIN BASTADOR, ROLETTE DIVINE BERNARDO, MINETTE BRAVO, KAREN BRECILLA, NIDA CAILAO, ERWIN CALAR, MARIFEL CONSTANTINO, JANETTE CORDERO, ARNOLD FELICITAS, MARISSA GAYAGOY, ALEX GENERILLO, ELIZABETH GRAY, ZOILO HERICO, JACQUELINE IGNACIO, THELMA INFANTE, JOEL JUMAO-AS, MARIETTA LINCHOCO, ROLLY LORICO, FRANCIS AUGUSTO MACATOL, MICHAEL MALIGAT, DENNIS MANALO, RAUL MANGALIMAN, JOEL MANLANGIT, CHARLIE MENDOZA, HAZNAH MENDOZA, NICHOLS MORALES, ALLEN OLAO, CESAR ORTAL, MICHAEL ORTEGA, WAYNE PLAZA, JOSELITO REYES, ROLANDO REYES, AILEEN SAPINA, RAMIL TAMAYO, PHILLIPS TAN, ANDREW UY, WILLIAM VELASCO, EMILIO VELEZ, NOEMI YUPANO, MARY JANE ONG, RICHARD RAMIREZ, CHERYLE MARIE ALFONSO, LYNDON BAUTISTA, MANUEL CABOCAN AND NEDY LAZO, Respondents-inIntervention, NAGKAISANG MARALITA NG TAONG ASSOCIATION, INC., Respondents-inIntervention. RESOLUTION
Puno, J .:
Before this Court are the separate Motions for Reconsideration filed by respondent Philippine International Air Terminals Co., Inc. (PIATCO), respondents-intervenors Jacinto V. Paras, Rafael P. Nantes, Eduardo C. Zialcita, Willie Buyson Villarama, Prospero C. Nograles, Prospero A. Pichay, Jr., Harlin Cast Abayon and Benasing O. Macaranbon, all members of the House of Representatives (Respondent Congressmen), [1] respondents-intervenors who are employees of PIATCO and other workers of the Ninoy Aquino International Airport International Passenger Terminal III (NAIA IPT III) (PIATCO Employees) [2] and respondents-intervenors Nagkaisang Maralita ng Taong Association, Inc., (NMTAI) [3] of the Decision of this Court dated May 5, 2003 declaring the contracts for the NAIA IPT III project null and void. Briefly, the proceedings. On October 5, 1994, Asias Emerging Dragon Corp. (AEDC) submitted an unsolicited proposal to the Philippine Government through the Department of Transportation and Communication (DOTC) and Manila International Airport Authority (MIAA) for the construction and development of the NAIA IPT III under a build-operate-and-transfer arrangement pursuant to R.A. No. 6957, as amended by R.A. No. 7718 (BOT Law). [4] In accordance with the BOT Law and its Implementing Rules and Regulations (Implementing Rules), the DOTC/MIAA invited the public for submission of competitive and
comparative proposals to the unsolicited proposal of AEDC. On September 20, 1996 a consortium composed of the Peoples Air Cargo and Warehousing Co., Inc. (Paircargo), Phil. Air and Grounds Services, Inc. (PAGS) and Security Bank Corp. (Security Bank) (collectively, Paircargo Consortium), submitted their competitive proposal to the Prequalification Bids and Awards Committee (PBAC). After finding that the Paircargo Consortium submitted a bid superior to the unsolicited proposal of AEDC and after failure by AEDC to match the said bid, the DOTC issued the notice of award for the NAIA IPT III project to the Paircargo Consortium, which later organized into herein respondent PIATCO. Hence, on July 12, 1997, the Government, through then DOTC Secretary Arturo T. Enrile, and PIATCO, through its President, Henry T. Go, signed the Concession Agreement for the Build-Operate-and-Transfer Arrangement of the Ninoy Aquino International Airport Passenger Terminal III (1997 Concession Agreement). On November 26, 1998, the 1997 Concession Agreement was superseded by the Amended and Restated Concession Agreement (ARCA) containing certain revisions and modifications from the original contract. A series of supplemental agreements was also entered into by the Government and PIATCO. The First Supplement was signed on August 27, 1999, the Second Supplement on September 4, 2000, and the Third Supplement on June 22, 2001 (collectively, Supplements) (the 1997 Concession Agreement, ARCA and the Supplements collectively referred to as the PIATCO Contracts). On September 17, 2002, various petitions were filed before this Court to annul the 1997 Concession Agreement, the ARCA and the Supplements and to prohibit the public respondents DOTC and MIAA from implementing them. In a decision dated May 5, 2003, this Court granted the said petitions and declared the 1997 Concession Agreement, the ARCA and the Supplements null and void. Respondent PIATCO, respondent-Congressmen and respondents-intervenors now seek the reversal of the May 5, 2003 decision and pray that the petitions be dismissed. In the alternative, PIATCO prays that the Court should not strike down the entire 1997 Concession Agreement, the ARCA and its supplements in light of their separability clause. Respondent-Congressmen and NMTAI also pray that in the alternative, the cases at bar should be referred to arbitration pursuant to the provisions of the ARCA. PIATCO-Employees pray that the petitions be dismissed and remanded to the trial courts for trial on the merits or in the alternative that the 1997 Concession Agreement, the ARCA and the Supplements be declared valid and binding.
I
Procedural Matters
a. Lack of Jurisdiction Private respondents and respondents-intervenors reiterate a number of procedural issues which they insist deprived this Court of jurisdiction to hear and decide the instant cases on its merits. They continue to claim that the cases at bar raise factual questions which this Court is ill-equipped to resolve, hence, they must be remanded to the trial court for reception of evidence. Further, they allege that although designated as petitions for certiorari and prohibition, the cases at bar are actually actions for nullity of contracts over which the trial courts have exclusive jurisdiction. Even assuming that the cases at bar are special civil actions for certiorari and prohibition, they contend that the principle of hierarchy of courts precludes this Court from taking primary jurisdiction over them. We are not persuaded. There is a question of fact when doubt or difference arises as to the truth or falsity of the facts alleged. [5]
Even a cursory reading of the cases at bar will show that the Court decided them by interpreting and applying the Constitution, the BOT Law, its Implementing Rules and other relevant legal principles on the basis of clearly undisputed facts . All the operative facts were settled, hence, there is no need for a trial type determination of their truth or falsity by a trial court. We reject the unyielding insistence of PIATCO Employees that the following factual issues are critical and beyond the capability of this Court to resolve, viz: (a) whether the National Economic Development Authority- Investment Coordinating Committee (NEDA-ICC) approved the Supplements; (b) whether the First Supplement created ten (10) new financial obligations on the part of the government; and (c) whether the 1997 Concession Agreement departed from the draft Concession Agreement contained in the Bid Documents. [6] The factual issue of whether the NEDA-ICC approved the Supplements is hardly relevant. It is clear in our Decision that the PIATCO contracts were invalidated on other and more substantial grounds. It did not rely on the presence or absence of NEDA-ICC approval of the Supplements. On the other hand, the last two issues do not involve disputed facts. Rather, they involve contractual provisions which are clear and categorical and need only to be interpreted. The interpretation of contracts and the determination of whether their provisions violate our laws or contravene any public policy is a legal issue which this Court may properly pass upon. Respondents corollary contention that this Court violated the hierarchy of courts when it entertained the cases at bar must also fail. The rule on hierarchy of courts in cases falling within the concurrent jurisdiction of the trial courts and appellate courts generally applies to cases involving warring factual allegations. For this reason, litigants are required to repair to the trial courts at the first instance to determine the truth or falsity of these contending allegations on the basis of the evidence of the parties. Cases which depend on disputed facts for decision cannot be brought immediately before appellate courts as they are not triers of facts. It goes without saying that when cases brought before the appellate courts do not involve factual but legal questions, a strict application of the rule of hierarchy of courts is not necessary. As the cases at bar merely concern the construction of the Constitution, the interpretation of the BOT Law and its Implementing Rules and Regulations on undisputed contractual provisions and government actions, and as the cases concern public interest, this Court resolved to take primary jurisdiction over them. This choice of action follows the consistent stance of this Court to settle any controversy with a high public interest component in a single proceeding and to leave no root or branch that could bear the seeds of future litigation. The suggested remand of the cases at bar to the trial court will stray away from this policy. [7]
b. Legal Standing Respondent PIATCO stands pat with its argument that petitioners lack legal personality to file the cases at bar as they are not real parties in interest who are bound principally or subsidiarily to the PIATCO Contracts. Further, respondent PIATCO contends that petitioners failed to show any legally demandable or enforceable right to justify their standing to file the cases at bar. These arguments are not difficult to deflect. The determination of whether a person may institute an action or become a party to a suit brings to fore the concepts of real party in interest, capacity to sue and standing to sue. To the legally discerning, these three concepts are different although commonly directed towards ensuring that only certain parties can maintain an action. [8] As defined in the Rules of Court, a real party in interest is the party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit. [9] Capacity to sue deals with a situation where a person who may have a cause of action is disqualified from bringing a suit under applicable law or is incompetent to bring a suit or is under some legal disability that would prevent him from maintaining an action unless represented by a
guardian ad litem. Legal standing is relevant in the realm of public law. In certain instances, courts have allowed private parties to institute actions challenging the validity of governmental action for violation of private rights or constitutional principles. [10] In these cases, courts apply the doctrine of legal standing by determining whether the party has a direct and personal interest in the controversy and whether such party has sustained or is in imminent danger of sustaining an injury as a result of the act complained of , a standard which is distinct from the concept of real party in interest.[11] Measured by this yardstick, the application of the doctrine on legal standing necessarily involves a preliminary consideration of the merits of the case and is not purely a procedural issue.[12] Considering the nature of the controversy and the issues raised in the cases at bar, this Court affirms its ruling that the petitioners have the requisite legal standing. The petitioners in G.R. Nos. 155001 and 155661 are employees of service providers operating at the existing international airports and employees of MIAA while petitioners-intervenors are service providers with existing contracts with MIAA and they will all sustain direct injury upon the implementation of the PIATCO Contracts. The 1997 Concession Agreement and the ARCA both provide that upon the commencement of operations at the NAIA IPT III, NAIA Passenger Terminals I and II will cease to be used as international passenger terminals. [13] Further, the ARCA provides: (d) For the purpose of an orderly transition, MIAA shall not renew any expired concession agreement relative to any service or operation currently being undertaken at the Ninoy Aquino International Airport Passenger Terminal I, or extend any concession agreement which may expire subsequent hereto, except to the extent that the continuation of the existing services and operations shall lapse on or before the In-Service Date. [14] Beyond iota of doubt, the implementation of the PIATCO Contracts, which the petitioners and petitionersintervenors denounce as unconstitutional and illegal, would deprive them of their sources of livelihood. Under settled jurisprudence, one's employment, profession, trade, or calling is a property right and is protected from wrongful interference.[15] It is also self evident that the petitioning service providers stand in imminent danger of losing legitimate business investments in the event the PIATCO Contracts are upheld. Over and above all these, constitutional and other legal issues with far-reaching economic and social implications are embedded in the cases at bar, hence, this Court liberally granted legal standing to the petitioning members of the House of Representatives. First, at stake is the build-operate-andtransfer contract of the countrys premier international airport with a projected capacity of 10 million passengers a year. Second, the huge amount of investment to complete the project is estimated to be P13,000,000,000.00. Third, the primary issues posed in the cases at bar demand a discussion and interpretation of the Constitution, the BOT Law and its implementing rules which have not been passed upon by this Court in previous cases. They can chart the future inflow of investment under the BOT Law. Before writing finis to the issue of legal standing, the Court notes the bid of new parties to participate in the cases at bar as respondents-intervenors, namely, (1) the PIATCO Employees and (2) NMTAI (collectively, the New Respondents-Intervenors). After the Courts Decision, the New RespondentsIntervenors filed separate Motions for Reconsideration-In-Intervention alleging prejudice and direct injury. PIATCO employees claim that they have a direct and personal interest [in the controversy]... since they stand to lose their jobs should the governments contract with PIATCO be declared null and void. [16] NMTAI, on the other hand, represents itself as a corporation composed of responsible tax-paying Filipino citizens with the objective of protecting and sustaining the rights of its members to civil liberties, decent livelihood, opportunities for social advancement, and to a good, conscientious and honest government. [17] The Rules of Court govern the time of filing a Motion to Intervene. Section 2, Rule 19 provides that a Motion to Intervene should be filed before rendition of judgment.... The New Respondents-Intervenors filed their separate motions after a decision has been promulgated in the present cases. They have not offered any worthy explanation to justify their late intervention. Consequently, their Motions for Reconsideration-InIntervention are denied for the rules cannot be relaxed to await litigants who sleep on their rights. In any
event, a sideglance at these late motions will show that they hoist no novel arguments.
c. Failure to Implead an Indispensable Party PIATCO next contends that petitioners should have impleaded the Republic of the Philippines as an indispensable party. It alleges that petitioners sued the DOTC, MIAA and the DPWH in their own capacities or as implementors of the PIATCO Contracts and not as a contract party or as representatives of the Government of the Republic of the Philippines. It then leapfrogs to the conclusion that the absence of an indispensable party renders ineffectual all the proceedings subsequent to the filing of the complaint including the judgment.[18] PIATCOs allegations are inaccurate. The petitions clearly bear out that public respondents DOTC and MIAA were impleaded as parties to the PIATCO Contracts and not merely as their implementors. The separate petitions filed by the MIAA employees [19] and members of the House of Representatives[20] alleged that public respondents are impleaded herein because they either executed the PIATCO Contracts or are undertaking acts which are related to the PIATCO Contracts. They are interested and indispensable parties to this Petition. [21] Thus, public respondents DOTC and MIAA were impleaded as parties to the case for having executed the contracts. More importantly, it is also too late in the day for PIATCO to raise this issue. If PIATCO seriously views the non-inclusion of the Republic of the Philippines as an indispensable party as fatal to the petitions at bar, it should have raised the issue at the onset of the proceedings as a ground to dismiss. PIATCO cannot litigate issues on a piecemeal basis, otherwise, litigations shall be like a shore that knows no end. In any event, the Solicitor General, the legal counsel of the Republic, appeared in the cases at bar in representation of the interest of the government.
II
Pre-qualification of PIATCO The Implementing Rules provide for the unyielding standards the PBAC should apply to determine the financial capability of a bidder for pre-qualification purposes: (i) proof of the ability of the project proponent and/or the consortium to provide a minimum amount of equity to the project and (ii) a letter testimonial from reputable banks attesting that the project proponent and/or members of the consortium are banking with them, that they are in good financial standing, and that they have adequate resources . [22] The evident intent of these standards is to protect the integrity and insure the viability of the project by seeing to it that the proponent has the financial capability to carry it out. As a further measure to achieve this intent, it maintains a certain debt-to-equity ratio for the project. At the pre-qualification stage, it is most important for a bidder to show that it has the financial capacity to undertake the project by proving that it can fulfill the requirement on minimum amount of equity. For this purpose, the Bid Documents require in no uncertain terms: The minimum amount of equity to which the proponents financial capability will be based shall be thirty percent (30%) of the project cost instead of the twenty percent (20%) specified in Section 3.6.4 of the Bid Documents. This is to correlate with the required debt-to-equity ratio of 70:30 in Section 2.01a of the draft concession agreement. The debt portion of the project financing should not exceed 70% of the actual project cost.[23] In relation thereto, section 2.01 (a) of the ARCA provides:
Section 2.01 Project Scope. The scope of the project shall include: (a) Financing the project at an actual Project cost of not less than Three Hundred Fifty Million United States Dollars (US$350,000,000.00) while maintaining a debt-to-equity ratio of 70:30, provided that if the actual Project costs should exceed the aforesaid amount, Concessionaire shall ensure that the debt-to-equity ratio is maintained;[24] Under the debt-to-equity restriction, a bidder may only seek financing of the NAIA IPT III Project up to 70% of the project cost. Thirty percent (30%) of the cost must come in the form of equity or investment by the bidder itself. It cannot be overly emphasized that the rules require a minimum amount of equity to ensure that a bidder is not merely an operator or implementor of the project but an investor with a substantial interest in its success . The minimum equity requirement also guarantees the Philippine government and the general public, who are the ultimate beneficiaries of the project, that a bidder will not be indifferent to the completion of the project. The discontinuance of the project will irreparably damage public interest more than private interest. In the cases at bar, after applying the investment ceilings provided under the General Banking Act and considering the maximum amounts that each member of the consortium may validly invest in the project, it is daylight clear that the Paircargo Consortium, at the time of pre-qualification, had a net worth equivalent to only 6.08% of the total estimated project cost. [25] By any reckoning, a showing by a bidder that at the time of pre-qualification its maximum funds available for investment amount to only 6.08% of the project cost is insufficient to satisfy the requirement prescribed by the Implementing Rules that the project proponent must have the ability to provide at least 30% of the total estimated project cost. In peso and centavo terms, at the time of pre-qualification, the Paircargo Consortium had maximum funds available for investment to the NAIA IPT III Project only in the amount of P558,384,871.55, when it had to show that it had the ability to provide at least P2,755,095,000.00. The huge disparity cannot be dismissed as of de minimis importance considering the high public interest at stake in the project. PIATCO nimbly tries to sidestep its failure by alleging that it submitted not only audited financial statements but also testimonial letters from reputable banks attesting to the good financial standing of the Paircargo Consortium. It contends that in adjudging whether the Paircargo Consortium is a pre-qualified bidder, the PBAC should have considered not only its financial statements but other factors showing its financial capability. Anent this argument, the guidelines provided in the Bid Documents are instructive: 3.3.4 FINANCING AND FINANCIAL PREQUALIFICATIONS REQUIREMENTS Minimum Amount of Equity Each member of the proponent entity is to provide evidence of networth in cash and assets representing the proportionate share in the proponent entity. Audited financial statements for the past five (5) years as a company for each member are to be provided. Project Loan Financing Testimonial letters from reputable banks attesting that each of the members of the ownership entity are banking with them, in good financial standing and having adequate resources are to be provided.[26] It is beyond refutation that Paircargo Consortium failed to prove its ability to provide the amount of at least P2,755,095,000.00, or 30% of the estimated project cost. Its submission of testimonial letters attesting to its good financial standing will not cure this failure. At best, the said letters merely establish its
credit worthiness or its ability to obtain loans to finance the project. They do not, however, prove compliance with the aforesaid requirement of minimum amount of equity in relation to the prescribed debt-to-equity ratio. This equity cannot be satisfied through possible loans. In sum, we again hold that given the glaring gap between the net worth of Paircargo and PAGS combined with the amount of maximum funds that Security Bank may invest by equity in a non-allied undertaking, Paircargo Consortium, at the time of pre-qualification, failed to show that it had the ability to provide 30% of the project cost and necessarily, its financial capability for the project cannot pass muster.
III
1997 Concession Agreement Again, we brightline the principle that in public bidding, bids are submitted in accord with the prescribed terms, conditions and parameters laid down by government and pursuant to the requirements of the project bidded upon. In light of these parameters, bidders formulate competing proposals which are evaluated to determine the bid most favorable to the government. Once the contract based on the bid most favorable to the government is awarded, all that is left to be done by the parties is to execute the necessary agreements and implement them. There can be no substantial or material change to the parameters of the project, including the essential terms and conditions of the contract bidded upon, after the contract award. If there were changes and the contracts end up unfavorable to government, the public bidding becomes a mockery and the modified contracts must be struck down. Respondents insist that there were no substantial or material amendments in the 1997 Concession Agreement as to the technical aspects of the project, i.e., engineering design, technical soundness, operational and maintenance methods and procedures of the project or the technical proposal of PIATCO. Further, they maintain that there was no modification of the financial features of the project, i.e., minimum project cost, debt-to-equity ratio, the operations and maintenance budget, the schedule and amount of annual guaranteed payments, or the financial proposal of PIATCO. A discussion of some of these changes to determine whether they altered the terms and conditions upon which the bids were made is again in order.
a. Modification on Fees and Charges to be collected by PIATCO PIATCO clings to the contention that the removal of the groundhandling fees, airline office rentals and porterage fees from the category of fees subject to MIAA regulation in the 1997 Concession Agreement does not constitute a substantial amendment as these fees are not really public utility fees. In other words, PIATCO justifies the re-classification under the 1997 Concession Agreement on the ground that these fees are non-public utility revenues . We disagree. The removal of groundhandling fees, airline office rentals and porterage fees from the category of Public Utility Revenues under the draft Concession Agreement and its re-classification to NonPublic Utility Revenues under the 1997 Concession Agreement is significant and has far reaching consequence . The 1997 Concession Agreement provides that with respect to Non-Public Utility Revenues, which include groundhandling fees, airline office rentals and porterage fees,[27] [PIATCO] may make any adjustments it deems appropriate without need for the consent of GRP or any government agency .[28] In contrast, the draft Concession Agreement specifies these fees as part of Public Utility Revenues and can be adjusted only once every two years and in accordance with the Parametric Formula and the adjustments shall be made effective only after the written express approval of the MIAA.[29] The Bid Documents themselves clearly provide:
4.2.3 Mechanism for Adjustment of Fees and Charges 4.2.3.1 Periodic Adjustment in Fees and Charges Adjustments in the fees and charges enumerated hereunder, whether or not falling within the purview of public utility revenues, shall be allowed only once every two years in accordance with the parametric formula attached hereto as Annex 4.2f. Provided that the adjustments shall be made effective only after the written express approval of MIAA. Provided, further, that MIAAs approval, shall be contingent only on conformity of the adjustments to the said parametric formula. The fees and charges to be regulated in the above manner shall consist of the following: .... c) groundhandling fees; d) rentals on airline offices; .... (f) porterage fees; . . . .[30] The plain purpose in re-classifying groundhandling fees, airline office rentals and porterage fees as nonpublic utility fees is to remove them from regulation by the MIAA. In excluding these fees from government regulation, the danger to public interest cannot be downplayed. We are not impressed by the effort of PIATCO to depress this prejudice to public interest by its contention that in the 1997 Concession Agreement governing Non-Public Utility Revenues, it is provided that [PIATCO] shall at all times be judicious in fixing fees and charges constituting Non-Public Utility Revenues in order to ensure that End Users are not unreasonably deprived of services. [31] PIATCO then peddles the proposition that the said provision confers upon MIAA full regulatory powers to ensure that PIATCO is charging nonpublic utility revenues at judicious rates. [32] To the trained eye, the argument will not fly for it is obviously non sequitur. Fairly read, it is PIATCO that wields the power to determine the judiciousness of the said fees and charges. In the draft Concession Agreement the power was expressly lodged with the MIAA and any adjustment can only be done once every two years. The changes are not insignificant specks as interpreted by PIATCO. PIATCO further argues that there is no substantial change in the 1997 Concession Agreement with respect to fees and charges PIATCO is allowed to impose which are not covered by Administrative Order No. 1, Series of 1993[33] as the relevant provision of the 1997 Concession Agreement is practically identical with the draft Concession Agreement. [34] We are not persuaded. Under the draft Concession Agreement, PIATCO may impose fees and charges other than those fees and charges previously imposed or collected at the Ninoy Aquino International Airport Passenger Terminal I, subject to the written approval of MIAA.[35] Further, the draft Concession Agreement provides that MIAA reserves the right to regulate these new fees and charges if in its judgment the users of the airport shall be deprived of a free option for the services they cover.[36] In contrast, under the 1997 Concession Agreement, the MIAA merely retained the right to approve any imposition of new fees and charges which were not previously collected at the Ninoy Aquino International Airport Passenger Terminal I. The agreement did not contain an equivalent provision allowing MIAA to reserve the right to regulate the adjustments of these new fees and charges. [37] PIATCO justifies the amendment by arguing that MIAA
can establish terms before approval of new fees and charges, inclusive of the mode for their adjustment. PIATCOs stance is again a strained one. There would have been no need for an amendment if there were no change in the power to regulate on the part of MIAA. The deletion of MIAAs reservation of its right to regulate the price adjustments of new fees and charges can have no other purpose but to dilute the extent of MIAAs regulation in the collection of these fees. Again, the amendment diminished the authority of MIAA to protect the public interest in case of abuse by PIATCO.
b. Assumption by the Government of the liabilities of PIATCO in the event of the latters default PIATCO posits the thesis that the new provisions in the 1997 Concession Agreement in case of default by PIATCO on its loans were merely meant to prescribe and limit the rights of PIATCOs creditors with regard to the NAIA Terminal III. PIATCO alleges that Section 4.04 of the 1997 Concession Agreement simply provides that PIATCOs creditors have no right to foreclose the NAIA Terminal III. We cannot concur. The pertinent provisions of the 1997 Concession Agreement state: Section 4.04 Assignment. .... (b) In the event Concessionaire should default in the payment of an Attendant Liability, and the default has resulted in the acceleration of the payment due date of the Attendant Liability prior to its stated date of maturity, the Unpaid Creditors and Concessionaire shall immediately inform GRP in writing of such default. GRP shall, within one hundred eighty (180) Days from receipt of the joint written notice of the Unpaid Creditors and Concessionaire, either (i) take over the Development Facility and assume the Attendant Liabilities , or (ii) allow the Unpaid Creditors, if qualified, to be substituted as concessionaire and operator of the Development Facility in accordance with the terms and conditions hereof, or designate a qualified operator acceptable to GRP to operate the Development Facility, likewise under the terms and conditions of this Agreement; Provided that if at the end of the 180-day period GRP shall not have served the Unpaid Creditors and Concessionaire written notice of its choice, GRP shall be deemed to have elected to take over the Development Facility with the concomitant assumption of Attendant Liabilities . (c) If GRP should, by written notice, allow the Unpaid Creditors to be substituted as concessionaire, the latter shall form and organize a concession company qualified to take over the operation of the Development Facility. If the concession company should elect to designate an operator for the Development Facility, the concession company shall in good faith identify and designate a qualified operator acceptable to GRP within one hundred eighty (180) days from receipt of GRPs written notice. If the concession company, acting in good faith and with due diligence, is unable to designate a qualified operator within the aforesaid period, then GRP shall at the end of the 180-day period take over the Development Facility and assume Attendant Liabilities . A plain reading of the above provision shows that it spells out in limpid language the obligation of government in case of default by PIATCO on its loans. There can be no blinking from the fact that in case of PIATCOs default, the government will assume PIATCOs Attendant Liabilities as defined in the 1997 Concession Agreement.[38] This obligation is not found in the draft Concession Agreement and the change runs roughshod to the spirit and policy of the BOT Law which was crafted precisely to prevent government from incurring financial risk. In any event, PIATCO pleads that the entire agreement should not be struck down as the 1997 Concession Agreement contains a separability clause.
The plea is bereft of merit. The contracts at bar which made a mockery of the bidding process cannot be upheld and must be annulled in their entirety for violating law and public policy. As demonstrated, the contracts were substantially amended after their award to the successful bidder on terms more beneficial to PIATCO and prejudicial to public interest. If this flawed process would be allowed, public bidding will cease to be competitive and worse, government would not be favored with the best bid. Bidders will no longer bid on the basis of the prescribed terms and conditions in the bid documents but will formulate their bid in anticipation of the execution of a future contract containing new and better terms and conditions that were not previously available at the time of the bidding. Such a public bidding will not inure to the public good. The resulting contracts cannot be given half a life but must be struck down as totally lawless.
IV.
Direct Government Guarantee The respondents further contend that the PIATCO Contracts do not contain direct government guarantee provisions. They assert that section 4.04 of the ARCA, which superseded sections 4.04(b) and (c), Article IV of the 1997 Concession Agreement, is but a clarification and explanation [39] of the securities allowed in the bid documents. They allege that these provisions merely provide for compensation to PIATCO[40] in case of a government buy-out or takeover of NAIA IPT III. The respondents, particularly respondent PIATCO, also maintain that the guarantee contained in the contracts, if any, is an indirect guarantee allowed under the BOT Law, as amended. [41] We do not agree. Section 4.04(c), Article IV [42] of the ARCA should be read in conjunction with section 1.06, Article I,[43] in the same manner that sections 4.04(b) and (c), Article IV of the 1997 Concession Agreement should be related to Article 1.06 of the same contract. Section 1.06, Article I of the ARCA and its counterpart provision in the 1997 Concession Agreement define in no uncertain terms the meaning of attendant liabilities. They tell us of the amounts that the Government has to pay in the event respondent PIATCO defaults in its loan payments to its Senior Lenders and no qualified transferee or nominee is chosen by the Senior Lenders or is willing to take over from respondent PIATCO. A reasonable reading of all these relevant provisions would reveal that the ARCA made the Government liable to pay all amounts ... from time to time owed or which may become owing by Concessionaire [PIATCO] to Senior Lenders or any other persons or entities who have provided, loaned, or advanced funds or provided financial facilities to Concessionaire [PIATCO] for the Project [NAIA Terminal 3]. [44] These amounts include without limitation, all principal, interest, associated fees, charges, reimbursements, and other related expenses... whether payable at maturity, by acceleration or otherwise. [45] They further include amounts owed by respondent PIATCO to its professional consultants and advisers, suppliers, contractors and sub-contractors as well as fees, charges and expenses of any agents or trustees of the Senior Lenders or any other persons or entities who have provided loans or financial facilities to respondent PIATCO in relation to NAIA IPT III.[46] The counterpart provision in the 1997 Concession Agreement specifying the attendant liabilities that the Government would be obligated to pay should PIATCO default in its loan obligations is equally onerous to the Government as those contained in the ARCA. According to the 1997 Concession Agreement, in the event the Government is forced to prematurely take over NAIA IPT III as a result of respondent PIATCOs default in the payment of its loan obligations to its Senior Lenders, it would be liable to pay the following amounts as attendant liabilities: Section 1.06. Attendant Liabilities Attendant Liabilities refer to all amounts recorded and from time to time outstanding in the books of the Concessionaire as owing to Unpaid Creditors who have provided, loaned or advanced funds actually used for the Project, including all interests, penalties, associated fees, charges, surcharges, indemnities, reimbursements and
other related expenses, and further including amounts owed by Concessionaire to its suppliers, contractors and subcontractors. [47] These provisions reject respondents contention that what the Government is obligated to pay, in the event that respondent PIATCO defaults in the payment of its loans, is merely termination payment or just compensation for its takeover of NAIA IPT III. It is clear from said section 1.06 that what the Government would pay is the sum total of all the debts, including all interest, fees and charges , that respondent PIATCO incurred in pursuance of the NAIA IPT III Project. This reading is consistent with section 4.04 of the ARCA itself which states that the Government shall make a termination payment to Concessionaire [PIATCO] equal to the Appraised Value (as hereinafter defined) of the Development Facility [NAIA Terminal III] or the sum of the Attendant Liabilities, if greater . For sure, respondent PIATCO will not receive any amount less than sufficient to cover its debts, regardless of whether or not the value of NAIA IPT III, at the time of its turn over to the Government, may actually be less than the amount of PIATCOs debts. The scheme is a form of direct government guarantee for it is undeniable that it leaves the government no option but to pay the attendant liabilities in the event that the Senior Lenders are unable or unwilling to appoint a qualified nominee or transferee as a result of PIATCOs default in the payment of its Senior Loans. As we stressed in our Decision, this Court cannot depart from the legal maxim that those that cannot be done directly cannot be done indirectly. This is not to hold, however, that indirect government guarantee is not allowed under the BOT Law, as amended. The intention to permit indirect government guarantee is evident from the Senate deliberations on the amendments to the BOT Law. The idea is to allow for reasonable government undertakings, such as to authorize the project proponent to undertake related ventures within the project area, in order to encourage private sector participation in development projects. [48] An example cited by then Senator Gloria MacapagalArroyo, one of the sponsors of R.A. No. 7718, is the Mandaluyong public market which was built under the Build-and-Transfer (BT) scheme wherein instead of the government paying for the transfer, the project proponent was allowed to operate the upper floors of the structure as a commercial mall in order to recoup their investments.[49] It was repeatedly stressed in the deliberations that in allowing indirect government guarantee, the law seeks to encourage both the government and the private sector to formulate reasonable and innovative government undertakings in pursuance of BOT projects. In no way, however, can the government be made liable for the debts of the project proponent as this would be tantamount to a direct government guarantee which is prohibited by the law. Such liability would defeat the very purpose of the BOT Law which is to encourage the use of private sector resources in the construction, maintenance and/or operation of development projects with no, or at least minimal, capital outlay on the part of the government. The respondents again urge that should this Court affirm its ruling that the PIATCO Contracts contain direct government guarantee provisions, the whole contract should not be nullified. They rely on the separability clause in the PIATCO Contracts. We are not persuaded. The BOT Law and its implementing rules provide that there are three (3) essential requisites for an unsolicited proposal to be accepted: (1) the project involves a new concept in technology and/or is not part of the list of priority projects, (2) no direct government guarantee, subsidy or equity is required, and (3) the government agency or local government unit has invited by publication other interested parties to a public bidding and conducted the same.[50] The failure to fulfill any of the requisites will result in the denial of the proposal. Indeed, it is further provided that a direct government guarantee, subsidy or equity provision will necessarily disqualify a proposal from being treated and accepted as an unsolicited proposal. [51] In fine, the mere inclusion of a direct government guarantee in an unsolicited proposal is fatal to the proposal. There is more reason to invalidate a contract if a direct government guarantee provision is inserted later in the contract via a backdoor amendment. Such an amendment constitutes a crass circumvention of the BOT Law and renders the entire contract void.
Respondent PIATCO likewise claims that in view of the fact that other BOT contracts such as the JANCOM contract, the Manila Water contract and the MRT contract had been considered valid, the PIATCO contracts should be held valid as well. [52] There is no parity in the cited cases. For instance, a reading of Metropolitan Manila Development Authority v. JANCOM Environmental Corporation[53] will show that its issue is different from the issues in the cases at bar. In the JANCOM case, the main issue is whether there is a perfected contract between JANCOM and the Government. The resolution of the issue hinged on the following: (1) whether the conditions precedent to the perfection of the contract were complied with; (2) whether there is a valid notice of award; and (3) whether the signature of the Secretary of the Department of Environment and Natural Resources is sufficient to bind the Government. These issue and sub-issues are clearly distinguishable and different. For one, the issue of direct government guarantee was not considered by this Court when it held the JANCOM contract valid, yet, it is a key reason for invalidating the PIATCO Contracts. It is a basic principle in law that cases with dissimilar facts cannot have similar disposition. This Court, however, is not unmindful of the reality that the structures comprising the NAIA IPT III facility are almost complete and that funds have been spent by PIATCO in their construction. For the government to take over the said facility, it has to compensate respondent PIATCO as builder of the said structures. The compensation must be just and in accordance with law and equity for the government can not unjustly enrich itself at the expense of PIATCO and its investors.
II.
Temporary takeover of business affected with public interest in times of national emergency Section 17, Article XII of the 1987 Constitution grants the State in times of national emergency the right to temporarily take over the operation of any business affected with public interest. This right is an exercise of police power which is one of the inherent powers of the State. Police power has been defined as the "state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare."[54] It consists of two essential elements. First, it is an imposition of restraint upon liberty or property. Second, the power is exercised for the benefit of the common good. Its definition in elastic terms underscores its all-encompassing and comprehensive embrace.[55] It is and still is the most essential, insistent, and illimitable [56] of the States powers. It is familiar knowledge that unlike the power of eminent domain, police power is exercised without provision for just compensation for its paramount consideration is public welfare. [57] It is also settled that public interest on the occasion of a national emergency is the primary consideration when the government decides to temporarily take over or direct the operation of a public utility or a business affected with public interest. The nature and extent of the emergency is the measure of the duration of the takeover as well as the terms thereof. It is the State that prescribes such reasonable terms which will guide the implementation of the temporary takeover as dictated by the exigencies of the time. As we ruled in our Decision, this power of the State can not be negated by any party nor should its exercise be a source of obligation for the State. Section 5.10(c), Article V of the ARCA provides that respondent PIATCO shall be entitled to reasonable compensation for the duration of the temporary takeover by GRP, which compensation shall take into account the reasonable cost for the use of the Terminal and/or Terminal Complex.[58] It clearly obligates the government in the exercise of its police power to compensate respondent PIATCO and this obligation is offensive to the Constitution. Police power can not be diminished, let alone defeated by any contract for its paramount consideration is public welfare and interest.[59] Again, respondent PIATCOs reliance on the case of Heirs of Suguitan v. City of Mandaluyong [60] to
justify its claim for reasonable compensation for the Governments temporary takeover of NAIA IPT III in times of national emergency is erroneous. What was involved in Heirs of Suguitan is the exercise of the states power of eminent domain and not of police power, hence, just compensation was awarded. The cases at bar will not involve the exercise of the power of eminent domain.
III.
Monopoly Section 19, Article XII of the 1987 Constitution mandates that the State prohibit or regulate monopolies when public interest so requires. Monopolies are not per se prohibited. Given its susceptibility to abuse, however, the State has the bounden duty to regulate monopolies to protect public interest. Such regulation may be called for, especially in sensitive areas such as the operation of the countrys premier international airport, considering the public interest at stake. By virtue of the PIATCO contracts, NAIA IPT III would be the only international passenger airport operating in the Island of Luzon, with the exception of those already operating in Subic Bay Freeport Special Economic Zone (SBFSEZ), Clark Special Economic Zone (CSEZ) and in Laoag City. Undeniably, the contracts would create a monopoly in the operation of an international commercial passenger airport at the NAIA in favor of PIATCO. The grant to respondent PIATCO of the exclusive right to operate NAIA IPT III should not exempt it from regulation by the government. The government has the right, indeed the duty, to protect the interest of the public. Part of this duty is to assure that respondent PIATCOs exercise of its right does not violate the legal rights of third parties. We reiterate our ruling that while the service providers presently operating at NAIA Terminals I and II do not have the right to demand for the renewal or extension of their contracts to continue their services in NAIA IPT III, those who have subsisting contracts beyond the In-Service Date of NAIA IPT III can not be arbitrarily or unreasonably treated. Finally, the Respondent Congressmen assert that at least two (2) committee reports by the House of Representatives found the PIATCO contracts valid and contend that this Court, by taking cognizance of the cases at bar, reviewed an action of a co-equal body. [61] They insist that the Court must respect the findings of the said committees of the House of Representatives. [62] With due respect, we cannot subscribe to their submission. There is a fundamental difference between a case in court and an investigation of a congressional committee. The purpose of a judicial proceeding is to settle the dispute in controversy by adjudicating the legal rights and obligations of the parties to the case. On the other hand, a congressional investigation is conducted in aid of legislation.[63] Its aim is to assist and recommend to the legislature a possible action that the body may take with regard to a particular issue, specifically as to whether or not to enact a new law or amend an existing one. Consequently, this Court cannot treat the findings in a congressional committee report as binding because the facts elicited in congressional hearings are not subject to the rigors of the Rules of Court on admissibility of evidence. The Court in assuming jurisdiction over the petitions at bar simply performed its constitutional duty as the arbiter of legal disputes properly brought before it, especially in this instance when public interest requires nothing less. WHEREFORE, the motions for reconsideration filed by the respondent PIATCO, respondent Congressmen and the respondents-in-intervention are DENIED with finality. SO ORDERED. Davide, Jr., C.J., Austria-Martinez, Corona, and Carpio-Morales, JJ., concur . Vitug, J., maintains his separate opinion in the main ponencia, promulgated on 05 May 2003. Panganiban, J., reiterate his separate opinion in the main case, promulgated on May 5, 2003. Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, and Azcuna, JJ., joins J. Vitugs separate opinion.
Carpio, J., no part. Callejo, Sr., J., joins J. Panganiban in his concurring opinion. Tinga, J., no part. Did not participate in the previous deliberations.
[1] G.R. No. 155547. [2] G.R. Nos. 155001, 155547, and 155661. [3] Id. [4] An Act Authorizing the Financing, Construction, Operation and Maintenance of Infrastructure Projects by the Private Sector. [5] Ignacio v. Court of Appeals, G.R. Nos. L-49541-52164, March 28, 1980; 96 SCRA 648, 652-653. [6] Rollo , G.R. No. 155001, pp. 3102-3103. [7] Alger Electric, Inc. v. Court of Appeals, G.R. No. L-34298, February 28, 1985, 135 SCRA 37, 43. [8] J.H. FRIEDENTHAL, M. K. KANE, A. R. MILLER, CIVIL PROCEDURE 328 (1985). [9] Section 2, Rule 3. [10] J. COUND, CIVIL PROCEDURE: CASES & MATERIALS, 523 (1980). [11] Bayan v. Zamora, G.R. No. 138570, October 10, 2000; 342 SCRA 449, 478; Kilosbayan, Inc. v. Morato, G.R. No. 118910, July
17, 1995, 246 SCRA 540, 562-563, citing Baker v. Carr, 369 U.S. 186, 7 L. Ed. 633 (1962).
[12] Supra note 11. [13] Section 3.02 (b), ARCA, November 26, 1998; Section 3.02(b) of the 1997 Concession Agreement, July 12, 1997. [14] Section 3.01 (d), ARCA. Equivalent provision is similarly numbered in the 1997 Concession Agreement. [15] Ferrer, et al. v. NLRC, G.R. No. 100898, July 5, 1993, 224 SCRA 410, 421 citing Callanta vs. Carnation Philippines, Inc., G.R.
No. 70615. October 28, 1986, 145 SCRA 268.

[16] Rollo , G.R. No. 15501, pp. 3096-3097. [17] Id. at p. 3098. [18] Id. at pp. 3270-3271. [19] G.R. No. 155661. [20] G.R. No. 155547. [21] Rollo , G.R. No. 155661, p. 17; Rollo , G.R. No. 155547, p. 14. [22] Section 5.4 Pre-qualification Requirements.
. c. Financial Capability: The project proponent must have adequate capability to sustain the financing requirements for the detailed engineering design, construction and/or operation and maintenance phases of the project, as the case may be. For purposes of pre-qualification, this capability shall be measured in terms of (i) proof of the ability of the project proponent and/or the consortium to provide a minimum amount of equity to the project, and (ii) a letter testimonial from reputable banks attesting that the project proponent and/or members of the consortium are banking with them, that they are in good financial standing, and that they have adequate resources . The government agency/LGU concerned shall determine on a project-to-project basis and before pre-qualification, the minimum amount of equity needed. ( emphasis supplied ).
[23] Emphasis supplied. [24] The equivalent provision in the 1997 Concession Agreement states:
Section 2.01 Project Scope. The scope of the project shall include: (a) Financing the project at an actual Project cost of not less than Three Hundred Fifty Million United States Dollars (US$350,000,000.00) while maintaining a debt-to-equity ratio of 70:30, or ensuring that the debt portion of the project financing does not exceed 70% of the actual Project cost; ...
[25] Combined net worth of the Paircargo Consortium is P558,384,871.55 out of an estimated project cost of US$350,000,000.00 or
approximately P9,183,650,000.00.
[26] Rollo , G.R. No. 155547, p. 392. Emphasis supplied. [27] Under section 1.33 of the 1997 Concession Agreement, fees classified as Public Utility Revenues are: (a) aircraft parking fees;
(b) aircraft tacking fees; (c) check-in counter fees; and (d) Terminal Fees. Section 1.27 of the 1997 Concession Agreement provides that Non-Public Utility Revenues refer to all other income not classified as Public Utility Revenues derived within the Terminal and the Terminal Complex
[28] Section 6.06, 1997 Concession Agreement. [29] Section 6.03, Draft Concession Agreement. [30] Rollo , G.R. No. 155547, pp. 417-418. Emphasis supplied. [31] Section 6.03 (c), 1997 Concession Agreement. [32] Rollo , G.R. No. 155001, p. 3211. Emphasis supplied. [33] Administrative Order No. 1, Series of 1993 enumerates the fees and charges that may be imposed by MIAA pursuant to its
Charter.
[34] Rollo , G. R. No. 155001 , p. 3212. [35] Par. 2, Section 6.01, Draft Concession Agreement. [36] Par. 2, Section 6.03, Draft Concession Agreement. The pertinent portions provide:
Section 6.03. Periodic Adjustment in Fees and Charges . Adjustments in the aircraft parking fees, aircraft tacking fees, groundhandling fees, rentals and airline offices, check-in-counter rentals and porterage fees shall be allowed only once every two years and in accordance with the Parametric Formula attached hereto as Annex F. Pro vided that adjustments shall be made effective only after the written express approval of the MIAA. Pro vided, further, that such approval of the MIAA, shall be contingent only on the conformity of the adjustments with the above said parametric formula. The first adjustment shall be made prior to the In-Service Date of the Terminal. The MIAA reserves the right to regulate under the foregoing terms and conditions the lobby and vehicular parking fees and other new fees and charges as contemplated in paragraph 2 of Section 6.01 if in its judgment the users of the airport shall be deprived of a free option for the services they cover. Emphasis supplied. .
[37] Section 6.01 (b), 1997 Concession Agreement. [38] The term Attendant Liabilities under the 1997 Concession Agreement is defined as:
Attendant Liabilities refer to all amounts recorded and from time to time outstanding in the books of the Concessionaire as owing to Unpaid Creditors who have provided, loaned or advanced funds actually used for the Project, including all interests, penalties, associated fees, charges, surcharges, indemnities, reimbursements and other related expenses, and further including amounts owed by Concessionaire to its suppliers, contractors and sub-contractors. (Section 1.06)
[39] Rollo , G.R. No. 15501, p. 3065. [40] Id. at p. 3071. [41] Id. at pp. 3069-3070.
[42] Amended and Restated Concession Agreement dated November 26, 1998.
Section 4.04 Security . (c) GRP agrees with Concessionaire (PIATCO) that it shall negotiate in good faith and enter into direct agreement with the Senior Lenders , or with an agent of such Senior Lenders (which agreement shall be subject to the approval of the Bangko Sentral ng Pilipinas), in such form as may be reasonably acceptable to both GRP and Senior Lenders, wit regard, inter alia, to the following parameters: . (iv) If the Concessionaire [PIATCO] is in default under a payment obligation owed to the Senior Lenders , and as a result thereof the Senior Lenders have become entitled to accelerate the Senior Loans, the Senior Lenders shall have the right to notify GRP of the same, and without prejudice to any other rights of the Senior Lenders or any Senior Lenders agent may have (including without limitation under security interests granted in favor of the Senior Lenders), to either in good faith identify and designate a nominee which is qualified under sub-clause (viii)(y) below to operate the Development Facility [NAIA Terminal 3] or transfer the Concessionaires [PIATCO] rights and obligations under this Agreement to a transferee which is qualified under sub-clause (viii) below; . (vi) if the Senior Lenders, acting in good faith and using reasonable efforts, are unable to designate a nominee or effect a transfer in terms and conditions satisfactory to the Senior Lenders within one hundred eighty (180) days after giving GRP notice as referred to respectively in (iv) or (v) above, then GRP and the Senior Lenders shall endeavor in good faith to enter into any other arrangement relating to the Development Facility [NAIA Terminal 3] ( other than a turnover of the Development Facility [NAIA Terminal 3] to GRP) within the following one hundred eighty (180) days. If no agreement relating to the Development Facility [NAIA Terminal 3] is arrived at by GRP and the Senior Lenders within the said 180-day period, then at the end thereof the Development Facility [NAIA Terminal 3] shall be transferred by the Concessionaire [PIATCO] to GRP or its designee and GRP shall make a termination payment to Concessionaire [PIATCO] equal to the Appraised Value (as hereinafter defined) of the Development Facility [NAIA Terminal 3] or the sum of the Attendant Liabilities, if greater. Notwithstanding Section 8.01(c) hereof, this Agreement shall be deemed terminated upon the transfer of the Development Facility [NAIA Terminal 3] to GRP pursuant hereto; .
[43] Amended and Restated Concession Agreement (ARCA) dated November 26, 1998.
Section 1.06. Attendant Liabilities Attendant Liabilities refer to all amounts in each case supported by verifiable e vidence from time to time owed or which may become owing by Concessionaire [PIATCO] to Senior Lenders or any other persons or entities who have provided, loaned, or advanced funds or provide d financial facilities to Concessionaire [PIATCO] for the Project [NAIA Terminal 3], including, without limitation, all principal, interest, associated fees, charges, reimbursements, and other related expenses (including the fees, charges and expenses of any agents or trustees of such persons or entities), whether payable at maturity, by acceleration or otherwise, and further including amounts owed by Concessionaire [PIATCO] to its professional consultants and advisers, suppliers, contractors and sub-contractors.
[44] Section 1.06, Article I, Amended and Restated Concession Agreement. [45] Id. Emphasis supplied. [46] Id. Emphasis supplied. [47] Emphasis supplied. [48] III Record of the Senate 598, 602. [49] Id. at 455-456. [50] Section 4-A, Republic Act No. 7718, as amended, May 5, 1994; Section 11.1, Rule 11, Implementing Rules and Regulations. [51] Section 11.3, Rule 11, Implementing Rules and Regulations. [52] Rollo , G.R. No. 15501, pp. 3073-3076.
[53] G.R. No. 147465, January 20, 2002; 375 SCRA 320. [54] Philippine Association of Service Pro viders Co., Inc. v. Franklin M. Drilon, et al., G.R. No. L-81958, June 30, 1988 citing Edu
v. Ericta, G.R. No. L-32096, October 24, 1970, 35 SCRA 481, 487.
[55] Id. [56] Bataan Shipyard and Engineering Co., Inc. v. Presidential Commission on Good Government, G.R. No. 75885; May 27, 1987
citing Freund, The Police Power (Chicago, 1904), cited by Cruz, I.A., Constitutional Law; 4th ed., p. 42, Smith, Bell & Co. v. Natividad, 40 Phil. 136, U.S. v. Toribio, 15 Phil. 85, Churchill and Tait v. Rafferty, 32 Phil. 580, and Rubi v. Provincial Board of Mindoro, 39 Phil. 660; Florentian A. Lozano v. Antonio M. Martinez, G.R. No. L-63419, December 18, 1986; Alejandro Melchor, Jr. v. Jose L. Moya, et al., G.R. No. L-35256, March 17, 1983; 206 Phil 1; Ichong vs. Hernandez, L7995, May 31, 1957.
[57] Jose D. Sangalang, et al., v. Intermediate Appellate Court, et al., G.R. Nos. 71169, 74376, 76394, 78182, 82281 and 60727,
August 25, 1989.

[58] Section 5.10(c), Article V of the Amended and Restated Concession Agreement, November 26, 1998. [59] Taxicabs of Metro Manila, Inc., et al. v. Board of Transportation, et al., G.R. No. L-59234, September 30, 1982, 202 Phil. 925;
Ynot v. Intermediate Appellate Court, G.R. No. 74457, March 20, 1987; Presidential Commission on Good Government v. Pena, G.R. No. L-77663. April 12, 1988.
[60] 328 SCRA 137. [61] Rollo , G.R.No. 155547, pp. 3018-3020. [62] Id. [63] Arnault v. Nazareno, G.R. No. L-3820, July 18, 1950.
SPECIAL SECOND DIVISION COMMISSION ON HUMAN G.R. No. 155336 RIGHTS EMPLOYEES ASSOCIATION (CHREA) Present: Represented by its President, MARCIAL A. SANCHEZ, PUNO, JR., Chairman, Petitioner, AUSTRIA-MARTINEZ, CALLEJO, SR., TINGA, and - versus CHICO-NAZARIO, JJ. Promulgated: COMMISSION ON HUMAN July 21, 2006 RIGHTS, Respondent. x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

R E S O L U T I ON

CHICO-NAZARIO, J.: [1] in the above-entitled case, On 25 November 2004, the Court promulgated its Decision ruling in favor of the petitioner. The dispositive portion reads as follows:
WHEREFORE, the petition is GRANTED , the Decision dated 29 November 2001 of the Court of Appeals in CA-G.R. SP No. 59678 and its Resolution dated 11 September 2002 are hereby REVERSED and SET ASIDE. The ruling dated 29 March 1999 of the Civil Service CommissionNational Capital Region is REINSTATED. The Commission on Human Rights Resolution No. A98047 dated 04 September 1998, Resolution No. A98-055 dated 19 October 1998 and Resolution No. A98-062 dated 17 November 1998 without the approval of the Department of Budget and Management [2] are disallowed. No pronouncement as to costs.
[3]
A Motion for Reconsideration was consequently filed by the respondent to which [4] petitioner filed an Opposition. In its Motion, respondent prays in the main that this Court reconsiders its ruling that respondent is not among the constitutional bodies clothed with fiscal autonomy. [5] To recall, the facts of the case are as follows:
On 14 February 1998, Congress passed Republic Act No. 8522, otherwise known as the General Appropriations Act of 1998. It provided for Special Provisions Applicable to All Constitutional Offices Enjoying Fiscal Autonomy. The last portion of Article XXXIII covers the appropriations of the CHR. These special provisions state: 1. Organizational Structure. Any provision of law to the contrary notwithstanding and within the limits of their respective appropriations as authorized in this Act, the Constitutional Commissions and Offices enjoying fiscal autonomy are authorized to formulate and implement the organizational structures of their respective offices, to fix and determine the salaries, allowances, and other benefits of their personnel, and whenever public interest so requires, make adjustments in their personal services itemization including, but not limited to, the transfer of item or creation of new positions in their respective offices: PROVIDED, That officers and employees whose positions are affected by such reorganization or adjustments shall be granted retirement gratuities and separation pay in accordance with existing laws, which shall be payable from any unexpended balance of, or savings in the appropriations of their respective offices: PROVIDED, FURTHER, That the implementation hereof shall be in accordance with salary rates, allowances and other benefits authorized under compensation standardization laws. 2. Use of Savings. The Constitutional Commissions and Offices enjoying fiscal autonomy are hereby authorized to use savings in their respective appropriations for: (a) printing and/or publication of decisions, resolutions, and training information materials; (b) repair, maintenance and improvement of central and regional offices, facilities and equipment; (c) purchase of books, journals, periodicals and equipment; (d) necessary expenses for the employment of temporary, contractual and casual employees; (e) payment of extraordinary and miscellaneous expenses, commutable representation and transportation allowances, and fringe benefits for their officials and employees as may be authorized by law; and (f) other official purposes, subject to accounting and auditing rules and regulations. (Emphasis supplied) On the strength of this special provisions, the Commission on Human Rights [or CHR], through its then Chairperson Aurora P. Navarette-Recia and Commissioners Nasser A. Marohomsalic, Mercedes V. Contreras, Vicente P. Sibulo, and Jorge R. Coquia, promulgated Resolution No. A98-047 on 04 September 1998, adopting an upgrading and reclassification scheme among selected positions in the Commission, to wit: WHEREAS, the General Appropriations Act, FY 1998, R.A. No. 8522 has provided special provisions applicable to all Constitutional Offices enjoying Fiscal Autonomy, particularly on organizational structures and authorizes the same to formulate
and implement the organizational structures of their respective offices to fix and determine the salaries, allowances and other benefits of their respective personnel and whenever public interest so requires, make adjustments in the personnel services itemization including, but not limited to, the transfer of item or creation of new positions in their respective offices: PROVIDED, That officers and employees whose positions are affected by such reorganization or adjustments shall be granted retirement gratuities and separation pay in accordance with existing laws, which shall be payable from any unexpanded balance of, or savings in the appropriations of their respective offices; WHEREAS, the Commission on Human Rights is a member of the Constitutional Fiscal Autonomy Group (CFAG) and on July 24, 1998, CFAG passed an approved Joint Resolution No. 49 adopting internal rules implementing the special provisions heretoforth mentioned; NOW THEREFORE, the Commission by virtue of its fiscal autonomy hereby approves and authorizes the upgrading and augmentation of the commensurate amount generated from savings under Personal Services to support the implementation of this resolution effective Calendar Year 1998; Let the Human Resources Development Division (HRDD) prepare the necessary Notice of Salary Adjustment and other appropriate documents to implement this resolution; x x x (Emphasis supplied). Annexed to said resolution is the proposed creation of ten additional plantilla positions, namely: one Director IV position, with Salary Grade 28 for the Caraga Regional Office, four Security Officer II with Salary Grade 15, and five Process Servers, with Salary Grade 5 under the Office of the Commissioners. On 19 October 1998, CHR issued Resolution No. A98-055 providing for the upgrading or raising of salary grade of the following positions in the Commission: xxxx To support the implementation of such scheme, the CHR, in the same resolution, authorized the augmentation of a commensurate amount generated from savings under Personnel Services. By virtue of Resolution No. A98-062 dated 17 November 1998, the CHR collapsed the vacant positions in the body to provide additional source of funding for said staffing modification. Among the positions collapsed were: one Attorney III, four Attorney IV, one Chemist III, three Special Investigator I, one Clerk III, and one accounting Clerk II. The CHR forwarded said staffing modification and upgrading scheme to the Department of Budget and Management [DBM] with a request for its approval, but the DBM secretary Benjamin Diokno denied the request on the following justification: . . . Based on the evaluations made the request was not favorably considered as it effectively involved the elevation of the field units from divisions to services. The present proposal seeks further to upgrade the twelve (12) positions of Attorney VI, SG-26 to Director IV, SG-28. This would elevate the field units to a bureau or regional office, a level even higher than the one previously denied. The request to upgrade the three (3) positions of Director III, SG-27 to Director IV, SG-28, in the Central Office in effect would elevate the services to Office and change the context from support to
substantive without actual change in functions. In the absence of a specific provision of law which may be used as a legal basis to elevate the level of divisions to a bureau or regional office, and the services to offices, we reiterate our previous stand denying the upgrading of the twelve (12) positions of Attorney VI, SG-26 to Director III, SG-27 or Director IV, SG-28, in the Field Operations Office (FOO) and three (3) Director III, SG-27 to Director IV, SG-28 in the Central Office. As represented, President Ramos then issued a Memorandum to the DBM Secretary dated 10 December 1997, directing the latter to increase the number of Plantilla positions in the CHR both Central and Regional Offices to implement the Philippine Decade Plan on Human Rights Education, the Philippine Human Rights Plan and Barangay Rights Actions Center in accordance with existing laws . (Emphasis in the original) Pursuant to Section 78 of the General Provisions of the General Appropriations Act (GAA) FY 1998, no organizational unit or changes in key positions shall be authorized unless provided by law or directed by the President, thus, the creation of a Finance Management Office and a Public Affairs Office cannot be given favorable recommendation. Moreover, as provided under Section 2 of RA No. 6758, otherwise known as the Compensation Standardization Law, the Department of Budget and Management is directed to establish and administer a unified compensation and position classification system in the government. The Supreme Court ruled in the case of Victorina Cruz vs. Court of Appeals, G.R. No. 119155, dated January 30, 1996, that this Department has the sole power and discretion to administer the compensation and position classification system of the National Government. Being a member of the fiscal autonomy group does not vest the agency with the authority to reclassify, upgrade, and create positions without approval of the DBM. While the members of the Group are authorized to formulate and implement the organizational structures of their respective offices and determine the compensation of their personnel, such authority is not absolute and must be exercised within the parameters of the Unified Position Classification and Compensation System established under RA 6758 more popularly known as the Compensation Standardization Law. We therefore reiterate our previous stand on the matter. (Emphasis supplied) In light of the DBMs disapproval of the proposed personnel modification scheme, the CSCNational Capital Region Office, through a memorandum dated 29 March 1999 recommended to the CSC-Central Office that the subject appointments be rejected owing to the DBMs disapproval of the plantilla reclassification. Meanwhile, the officers of petitioner Commission on Human Rights Employees Association [CHREA], in representation of the rank and file employees of the CHR, requested the CSC-Central office to affirm the recommendation of the CSC-Regional Office. CHREA stood its ground in saying that the DBM is the only agency with appropriate authority mandated by law to evaluate and approve matters of reclassification and upgrading, as well as creation of positions. The CSC-Central Office denied CHREAs request in a Resolution dated 16 December 1999, and reversed the recommendation of the CSC-Regional Office that the upgrading scheme be censured. The decretal portion of which reads: WHEREFORE, the request of Ronnie N. Rosero, Hubert V. Ruiz, Flordeliza A. Briones, George Q. Dumlao [and], Corazon A. Santos-Tiu, is hereby denied. CHREA filed a motion for reconsideration, but the CSC-Central Office denied the same on 09 June 2000.
Given the cacophony of judgments between the DBM and the CSC, petitioner CHREA elevated the matter to the Court of Appeals. The Court of Appeals affirmed the pronouncement of the CSCCentral Office and upheld the validity of the upgrading, retitling, and reclassification scheme in the CHR on the justification that such action is within the ambit of CHRs fiscal autonomy. The fallo of the Court of Appeals decision provides: IN VIEW OF ALL THE FOREGOING, the instant petition is ordered DISMISSED and the questioned Civil Service Commission Resolution No. 99-2800 dated December 16, 1999 as well as No. 001354 dated June 9, 2000, are hereby AFFIRMED. No cost.
Unfazed, the petitioner elevated its case to this Court and successfully obtained the favorable action in its Decision dated 25 November 2004. In its Motion for Reconsideration of the said [6] for resolution, namely: Decision, the respondent defined the assignment of errors
I. WITH ALL DUE RESPECT, THE SECOND DIVISION OF THE HONORABLE SUPREME COURT GRAVELY AND SERIOUSLY ERRED WHEN IT RULED THAT THERE IS NO LEGAL BASIS TO SUPPORT THE CONTENTION THAT THE CHR ENJOYS FISCAL AUTONOMY. II. WITH ALL DUE RESPECT, THE SECOND DIVISION OF THE HONORABLE SUPREME COURT ERRED IN STATING THAT THE SPECIAL PROVISION OF THE REP. ACT. (SIC) NO. 8522 DID NOT SPECIFICALLY MENTION CHR AS AMONG THOSE OFFICES TO WHICH THE SPECIAL PROVISION TO FORMULATE AND IMPLEMENT ORGANIZATIONAL STRUCTURES APPLY, BUT MERELY STATES ITS COVERAGE TO INCLUDE CONSTITUTIONAL COMMISSIONS AND OFFICES ENJOYING FISCAL AUTONOMY; III. WITH ALL DUE RESPECT, THE SECOND DIVISION OF THE HONORABLE SUPREME COURT ERRED WHEN IT RULED THAT THE CHR ALTHOUGH ADMITTEDLY A CONSTITUTIONAL CREATION IS NONETHELESS NOT INCLUDED IN THE GENUS OF THE OFFICES ACCORDED FISCAL AUTONOMY BY CONSTITUTIONAL OR LEGISLATIVE FIAT. IV. WITH ALL DUE RESPECT, THE SECOND DIVISION OF THE HONORABLE SUPREME COURT ERRED IN DECIDING TO REINSTATE THE RULING DATED 29 MARCH 1999 OF THE CIVIL SERVICE COMMISSION NATIONAL CAPITAL REGION; V. WITH ALL DUE RESPECT, THE SECOND DIVISION OF THE HONORABLE SUPREME COURT ERRED IN DECIDING TO DISALLOW THE COMMISSION ON HUMAN RIGHTS RESOLUTION NO. A98-047 DATED SEPTEMBER 04, 1998, RESOLUTION NO. A98-055 DATED 19 OCTOBER 1998 AND RESOLUTION NO. A98-062 DATED 17 NOVEMBER 1998 WITHOUT THE APPROVAL OF THE DEPARTMENT OF BUDGET AND MANAGEMENT.
Although this Court may have been persuaded to take a second look at this case and partly modify the assailed Decision, such modification shall not materially affect the dispositive portion
thereof. As already settled in the assailed Decision of this Court, the creation of respondent may be constitutionally mandated, but it is not, in the strict sense, a constitutional commission. Article IX of the 1987 Constitution, plainly entitled Constitutional Commissions, identifies only the Civil Service Commission, the Commission on Elections, and the Commission on Audit. The mandate for the creation of the respondent is found in Section 17 of Article XIII of the 1987 Constitution on Human Rights, which reads that
Sec. 17. (1) There is hereby created an independent office called the Commission on Human Rights.
Thus, the respondent cannot invoke provisions under Article IX of the 1987 Constitution on constitutional commissions for its benefit. It must be able to present constitutional and/or statutory basis particularly pertaining to it to support its claim of fiscal autonomy. The 1987 Constitution expressly and unambiguously grants fiscal autonomy only to the Judiciary, the constitutional commissions, and the Office of the Ombudsman. The 1987 Constitution recognizes the fiscal autonomy of the Judiciary in Article VIII, Section 3, reproduced below
Sec. 3. The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be reduced by the legislature below the amount appropriated for the previous year and, after approval, shall be automatically and regularly released.
Constitutional commissions are granted fiscal autonomy by the 1987 Constitution in Article IX, Part A, Section 5, a provision applied in common to all constitutional commissions, to wit
Sec. 5. The Commission shall enjoy fiscal autonomy. Their approved annual appropriations shall be automatically and regularly released.
The Office of the Ombudsman enjoys fiscal autonomy by virtue of Article XI, Section 14, of the 1987 Constitution, which provides that
Sec. 14. The Office of the Ombudsman shall enjoy fiscal autonomy. Its approved annual appropriations shall be automatically and regularly released.
Each of the afore-quoted provisions consists of two sentences stating that: (1) The government entity shall enjoy fiscal autonomy; and (2) its approved annual appropriation shall be automatically and regularly released. The respondent anchors its claim to fiscal autonomy on the fourth paragraph of Article XIII, Section 17, according to which
Sec. 17. x x x xxxx (4) The approved annual appropriations of the Commission shall be automatically and regularly released.
As compared to the previously quoted Article VIII, Section 3; Article IX, Part A, Section 5; and Article XI, Section 14 of the 1987 Constitution on the Judiciary, the constitutional commissions, and the Office of the Ombudsman, respectively, Article XIII, Section 17(4) on the Commission of Human Rights (CHR) evidently does not contain the first sentence on the express grant of fiscal autonomy, and reproduces only the second sentence on the automatic and regular release of its approved annual appropriations. Question now arises as to the significance of such a difference in the way the said provisions are worded. To settle this ambiguity, a perusal of the records of the Constitutional Commission (ConCom) is enlightening. During the drafting of Article XIII, Section 17(4), of the 1987 Constitution, the ConCom [7] members had the following discussion
MR. BENGZON. I have another paragraph, Madam President. This could be a separate section or another paragraph depending on what the committee desires and what the Committee on Style would wish: THE COMMISSION SHALL ENJOY FISCAL AUTONOMY. THE APPROVED ANNUAL APPROPRIATIONS OF THE COMMISSION SHALL BE AUTOMATICALLY AND REGULARLY RELEASED. It will align this Human Rights Commission with other commissions that we have created in the Constitution in order to further insure the independence of the Human Rights Commission. MR. DAVIDE. Madam President. THE PRESIDENT. Commissioner Davide is recognized. MR. DAVIDE. I introduced that particular amendment yesterday, but there was a proposed modification presented by Commissioner Maambong to delete the first sentence. I am in favor of the modification presented earlier. So, may I propose that the particular amendment should not carry the
first sentence, only the second sentence which reads: THE APPROVED ANNUAL APPROPRIATIONS OF THE COMMISSION SHALL BE AUTOMATICALLY AND REGULARLY RELEASED. MR. BENGZON. Why do we want to delete the sentence which says THE COMMISSION SHALL ENJOY FISCAL AUTONOMY? MR. DAVIDE. That would be a surplusage because the autonomy actually intended is the automatic release of these appropriations. MR. BENGZON. If that is the case, then maybe we should also delete such sentence in the other articles that we have approved. I will just leave it up to the Committee on Style, as long as it is in the record that that is the sense of the Commission, Madam President. THE PRESIDENT. What does the committee say on this point? MR. SARMIENTO. Accepted, Madam President. We leave it to the Committee on Style, so long as the intent is there. MR. BENGZON. In other words, what we are really saying is that if the Committee on Style feels that it would be more elegant and it is a surplusage to include the first sentence, then so be it as long as it is recorded in the Journal that it is the sense of the Commission that the Human Rights Commission will enjoy fiscal autonomy. MR. GUINGONA. Madam President. MR. MONSOD. Madam President. THE PRESIDENT. Commissioner Guingona is recognized. MR. GUINGONA. May I respectfully invite the attention of the honorable Commissioners that there are two committees that are tasked with the same work and, therefore, reference can be made not only to the Committee on Style but also to the Sponsorship Committee. Thank you, Madam President. MR. MONSOD. Madam President. THE PRESIDENT. Commissioner Monsod is recognized. MR. MONSOD. Maybe we should just say that the minimum condition that the committee agrees to is: THE APPROVED ANNUAL APPROPRIATIONS OF THE COMMISSION SHALL BE AUTOMATICALLY AND REGULARLY RELEASED. That is a minimum condition and we just allow the committees to add the first sentence if they wish. But with the second sentence, the sense is already there. MR. BENGZON. No problem, Madam President. THE PRESIDENT. This was taken up yesterday. MR. BENGZON. But it was deferred, I understand, Madam President. So if we approve this now, then it will be firmly included. THE PRESIDENT. So, will the Commissioner please read it now as it is?
MR. BENGZON. I will read the amendment as accepted. THE APPROVED ANNUAL APPROPRIATIONS OF THE COMMISSION SHALL BE AUTOMATICALLY AND REGULARLY RELEASED. THE PRESIDENT. Is there any objection to this proposed amendment which has been accepted by the committee? MR. PADILLA. Madam President. THE PRESIDENT. Commissioner Padilla is recognized. MR. PADILLA. The wording reminds me of the provisions under the judiciary and the constitutional commissions. Is the intention to elevate the position of this proposed commission which is only investigative and recommendatory to the high dignity of a constitutional commission, as well as the independence of the judiciary, by making a positive statement in the Constitution that its appropriation shall be released automatically and so forth? It seems that we are complicating and also reiterating several provisions that would make our Constitution not only too long but too complicated. I wonder if that is the purpose because even other bodies with semi-judicial functions do not enjoy such kind of constitutional guarantee. It is just an inquiry. MR. BENGZON. It is not so much the fact that we want to elevate this into a constitutional commission as it is more of an insurance that the independence of the Human Rights Commission, even though it is not considered as a constitutional commission as contemplated and as compared to the Civil Service Commission, the COMELEC and COA, is maintained. And this is as elegant as the other sentences. So, we submit the same to the body. MR. SARMIENTO. The proposed amendment has been accepted by the committee, but we have this objection from Commissioner Padilla. So, may we throw the issue to the body? MR. GUINGONA. Madam President, just for clarification. Does the amendment of the honorable Commissioner Bengzon refer only to the release? I was thinking that although I am very, very strongly in favor of this commission and would give it one of the top priorities, there are other top priorities that we may want to address ourselves to. For example, in the Committee on Human Resources, we would like to give top priority to education; therefore, if this does not refer only to an automatic and regular release but would refer to the matter of priorities in the preparation of the budget, then I am afraid that we might already be curtailing too much the discretion on the part of both the legislature and the executive to determine the priorities that should be given at a given time. MR. BENGZON. Madam President, the sentence means what it says and it is clear. THE PRESIDENT. Will the Commissioner please read. MR. BENGZON. It only refers to the release which should be automatic and regular. THE PRESIDENT. Please state it again so that we will be clarified before we take a vote. MR. GUINGONA. Thank you, Madam President. MR. BENGZON. It will read: THE APPROVED ANNUAL APPROPRIATIONS OF THE COMMISSION SHALL BE AUTOMATICALLY AND REGULARLY RELEASED. VOTING
THE PRESIDENT. As many as are in favor of this particular section, please raise their hand. ( Several Members raised their hand.) As many as are against, please raise their hand. ( Few Members raised their hand.) As many as are abstaining, please raise their hand. ( Two Members raised their hand.) The results show 26 votes in favor, 4 against and 2 abstentions; the amendment is approved. (Emphases supplied.)
The respondent relies on the statement of then Constitutional Commissioner Hilario G. Davide, Jr. that the first sentence on the express grant of fiscal autonomy to the respondent was deleted from Article XIII, Section 17(4) of the 1987 Constitution because it was a surplusage. Respondent posits that the second sentence, directing the automatic and regular release of its approved annual appropriations, has the same essence as the express grant of fiscal autonomy, thus rendering the first sentence redundant and unnecessary. This Court, however, believes otherwise. The statement of then Constitutional Commissioner Davide should be read in full. Referring to the deletion of the first sentence on the express grant of fiscal autonomy, he explained that the first sentence would be a surplusage because the autonomy [8] actually intended is the automatic release of these appropriations. (Emphasis supplied.) Even in the latter discussion between Constitutional Commissioners Jose F.S. Bengzon, Jr. and Serafin V.C. Guingona, wherein Constitutional Commissioner Guingona asked for clarification whether respondent shall also be extended priorities in the preparation of the national budget, Constitutional Commissioner Bengzon replied that x x x the sentence means what it says and it is [10] [9] and that [i]t only refers to the release which should be automatic and regular. clear, Therefore, after reviewing the deliberations of the ConCom on Article XIII, Section 17(4), of the 1987 Constitution, in its entirety, not just bits and pieces thereof, this Court is convinced that the ConCom had intended to grant to the respondent the privilege of having its approved annual appropriations automatically and regularly released, but nothing more. While it may be conceded that the automatic and regular release of approved annual appropriations is an aspect of fiscal autonomy, it is just one of many others. This Court has already defined the scope and extent of fiscal autonomy in the case of
Bengzon v. Drilon,
[11]
as follows
As envisioned in the Constitution, the fiscal autonomy enjoyed by the Judiciary, the Civil Service Commission, the Commission on Audit, the Commission on Elections, and the Office of the Ombudsman contemplates a guarantee of full flexibility to allocate and utilize their resources with the wisdom and dispatch that their needs require. It recognizes the power and authority to levy, assess and collect fees, fix rates of compensation not exceeding the highest rates authorized by law for compensation and pay plans of the government and allocate and disburse such sums as may be provided by law or prescribed by them in the course of the discharge of their functions. Fiscal autonomy means freedom from outside control. x x x
The foregoing excerpt sufficiently elucidates that the grant of fiscal autonomy is more extensive than the mere automatic and regular release of approved annual appropriations of the government entity. It is also worth stressing herein that in Bengzon v. Drilon, this Court, ruling En Banc , only recognized the fiscal autonomy of the Judiciary; the constitutional commissions, namely, the Civil Service Commission, the Commission on Audit, and the Commission on Elections; and the Office of the Ombudsman. Respondent is conspicuously left out of the enumeration. [12] on the meaning of the fiscal Moreover, the ConCom had the following deliberations autonomy extended to the constitutional commissions in what is to become later Article IX, Part A, Section 5, of the 1987 Constitution
THE PRESIDING OFFICER (Mr. Treas). Commissioner de Castro is recognized. MR. DE CASTRO: Thank you. This morning, I asked the proponent of this resolution what is included in the term fiscal autonomy. The answer I got is that it is for the automatic release of the budget. I propose that the sentence The Commissions shall enjoy fiscal autonomy be deleted but the second sentence shall remain. The reason is that it is already redundant. Fiscal autonomy means the automatic release of appropriations. MR. MONSOD. Mr. Presiding Officer, may we answer the honorable Commissioner. I think the answer of the Chairman of our Committee this morning was that it would involve the automatic and regular release of the funds once approved. In addition, we are suggesting that fiscal autonomy include the nonimposition of any other procedures, for example, a preaudit system in the commissions or bodies that enjoy fiscal autonomy. So, actually, the definition of fiscal autonomy would be a bit broader than just the automatic release. MR. DE CASTRO. Does the Commissioner mean that these commissions will not be subjected to preaudit? MR. MONSOD. Our proposal actually in the provisions on the Commission on Audit is that they be subjected to comprehensive postaudit procedures and where their internal control system is inadequate, in the opinion of the Commission on Audit, then the commission may also take such
measures as are necessary to correct the inadequacies which might include special preaudit systems. THE PRESIDING OFFICER (Mr. Treas). The Chair understands, therefore, that the proposed amendment of Commissioner de Castro is not acceptable to the Committee? MR. DE CASTRO. Not yet, Mr. Presiding Officer, because we are still on the answer to me this morning, which stated the record will bear me out that fiscal autonomy means the automatic release of appropriations. It means the automatic release and nothing more. We were in the same Committee and when we asked the COA about this, they insisted that there must be preaudit. If fiscal autonomy means that there will be no preaudit, I do not know what will happen to this. THE PRESIDING OFFICER (Mr. Treas). So, what is the stand of the Committee insofar as the proposed amendment of Commissioner de Castro is concerned? MR. DE CASTRO. May I just say one sentence, Mr. Presiding Officer? If the Committees stand is that fiscal autonomy means the automatic release of the appropriations, then I say that the first sentence The Commissions shall enjoy fiscal autonomy -- should be deleted because it is a repetition of the second sentence. Thank you. MR. MONSOD . Mr. Presiding Officer, the position of the Committee is that fiscal autonomy may include other things than just the automatic and regular release of the funds. THE PRESIDING OFFICER (Mr. Treas). With that explanation, what is the pleasure of Commissioner de Castro? Does he insist on his amendment? MR. DE CASTRO. Is the Chairman changing his answer from this mornings question? If he does, I will ask some more questions about fiscal autonomy. MR. MONSOD. Mr. Presiding Officer, I think at the beginning of this exchange, we already told the honorable Commissioner that the Chairman of the Committee had not meant to make it an allinclusive definition. And if he was misled into thinking of another meaning, we apologize for it. But our position is that fiscal autonomy would include other rights than just merely automatic and regular disbursement. MR. DE CASTRO. Does it include exception from preaudit? MR. MONSOD. Yes, it would include the imposition of certain preaudit requirements for release, because if the preaudit requirements are inserted into the process of release, it would defeat the objective of automatic and regular release.
Based on the preceding exchange, it can be derived that the first sentence of Article IX, Part A, Section 5, of the 1987 Constitution, expressly granting fiscal autonomy to constitutional commissions, does not have the same meaning as the second sentence, directing the automatic and regular release of their approved annual appropriations, hence, the resistance of Constitutional Commissioner Christian S. Monsod to the suggested amendment of Constitutional Commissioner Crispino M. De Castro to just delete the first sentence.
In addition, the Constitutional Fiscal Autonomy Group (CFAG), to which respondent avers membership, defined the term fiscal autonomy in its Joint Resolution No. 49, dated 24 July 1998, as follows
IV. Definition of Terms: 1. Fiscal Autonomy shall mean independence or freedom regarding financial matters from outside control and is characterized by self direction or self determination. It does not mean mere automatic and regular release of approved appropriations to agencies vested with such power in a very real sense, the fiscal autonomy contemplated in the constitution is enjoyed even before and, with more reasons, after the release of the appropriations. Fiscal autonomy encompasses, among others, budget preparation and implementation, flexibility in fund utilization of approved appropriations, use of savings and disposition of receipts. x x x (Emphasis supplied.)
While the assailed Decision and the present Resolution may render the status of respondents membership in CFAG uncertain, the then Chairperson of respondent, Aurora P. Navarrete-Recina, duly signed CFAG Joint Resolution No. 49, and respondent should be held bound by the definition of fiscal autonomy therein. CFAG Joint Resolution No. 49 categorically declares that fiscal autonomy means more than just the automatic and regular release of approved appropriation, and also encompasses, among other things: (1) budget preparation and implementation; (2) flexibility in fund utilization of approved appropriations; and (3) use of savings and disposition of receipts. Having agreed to such a definition of fiscal autonomy, respondent has done a complete turn-about herein and is now contradicting itself by arguing that the automatic and regular release of its approved annual appropriations is already tantamount to fiscal autonomy. Consequently, this Court concludes that the 1987 Constitution extends to respondent a certain degree of fiscal autonomy through the privilege of having its approved annual appropriations released automatically and regularly. However, it withholds from respondent fiscal autonomy, in its broad or extensive sense, as granted to the Judiciary, constitutional commissions, and the Office of the Ombudsman. Operative herein is the rule of statutory construction, expressio unius est exclusio alterius , wherein the express mention of one person, thing, or consequence implies the exclusion of [13] The rule proceeds from the premise that the legislature (or in this case, the all others. ConCom) would not have made specific enumerations in a statute (or the Constitution) had the [14] intention not been to restrict its meaning and to confine its terms to those expressly mentioned. The provisions of Executive Order No. 292, otherwise known as the Administrative Code of
1987, on the fiscal autonomy of constitutional commissions, the Office of the Ombudsman, and the respondent, merely follow the phraseology used in the corresponding provisions of the 1987 Constitution, thus
Book II, Chapter 5, Section 26. Fiscal Autonomy. The Constitutional Commissions shall enjoy fiscal autonomy. The approved annual appropriations shall be automatically and regularly released. Book V, Title II, Subtitle B, Section 4. Fiscal Autonomy. The Office of the Ombudsman shall enjoy fiscal autonomy. Its approved annual appropriations shall be automatically and regularly released. Book V, Title II, Subtitle A, Section 6. Annual Appropriations. The approved annual appropriations of the Commission on Human Rights shall be automatically and regularly released.
While the Administrative Code of 1987 has no reference to the fiscal autonomy of the Judiciary, it does have provisions on the fiscal autonomy of the constitutional commissions and the Office of the Ombudsman. It is very interesting to note that while Book II, Chapter 5, Section 26 (on constitutional commissions) and Book V, Title 2, Subtitle B, Section 4 (on the Office of the Ombudsman) of the Code are entitled Fiscal Autonomy, Book V, Title 2, Subtitle A, Section 6 (on respondent) bears the title Annual Appropriations. Further, the provisions on the constitutional commissions and the Office of the Ombudsman in the Administrative Code of 1987, just like in the 1987 Constitution, are composed of two sentences: (1) The government entity shall enjoy fiscal autonomy; and (2) Its approved annual appropriation shall be automatically and regularly released. The provision on respondent in the same Code is limited only to the second sentence. Respondent asserts that it is granted fiscal autonomy by Book VI, Chapter 1, Section 1, paragraph 9, of the Administrative Code of 1987, which reads
SEC. 1. Constitutional Policies on the Budget. xxxx (9) Fiscal autonomy shall be enjoyed by the Judiciary, Constitutional Commissions, Office of the Ombudsman, Local Government and Commission on Human Rights.
As its title suggests, the afore-cited provision is supposed to merely re-state the policies on budget as declared by the 1987 Constitution and, therefore, cannot grant or extend to the respondent a privilege not found in the 1987 Constitution. Book VI of the Administrative Code of 1987, under which the said provision is found, pertains to National Government Budgeting. Respondent may
have been included in the enumeration of fiscally autonomous government entities because it does enjoy an aspect of fiscal autonomy, that of the automatic and regular release of its approved annual appropriations from the national budget. The general declaration of fiscal autonomy of the respondent in Section 1, paragraph 9, of Book V of the Administrative Code of 1987 on National Government Budgeting, must be qualified and limited by Section 6 of Book V, Title II, Subtitle A of the same Code specifically pertaining to respondent. It should be borne in mind that the general rule is that a word, phrase or provision should not be construed in isolation, but must be interpreted [15] in relation to other provisions of the law. To reiterate, under the Constitution, as well as the Administrative Code of 1987, respondent enjoys fiscal autonomy only to the extent that its approved annual appropriations shall be automatically and regularly released, but nothing more. On the main issue of whether or not the approval by the Department of Budget and Management (DBM) is a condition precedent to the enactment of an upgrading, reclassification, creation and collapsing of plantilla positions in the CHR, this Court staunchly holds that as prescinding from the legal and jurisprudential yardsticks discussed in length in the assailed Decision, the imprimatur of the DBM must first be sought prior to implementation of any reclassification or upgrading of positions in government. Regardless of whether or not respondent enjoys fiscal autonomy, this Court shares the stance of the DBM that the grant of fiscal autonomy notwithstanding, all government offices must, all the same, kowtow to the Salary Standardization Law. This Court is of the same mind with the [16] on its standpoint, thus DBM
Being a member of the fiscal autonomy group does not vest the agency with the authority to reclassify, upgrade, and create positions without approval of the DBM. While the members of the Group are authorized to formulate and implement the organizational structures of their respective offices and determine the compensation of their personnel, such authority is not absolute and must be exercised within the parameters of the Unified Position Classification and Compensation System established under RA 6758 more popularly known as the Compensation Standardization Law. x x x (Emphasis supplied).
To drive home this point, in the special provision covering the Judiciary as quoted above, the Judiciary was not vested with the power to formulate and implement organizational structures beyond the salary rates, allowances and other benefits under the compensation standardization laws. Stated differently, although the Judiciary is allowed to reorganize, any such reorganization
must, nevertheless, be in strict adherence to the Salary Standardization Law. Ergo, any reorganization therein must be with the conformity of the DBM inasmuch as it is the government arm tasked by law to implement the Salary Standardization Law. In Republic Act No. 9227, or An Act Granting Additional Compensation in the Form of Special Allowances for Justices, Judges and All Other Positions in the Judiciary with the Equivalent Rank of Justices of the Court of Appeals and Judges of the Regional Trial Court, and for Other Purposes, the grant of Special Allowances to members of the Judiciary did not operate to exempt members thereof from the Salary Standardization Law. In Section 7 of Republic Act No. 9227, the Supreme Court and the DBM were specifically tasked to issue the necessary guidelines for the proper implementation of this Act in respect to funds coming from the National [17] Resultantly, the Supreme Court and the DBM issued Joint Circular No. 2004-1 on 13 Treasury. January 2004 which provided guidelines on the funding source for the grant of this special allowance. Thus, although Administrative Order No. 137, issued by President Gloria MacapagalArroyo on 27 December 2005, extended to the Chairman and Commissioners or Members of the CHR the same benefits and privileges enjoyed by members of constitutional commissions and the Judiciary in the matter of rationalized rate of allowances and liberalized computation of retirement benefits and accumulated leave credits, it still does not exempt respondent from the Salary Standardization Law. If the Judiciary, a co-equal branch of government, which was expressly granted by the Constitution with fiscal autonomy, is required to conform to the Salary Standardization Law and is subject to the scrutiny of the DBM, sagaciously, the respondent cannot be deemed to enjoy a better position than the Judiciary. The respondent must, likewise, toe the line. This Court shall no longer belabor the point it has already delved upon in length in its Decision that Congress has delegated to the DBM the power to administer the Salary Standardization Law, which power is part of the system of checks and balances or system of restraints in the Philippine government. This Court, thus, reiterates the point that the DBMs exercise of such authority is not in itself an arrogation inasmuch as it is pursuant to the 1987 Constitution, the paramount law of the land; the Salary Standardization Law; and the Administrative Code of 1987. In line with its role to breathe life into the policy behind the Salary Standardization Law of
providing equal pay for substantially equal work and to base differences in pay upon substantive differences in duties and responsibilities, and qualification requirements of the positions, the DBM, in the case under review, made a determination, after a thorough evaluation, that the reclassification and upgrading scheme proposed by the respondent lacks legal rationalization. The DBM expounded that Section 78 of the General Provisions of the General Appropriations Act (GAA), FY 1998, which the respondent heavily relies upon to justify its reclassification scheme, explicitly provides that no organizational unit or changes in key positions shall be authorized unless provided by law or directed by the President. Here, the DBM discerned that there is no law authorizing the creation of a Finance Management Office and a Public Affairs Office in the CHR. Anent respondents proposal to upgrade twelve (12) positions of Attorney VI, SG-28 to Director IV, SG-28, and three (3) positions of Director III, SG-27 to Director IV, SG-28, in its Central Office, the DBM denied the same as this would change the context from support to substantive without actual change in functions. This view of the DBM, as the laws designated body to implement and administer a unified compensation system, is beyond cavil. The interpretation of an administrative government agency, which is tasked to implement a statute, is accorded great respect and ordinarily controls the [18] the Court echoed construction of the courts. In Energy Regulatory Board v. Court of Appeals , the basic rule that the courts will not interfere in matters which are addressed to the sound discretion of government agencies entrusted with the regulation of activities coming under the special technical knowledge and training of such agencies. To be sure, considering his expertise on matters affecting the nations coffers, the Secretary of the DBM, as the Presidents alter ego , knows from where he speaks inasmuch as he has the front seat view of the adverse effects of an unwarranted upgrading or creation of positions in the CHR in particular and in the entire government in general. As the final thrust, given this Courts previous pronouncement in the present Resolution that the fiscal autonomy granted to the respondent by the 1987 Constitution and the Administrative Code of 1987 shall be limited only to the automatic and regular release of its approved annual appropriations, respondent is precluded from invoking the Special Provisions Applicable to All Constitutional Offices Enjoying Fiscal Autonomy in the 1998 GAA. The said Special Provisions read
Special Provisions Applicable to All Constitutional Offices Enjoying Fiscal Autonomy 1. Organization Structure. Any provision of law to the contrary notwithstanding and within the limits of their respective appropriations as authorized in this Act, the Constitutional Commissions and Offices enjoying fiscal autonomy are authorized to formulate and implement the organizational structures of their respective offices, to fix and determine the salaries, allowances, and other benefits of their personnel, and whenever public interest so requires, make adjustments in the personal services itemization including, but not limited to, the transfer of item or creation of new positions in their respective offices: PROVIDED, That the officers and employees whose positions are affected by such reorganization or adjustments shall be granted retirement gratuities and separation pay in accordance with existing laws, which shall be payable from any unexpended balance of, or savings in the appropriations of their respective offices: PROVIDED, FURTHER, That the implementation hereof shall be in accordance with salary rates, allowances and other benefits authorized under compensation standardization laws. 2. Use of Savings. The Constitutional Commissions and Offices enjoying fiscal autonomy are hereby authorized to use savings in their respective appropriations for; (a) printing and/or publication of decisions, resolutions, and training information materials; (b) repair, maintenance and improvement of central and regional offices, facilities and equipment; (c) purchase of books, journals, periodicals and equipment; (d) necessary expenses for the employment or temporary, contractual and casual employees; (e) payment of extraordinary and miscellaneous expenses, commutable representation and transportation allowances, and fringe benefits for their officials and employees as may be authorized by law; and (f) other official purposes, subject to accounting and auditing rules and regulations.
It is unequivocal that the afore-quoted Special Provisions of the 1998 GAA refer to the broad and extensive concept of fiscal autonomy. They already go beyond ensuring the automatic and regular release of the approved annual appropriations, but already enumerate the ways by which the named government entities can use their appropriations to effect changes in their organizational structure and their savings for certain official purposes. Even assuming arguendo that the said Special Provisions are applicable to respondent, it should be noted that the last sentence in paragraph 1 qualifies the power of a fiscally autonomous government entity to formulate and implement changes in its organizational structure so that, x x x the implementation hereof shall be in accordance with salary rates, allowances and other benefits authorized under compensation standardization laws. And, as exhaustively expounded in the assailed Decision and the herein Resolution, only the DBM has the authority and the technical expertise to determine compliance by respondent to the provisions of the Salary Standardization Law. WHEREFORE, the Motion for Reconsideration is PARTIALLY GRANTED . The assailed Decision of this Court dated 25 November 2004 is hereby MODIFIED, declaring the respondent CHR as a constitutional body enjoying limited fiscal autonomy, in the sense that it is entitled to the automatic and regular release of its approved annual appropriations; nonetheless, it is still required to conform to the Salary Standardization Law. Accordingly, its entire reclassification scheme remains subject to the approval of the DBM. No pronouncement as to costs.
SO ORDERED . WE CONCUR: REYNATO S. PUNO Associate Justice Chairman ROMEO J. CALLEJO, SR. Associate Justice MINITA V. CHICO-NAZARIO Associate Justice
MA. ALICIA AUSTRIA-MARTINEZ Associate Justice DANTE O. TINGA Associate Justice ATTESTATION
I attest that the conclusions in the above Resolution were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. REYNATO S. PUNO Associate Justice Chairman, Second Division

CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairmans Attestation, it is hereby certified that the conclusions in the above Resolution were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. ARTEMIO V. PANGANIBAN Chief Justice
[1] [2] [3] [4] [5] [6]
Penned by Associate Justice Minita V. Chico-Nazario with Acting Chief Justice Reynato S. Puno, Associate Justices Ma. Alicia Austria-Martinez, Romeo J. Callejo, Sr., and Dante O. Tinga, concurring; Rollo , pp. 198-226. Id. at 224-225. Id. at 227-250. Id. at 262-265. Id. at 200-208. Id. at 228-229.
[7]
[8] [9]
Record of Constitutional Commission, Vol. IV, pp. 10-12 (28 August 1986).
Id. at 10.
Id. at 11. [10] Id. [11] G.R. No. 103524, 15 April 1992, 208 SCRA 133, 150. [12] RECORD OF CONSTITUTIONAL COMMISSION, VOL. I, pp. 559-560 (15 July 1986). [13] Ruben E. Agpalo, STATUTORY CONSTRUCTION, p. 222 (2003). See Centeno v. Villalon-Pornillos , G.R. No. 113092, 1 September 1994, 236 SCRA 197. [14] Commissioner of Customs v. Court of Tax Appeals, G.R. No. 48886-88, 21 July 1993, 224 SCRA 665, 670. [15] Supra note 12 at 191. [16] Letter, dated 20 January 1999, of DBM Secretary Benjamin E. Diokno addressed to CHR Chairperson Aurora P. Navarette-Recia; Rollo , p. 63. [17] SEC. 7. Issuance of Implementing Guidelines . The Supreme Court and the Department of Budget and Management shall issue the necessary guidelines for the proper implementation of this Act in respect to funds coming from the National Treasury within ninety (90) days from approval hereof. [18] G.R. No. 113079, 20 April 2001, 357 SCRA 30, 40; citing Nestl Philippines, Incorporated v. Court of Appeals, G.R. No. 86738, 13 November 1991, 203 SCRA 504, 510-511.
EN BANC
[G.R. No. 157509. January 18, 2005]
AUTOMOTIVE INDUSTRY WORKERS ALLIANCE (AIWA) and its Affiliated Unions: Mitsubishi Motors Workers Phils. Union; Mitsubishi Motors Phils. Supervisors Union, Nissan Motors Phils., Inc. Workers Union, Toyota Motors Phils. Workers Union, DURASTEEL WORKERS UNION, FILSHUTTERS EMPLOYEES & WORKERS UNION, NATIONAL LABOR UNION, PEPSI-COLA SUPERVISORS AND EMPLOYEES UNION, PSBA FACULTY ASSOCIATION, PLDT SECURITY PERSONNEL UNION, PUREFOODS UNIFIED LABOR ORGANIZATION, SAMAHANG MANGGAGAWA NG BICUTAN CONTAINERS CORP., SAMAHANG MANGGAGAWA NG CINDERELLA, SAMAHANG MANGGAGAWA NG LAURAS FOOD PRODUCTS, petitioners , vs. HON. ALBERTO ROMULO, in his capacity as Executive Secretary, and HON. PATRICIA STO. TOMAS, in her capacity as Secretary of Labor and Employment, respondents . DECISION
CHICO-NAZARIO, J .:
Petitioners, composed of ten (10) labor unions, call upon this Court to exercise its power of judicial review to declare as unconstitutional an executive order assailed to be in derogation of the constitutional doctrine of separation of powers. In an original action for certiorari , petitioners invoke their status as labor unions and as taxpayers whose rights and interests are allegedly violated and prejudiced by Executive Order No. 185 dated 10 March 2003 whereby administrative supervision over the National Labor Relations Commission (NLRC), its regional branches and all its personnel including the executive labor arbiters and labor arbiters was transferred from [1] the NLRC Chairperson to the Secretary of Labor and Employment. In support of their position, petitioners argue that the NLRC -- created by Presidential Decree No. 442, otherwise known as the Labor Code, during Martial Law was an integral part of the Department (then Ministry) of Labor and Employment (DOLE) under the administrative supervision of the Secretary of Justice. During the time of President Corazon C. Aquino, [2] and while she was endowed with legislative functions after EDSA I, Executive Order No. 292 was issued whereby the NLRC became an agency attached to the DOLE for policy and program coordination and for administrative supervision. On 02 March 1989, Article 213 of the Labor Code was expressly amended by Republic Act No. 6715 declaring that the NLRC was to be attached to the DOLE for program and policy coordination only while the administrative supervision over the NLRC, its regional branches and personnel, was turned over to the NLRC Chairman. The subject E.O. No. 185, in authorizing the Secretary of Labor to exercise administrative supervision over the NLRC, its regional branches and personnel, allegedly reverted to the pre-Rep. Act No. 6715 set-up, amending the latter law which only Congress can do. The respondents herein, as represented by the Office of the Solicitor General, opposed the petition on [3] [4]
procedural and substantive grounds. Procedurally, it is alleged that the petition does not pose an actual case or controversy upon which judicial review may be exercised as petitioners have not specifically cited how E.O. No. 185 has prejudiced or threatened to prejudice their rights and existence as labor unions and as taxpayers. Closely intertwined therewith, respondents further argue that petitioners have no locus standi to assail the validity of E.O. No. 185, not even in their capacity as taxpayers, considering that labor unions are exempt from paying taxes, citing Sec. 30 of the Tax Reform Act of 1997. Even assuming that their individual members are taxpayers, respondents maintain that a taxpayer suit will not prosper as E.O. No. 185 does not require additional appropriation for its implementation. As the petition can be decided without passing on the validity of the subject executive order, respondents conclude that the same should be forthwith dismissed. Even on the merits, respondents advance the view that the petition must fail as the administrative supervision granted by the Labor Code to the NLRC Chairman over the NLRC, its regional branches and personnel, does not place them beyond the Presidents broader power of control and supervision, a power conferred no less than by the Constitution in Section 17, Article VII thereof. Thus, in the exercise of the Presidents power of control and supervision, he can generally oversee the operations of the NLRC, its regional branches and personnel thru his alter ego, the Secretary of Labor, pursuant to the doctrine of qualified political agency. [5] In their Reply, petitioners affirm their locus standi contending that they are suing for and in behalf of their members estimated to be more or less fifty thousand (50,000) workers who are the real parties to be affected by the resolution of this Court. They likewise maintain that they are suing in behalf of the employees of the NLRC who have pending cases for dismissal. Thus, possessed of the necessary standing, petitioners theorize that the issue before this Court must necessarily be decided as it involves an act of the Chief Executive amending a provision of law. For clarity, E.O. No. 185 is hereby quoted: EXECUTIVE ORDER NO. 185 AUTHORIZING THE SECRETARY OF LABOR AND EMPLOYMENT TO EXERCISE ADMINISTRATIVE SUPERVISION OVER THE NATIONAL LABOR RELATIONS COMMISSION WHEREAS, Section 17, Article VII of the Constitution provides that the President shall have control of all executive departments, bureaus and offices and shall ensure that the laws be faithfully executed; WHEREAS, the National Labor Relations Commission (NLRC) which was created by virtue of Presidential Decree No. 442, otherwise known as the Labor Code of the Philippines, is an agency under the Executive Department and was originally envisaged as being an integral part of the Department (then Ministry) of Labor and Employment (DOLE) under the administrative supervision of the Secretary of Labor and Employment (Secretary of Labor); WHEREAS, upon the issuance of Executive Order No. 292, otherwise known as the Revised Administrative Code of 1987 (the Administrative Code), the NLRC, by virtue of Section 25, Chapter 6, Title VII, Book IV thereof, became an agency attached to the DOLE for policy and program coordination and administrative supervision; WHEREAS, Article 213 of the Labor Code and Section 25, Chapter 6, Title VII, Book IV of the Administrative Code were amended by Republic Act. No. 6715 approved on March 2, 1989, which provides that the NLRC shall be attached to the DOLE for program and policy coordination only and transferred administrative supervision over the NLRC, all its regional branches and personnel to the NLRC Chairman; WHEREAS, Section 16, Article III of the Constitution guarantees the right of all persons to a speedy disposition of their cases before all judicial, quasi-judicial and administrative bodies; WHEREAS, the Secretary of Labor, after evaluating the NLRCs performance record in the last five (5) years,
including the rate of disposition of pending cases before it, has informed the President that there is a need to expedite the disposition of labor cases pending before the NLRC and all its regional and sub-regional branches or provincial extension units and initiate potent measures to prevent graft and corruption therein so as to reform its systems and personnel, as well as infuse the organization with a sense of public service in consonance with the imperative of change for the greater interest of the people; WHEREAS, after consultations with the relevant sectors, the Secretary of Labor has recommended that the President, pursuant to her powers under the Constitution and existing laws, authorize the Secretary of Labor to exercise administrative supervision over the NLRC and all its regional and sub-regional branches or provincial extension units with the objective of improving the rate of disposition of pending cases and institute adequate measures for the prevention of graft and corruption within the said agency; NOW, THEREFORE, I, GLORIA MACAPAGAL ARROYO, President of the Republic of the Philippines, by virtue of the powers vested in me by the Constitution and existing laws, do hereby order: SECTION 1. Authority To Exercise Administrative Supervision. The Secretary of Labor is hereby authorized to exercise administrative supervision over the NLRC, its regional branches and all its personnel, including the Executive Labor Arbiters and Labor Arbiters, with the objective of improving the rate of disposition of cases pending before it and its regional and sub-regional branches or provincial extension units and to institute adequate measures for the prevention of graft and corruption within the said agency. For this purpose, the Secretary of Labor shall, among others:
a. Generally oversee the operations of the NLRC and its regional and sub-regional branches or provincial extension units for the purpose of ensuring that cases pending before them are decided or resolved expeditiously; b. Require the submission of reports as the Secretary of Labor may deem necessary; c. Initiate measures within the agency to prevent graft and corruption, including but not limited to, the conduct of management audits, performance evaluations and inspections to determine compliance with established policies, standards and guidelines; d. To take such action as may be necessary for the proper performance of official functions, including rectification of violations, abuses and other forms of mal-administration; and e. Investigate, on its own or upon complaint, matters involving disciplinary action against any of the NLRCs personnel, including Presidential appointees, in accordance with existing laws, rules and regulations. After completing his/her investigation, the Secretary of Labor shall submit a report to the President on the investigation conducted with a recommendation as to the penalty to be imposed or other action to be taken, including referral to the Presidential Anti-Graft Commission (PAGC), the Office of the Ombudsman or any other office, committee, commission, agency, department, instrumentality or branch of the government for appropriate action.
The authority conferred herein upon the Secretary of Labor shall not extend to the power to review, reverse, revise, or modify the decisions of the NLRC in the exercise of its quasi-judicial functions (cf. Section 38(2) (b), Chapter 7, Book IV, Administrative Code). SECTION 2. Report to the Secretary of Labor . The NLRC, through its Chairman, shall submit a report to the Secretary of Labor within thirty (30) days from issuance of this Executive Order, on the following matters:
a. Performance Report/Audit for the last five (5) years, including list of pending cases and cases disposed of within the said period by the NLRC en banc , by Division and by the Labor Arbiters in each of its regional and sub-regional branches or provincial extension units; b. Detailed Master Plan on how to liquidate its backlog of cases with clear timetables to clean up its dockets within six (6) months from the issuance hereof;
c. Complete inventory of its assets and list of personnel indicating their present positions and stations; and d. Such other matters as may be required by the Secretary of Labor.
SECTION 3. Rules and Regulations . The Secretary of Labor, in consultation with the Chairman of the NLRC, is hereby authorized to issue rules and regulations for the effective implementation of the provisions of this Executive Order. SECTION 4. Repealing Clause . All laws, executive issuances, rules and regulations or parts thereof which are inconsistent with the provisions of this Executive Order are hereby repealed, amended, or modified accordingly. SECTION 5. Effectivity. This Executive Order shall take effect immediately upon the completion of its publication in the Official Gazette or in a newspaper of general circulation in the country. City of Manila, March 10, 2003.
[6]
The constitutionality of a governmental act having been challenged, it comes as no surprise that the first line of defense is to question the standing of petitioners and the justiciability of herein case. It is hornbook doctrine that the exercise of the power of judicial review requires the concurrence of the following requisites, namely: (1) the existence of an appropriate case; (2) an interest personal and substantial by the party raising the constitutional question; (3) the plea that the function be exercised at the earliest opportunity; and (4) the necessity that the constitutional question be passed upon in order to decide the [7] case. As correctly pointed out by respondents, judicial review cannot be exercised in vacuo. The function of [8] the courts is to determine controversies between litigants and not to give advisory opinions. The power of judicial review can only be exercised in connection with a bona fide case or controversy which involves the [9] statute sought to be reviewed. Even with the presence of an actual case or controversy, the Court may refuse to exercise judicial review unless the constitutional question is brought before it by a party having the requisite standing to challenge [10] it. Legal standing or locus standi is defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being [11] challenged. For a citizen to have standing, he must establish that he has suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government; the injury is fairly traceable to [12] the challenged action; and the injury is likely to be redressed by a favorable action. Petitioners have not shown that they have sustained or are in danger of sustaining any personal injury attributable to the enactment of E.O. No. 185. As labor unions representing their members, it cannot be said that E.O. No. 185 will prejudice their rights and interests considering that the scope of the authority conferred upon the Secretary of Labor does not extend to the power to review, reverse, revise or modify the decisions [13] of the NLRC in the exercise of its quasi-judicial functions. Thus, only NLRC personnel who may find themselves the subject of the Secretary of Labors disciplinary authority, conferred by Section 1(d) of the subject executive order, may be said to have a direct and specific interest in raising the substantive issue [14] herein. Moreover, and if at all, only Congress, and not petitioners, can claim any injury from the alleged executive encroachment of the legislative function to amend, modify and/or repeal laws. Neither can standing be conferred on petitioners as taxpayers since petitioners have not established [15]
A taxpayers suit is properly [16] brought only when there is an exercise of the spending or taxing power of Congress. As correctly pointed out by respondents, E.O. No. 185 does not even require for its implementation additional appropriation. All told, if we were to follow the strict rule on locus standi, this petition should be forthwith dismissed on that score. The rule on standing, however, is a matter of procedure, hence, can be relaxed for nontraditional plaintiffs like ordinary citizens, taxpayers and legislators when the public interest so requires, such as when the matter is of transcendental importance, of overarching significance to society, or of paramount public [17] interest. The question is, does the issue posed in this petition meet the exacting standard required for this Court to take the liberal approach and recognize the standing of herein petitioners? The instant petition fails to persuade us. The subject matter of E.O. No. 185 is the grant of authority by the President to the Secretary of Labor to exercise administrative supervision over the NLRC, its regional branches and all its personnel, including the Executive Labor Arbiters and Labor Arbiters. Its impact, sans the challenge to its constitutionality, is thereby limited to the departments to which it is addressed. Taking our cue from the early case of Olsen v. Herstein [18] and Rafferty , the subject executive order can be considered as nothing more or less than a command from a superior to an inferior. It creates no relation except between the official who issued it and the officials who received it. It has for its object simply the efficient and economical administration of the affairs of the department to which it is issued in accordance with the law governing the subject matter. Administrative in its nature, the subject order does not pass beyond the limits of the departments to which it is directed, hence, it has not created any rights in third persons, not even in the fifty thousand or so union members being represented by petitioners who may or may not have pending cases before the labor arbiters or the NLRC. In fine, considering that the governmental act being questioned has a limited reach, its impact confined to corridors of the executive department, this is not one of those exceptional occasions where the Court is justified in sweeping aside a critical procedural requirement, rooted as it is in the constitutionally enshrined principle of separation of powers. As succinctly put by Mr. Justice Reynato S. Puno in his dissenting opinion [19] in the first Kilosbayan case: . . . [C]ourts are neither free to decide all kinds of cases dumped into their laps nor are they free to open their doors to all parties or entities claiming a grievance. The rationale for this constitutional requirement of locus standi is by no means trifle. It is intended to assure a vigorous adversary presentation of the case, and, perhaps more importantly to warrant the judiciarys overruling the determination of a coordinate, democratically elected organ of government. It thus goes to the very essence of representative democracies. ... A lesser but not insignificant reason for screening the standing of persons who desire to litigate constitutional issues is economic in character. Given the sparseness of our resources, the capacity of courts to render efficient judicial service to our people is severely limited. For courts to indiscriminately open their doors to all types of suits and suitors is for them to unduly overburden their dockets, and ultimately render themselves ineffective dispensers of justice. To be sure, this is an evil that clearly confronts our judiciary today. All things considered, whether or not E.O. No. 185 is indeed unconstitutional will have to await the proper party in a proper case to assail its validity. WHEREFORE, premises considered, the instant petition dated 27 March 2003 is hereby DISMISSED for lack of merit. No costs.
[20]
disbursement of public funds in contravention of law or the Constitution.
SO ORDERED. Puno, (Acting C.J.), Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, AustriaMartinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, and Garcia, JJ., concur . Davide, Jr., C.J., on leave .
[1] [2] [3] [4] [5] [6] [7] [8] [9]
Rollo, pp. 7-8. Otherwise known as the Administrative Code of 1987. Signed into law on 25 July 1987. Rollo, pp. 2-10. Id. at 11-20. Id. at 69-76. Rollo, pp. 15-18. People v. Vera , 65 Phil. 56 [1937], as cited in Dumlao v. Comelec, G.R. No. L-52245, 22 January 1980, 95 SCRA 392, 400. Allied Broadcasting Center, Inc. v. Republic , G.R. No. 91500, 18 October 1990, 190 SCRA 782. Ibid. Bernas, SJ, The 1987 Constitution of the Republic of the Philippines A Commentary, 2003 Edition, p. 939. Integrated Bar of the Philippines, G.R. No. 141284, 15 August 2000, 338 SCRA, 81, 100. Gonzales v. Narvasa, G.R. No. 140835, 14 August 2000, 337 SCRA 733, 740 citing Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Commission on Elections, G.R. No. 132922, 21 April 1998, 289 SCRA 337, 343. Executive Order No. 185, Section 1 (last paragraph). Gonzales v. Narvasa, Aug. 14, 2000, G.R. No. 140835, 14 August 2000, 337 SCRA 733, 741. Ibid. Ibid. Araneta v. Dinglasan 84 Phil. 368 (1949); Dumlao v. COMELEC, G.R. No. L-52245, 22 January 1980, 95 SCRA 392, 404; De Guia v. COMELEC, G.R. No. 104712, 06 May 1992, 208 SCRA 420,422; Tatad v. Secretary of the Department of Energy, G.R. Nos. 124360 and 127867, 05 November 1997, 281 SCRA 330, 349; Osmea v. COMELEC, G.R. Nos. 100318, 100417 and 100420, 30 July 1991, 199 SCRA 750, 757; Basco v. Pagcor, G.R. No. 91649, 14 May 1991, 197 SCRA 52, 60; Kilosbayan v. Guingona, Jr., G.R. No. 113375, 05 May 1994, 232 SCRA 110, 139; Agan, Jr. v. Philippine International Air Terminals Co., Inc., G.R. Nos. 15001, 155547 & 155661, 05 May 2003, 402 SCRA 612, 645-646; Farias, et al. v. Executive Secretary, et al., G.R. Nos. 147387 & 152161, 10 December 2003, 417 SCRA 503, 515-517. G.R. No. 11138, 15 December 1915. This was a case for mandamus filed by an exporter of cigars to compel the Insular Collector of Customs or the Collector of Internal Revenue ostensibly pursuant to E.O. No. 41 dated 7 May 1909 to issue a certificate of origin of cigars about to be exported to the United States. The Court held that E.O. No. 41 conferred no legal right on anyone as its very nature, as determined by the relationship which produced [it], demonstrates clearly the impossibility of any other person enforcing [it] except the one who created [it]. (32 Phil. 520, 532). Kilosbayan, Incorporated v. Guingona, Jr., G.R. No. 113375, 05 May 1994, 232 SCRA 110, 169-171.
[10] [11] [12]
[13] [14] [15] [16] [17]
[18]
[19]
[20]
Citing Dorsen, Bender, Neuborne, Political and Civil Rights in the United States, Vol. I, 4 th ed., p. 1200.
You know this. :DRepublic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-63915 April 24, 1985 LORENZO M. TAADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners, vs. HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President , MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacaang Records Office, and FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents.
ESCOLIN, J.: Invoking the people's right to be informed on matters of public concern, a right recognized in Section 6, Article IV of the 1973 Philippine Constitution, 1 as well as the principle that laws to be valid and enforceable must be published in the Official Gazette or otherwise effectively promulgated, petitioners seek a writ of mandamus to compel respondent public officials to publish, and/or cause the publication in the Official Gazette of various presidential decrees, letters of instructions, general orders, proclamations, executive orders, letter of implementation and administrative orders. Specifically, the publication of the following presidential issuances is sought: a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200, 234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404, 406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574, 594, 599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 1842-1847. b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153, 155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224, 226-228, 231-239, 241-245, 248, 251, 253-261, 263-269, 271-273, 275-283, 285-289, 291, 293, 297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444- 445, 473, 486, 488, 498, 501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642, 665, 702, 712-713, 726, 837-839, 878-879, 881, 882, 939-940, 964,997,1149-1178,1180-1278. c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529, 1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-1609, 1612-1628, 1630-1649, 16941695, 1697-1701, 1705-1723, 1731-1734, 1737-1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 18351836, 1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984, 1986-2028, 2030-2044, 2046-2145, 21472161, 2163-2244. e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507, 509-510, 522, 524528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-568, 570, 574, 593, 594, 598-604, 609, 611- 647, 649-677, 679-703, 705-707, 712-786, 788-852, 854-857. f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81, 92, 94, 95, 107, 120, 122, 123. g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439. The respondents, through the Solicitor General, would have this case dismissed outright on the ground that petitioners have no legal personality or standing to bring the instant petition. The view is submitted that in the absence of any showing that petitioners are personally and directly affected or prejudiced by the alleged non-publication of the presidential issuances in question 2 said petitioners are without the requisite legal personality to institute this mandamus proceeding, they are not being "aggrieved parties" within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote: SEC. 3. Petition for Mandamus.When any tribunal, corporation, board or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use a rd enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered commanding the defendant, immediately or at some other specified time, to do the act required to be done to Protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the defendant. Upon the other hand, petitioners maintain that since the subject of the petition concerns a public right and its object is to compel the performance of a public duty, they need not show any specific interest for their petition to be given due course. The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor General, 3this Court held that while the general rule is that "a writ of mandamus would be granted to a private individual only in those cases where he has some private or particular interest to be subserved, or some particular right to be protected, independent of that which he holds with the public at large," and "it is for the public officers exclusively to apply for the writ when public rights are to be subserved [Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the
real party in interest and the relator at whose instigation the proceedings are instituted need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431]. Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper party to the mandamus proceedings brought to compel the Governor General to call a special election for the position of municipal president in the town of Silay, Negros Occidental. Speaking for this Court, Mr. Justice Grant T. Trent said: We are therefore of the opinion that the weight of authority supports the proposition that the relator is a proper party to proceedings of this character when a public right is sought to be enforced. If the general rule in America were otherwise, we think that it would not be applicable to the case at bar for the reason 'that it is always dangerous to apply a general rule to a particular case without keeping in mind the reason for the rule, because, if under the particular circumstances the reason for the rule does not exist, the rule itself is not applicable and reliance upon the rule may well lead to error' No reason exists in the case at bar for applying the general rule insisted upon by counsel for the respondent. The circumstances which surround this case are different from those in the United States, inasmuch as if the relator is not a proper party to these proceedings no other person could be, as we have seen that it is not the duty of the law officer of the Government to appear and represent the people in cases of this character. The reasons given by the Court in recognizing a private citizen's legal personality in the aforementioned case apply squarely to the present petition. Clearly, the right sought to be enforced by petitioners herein is a public right recognized by no less than the fundamental law of the land. If petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive of any other person to initiate the same, considering that the Solicitor General, the government officer generally empowered to represent the people, has entered his appearance for respondents in this case. Respondents further contend that publication in the Official Gazette is not a sine qua non requirement for the effectivity of laws where the laws themselves provide for their own effectivity dates. It is thus submitted that since the presidential issuances in question contain special provisions as to the date they are to take effect, publication in the Official Gazette is not indispensable for their effectivity. The point stressed is anchored on Article 2 of the Civil Code: Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided, ... The interpretation given by respondent is in accord with this Court's construction of said article. In a long line of decisions, 4 this Court has ruled that publication in the Official Gazette is necessary in those cases where the legislation itself does not provide for its effectivity date-for then the date of publication is material for determining its date of effectivity, which is the fifteenth day following its publication-but not when the law itself provides for the date when it goes into effect.
Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws with the fact of publication. Considered in the light of other statutes applicable to the issue at hand, the conclusion is easily reached that said Article 2 does not preclude the requirement of publication in the Official Gazette, even if the law itself provides for the date of its effectivity. Thus, Section 1 of Commonwealth Act 638 provides as follows: Section 1. There shall be published in the Official Gazette [1] all important legisiative acts and resolutions of a public nature of the, Congress of the Philippines; [2] all executive and administrative orders and proclamations, except such as have no general applicability; [3] decisions or abstracts of decisions of the Supreme Court and the Court of Appeals as may be deemed by said courts of sufficient importance to be so published; [4] such documents or classes of documents as may be required so to be published by law; and [5] such documents or classes of documents as the President of the Philippines shall determine from time to time to have general applicability and legal effect, or which he may authorize so to be published. ... The clear object of the above-quoted provision is to give the general public adequate notice of the various laws which are to regulate their actions and conduct as citizens. Without such notice and publication, there would be no basis for the application of the maxim "ignorantia legis non excusat." It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law of which he had no notice whatsoever, not even a constructive one. Perhaps at no time since the establishment of the Philippine Republic has the publication of laws taken so vital significance that at this time when the people have bestowed upon the President a power heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass media of the debates and deliberations in the Batasan Pambansaand for the diligent ones, ready access to the legislative recordsno such publicity accompanies the law-making process of the President. Thus, without publication, the people have no means of knowing what presidential decrees have actually been promulgated, much less a definite way of informing themselves of the specific contents and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la denominacion generica de leyes, se comprenden tambien los reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordines dictadas de conformidad con las mismas por el Gobierno en uso de su potestad. 5 The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the Official Gazette ... ." The word "shall" used therein imposes upon respondent officials an imperative duty. That duty must be enforced if the Constitutional right of the people to be informed on matters of public concern is to be given substance and reality. The law itself makes a list of what should be published in the Official Gazette. Such listing, to our mind, leaves respondents with no discretion whatsoever as to what must be included or excluded from such publication. The publication of all presidential issuances "of a public nature" or "of general applicability" is mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for their violation or otherwise impose a burden or. the people, such as tax and revenue measures, fall within this category. Other presidential issuances which apply only to particular persons or class of persons such as
administrative and executive orders need not be published on the assumption that they have been circularized to all concerned. 6 It is needless to add that the publication of presidential issuances "of a public nature" or "of general applicability" is a requirement of due process. It is a rule of law that before a person may be bound by law, he must first be officially and specifically informed of its contents. As Justice Claudio Teehankee said in Peralta vs. COMELEC 7: In a time of proliferating decrees, orders and letters of instructions which all form part of the law of the land, the requirement of due process and the Rule of Law demand that the Official Gazette as the official government repository promulgate and publish the texts of all such decrees, orders and instructions so that the people may know where to obtain their official and specific contents. The Court therefore declares that presidential issuances of general application, which have not been published, shall have no force and effect. Some members of the Court, quite apprehensive about the possible unsettling effect this decision might have on acts done in reliance of the validity of those presidential decrees which were published only during the pendency of this petition, have put the question as to whether the Court's declaration of invalidity apply to P.D.s which had been enforced or implemented prior to their publication. The answer is all too familiar. In similar situations in the past this Court had taken the pragmatic and realistic course set forth in Chicot County Drainage District vs. Baxter Bank 8 to wit: The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects-with respect to particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified. Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right of a party under the Moratorium Law, albeit said right had accrued in his favor before said law was declared unconstitutional by this Court. Similarly, the implementation/enforcement of presidential decrees prior to their publication in the Official Gazette is "an operative fact which may have consequences which cannot be justly ignored. The
past cannot always be erased by a new judicial declaration ... that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified." From the report submitted to the Court by the Clerk of Court, it appears that of the presidential decrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos. 1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been so published. 10 Neither the subject matters nor the texts of these PDs can be ascertained since no copies thereof are available. But whatever their subject matter may be, it is undisputed that none of these unpublished PDs has ever been implemented or enforced by the government. InPesigan vs. Angeles, 11 the Court, through Justice Ramon Aquino, ruled that "publication is necessary to apprise the public of the contents of [penal] regulations and make the said penalties binding on the persons affected thereby. " The cogency of this holding is apparently recognized by respondent officials considering the manifestation in their comment that "the government, as a matter of policy, refrains from prosecuting violations of criminal laws until the same shall have been published in the Official Gazette or in some other publication, even though some criminal laws provide that they shall take effect immediately. WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished presidential issuances which are of general application, and unless so published, they shall have no binding force and effect. SO ORDERED. Relova, J., concurs. Aquino, J., took no part. Concepcion, Jr., J., is on leave.
Separate Opinions
FERNANDO, C.J., concurring (with qualification): There is on the whole acceptance on my part of the views expressed in the ably written opinion of Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the requirement of publication in the Official Gazette for unpublished "presidential issuances" to have binding force and effect. I shall explain why. 1. It is of course true that without the requisite publication, a due process question would arise if made to apply adversely to a party who is not even aware of the existence of any legislative or executive act
having the force and effect of law. My point is that such publication required need not be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to be gained. It conduces to certainty. That is too be admitted. It does not follow, however, that failure to do so would in all cases and under all circumstances result in a statute, presidential decree or any other executive act of the same category being bereft of any binding force and effect. To so hold would, for me, raise a constitutional question. Such a pronouncement would lend itself to the interpretation that such a legislative or presidential act is bereft of the attribute of effectivity unless published in the Official Gazette. There is no such requirement in the Constitution as Justice Plana so aptly pointed out. It is true that what is decided now applies only to past "presidential issuances". Nonetheless, this clarification is, to my mind, needed to avoid any possible misconception as to what is required for any statute or presidential act to be impressed with binding force or effectivity. 2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first paragraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity, unlike some Constitutions elsewhere. It may be said though that the guarantee of due process requires notice of laws to affected Parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette. The due process clause is not that precise. 1 I am likewise in agreement with its closing paragraph: "In fine, I concur in the majority decision to the extent that it requires notice before laws become effective, for no person should be bound by a law without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official Gazette. 2 3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government "must be ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it to the level of mere futility, as pointed out by Justice Cardozo, "if it is unknown and unknowable. 4 Publication, to repeat, is thus essential. What I am not prepared to subscribe to is the doctrine that it must be in the Official Gazette. To be sure once published therein there is the ascertainable mode of determining the exact date of its effectivity. Still for me that does not dispose of the question of what is the jural effect of past presidential decrees or executive acts not so published. For prior thereto, it could be that parties aware of their existence could have conducted themselves in accordance with their provisions. If no legal consequences could attach due to lack of publication in the Official Gazette, then serious problems could arise. Previous transactions based on such "Presidential Issuances" could be open to question. Matters deemed settled could still be inquired into. I am not prepared to hold that such an effect is contemplated by our decision. Where such presidential decree or executive act is made the basis of a criminal prosecution, then, of course, its ex post facto character becomes evident. 5 In civil cases though, retroactivity as such is not conclusive on the due process aspect. There must still be a showing of arbitrariness. Moreover, where the challenged presidential decree or executive act was issued under the police power, the non-impairment clause of the Constitution may not always be successfully invoked. There must still be that process of balancing to determine whether or not it could in such a case be tainted by infirmity. 6 In traditional terminology, there could arise then a question of unconstitutional application. That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further than to affirm that publication is essential to the effectivity of a legislative or executive act of a general application. I am not in agreement with the view that such publication must be in the Official Gazette. The Civil Code itself in its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen days following the completion of their publication in the Official Gazette is subject to this exception, "unless it is otherwise provided." Moreover, the Civil Code is itself only a legislative enactment, Republic Act No. 386. It does not and cannot have the juridical force of a constitutional command. A later legislative or executive act which has the force and effect of law can legally provide for a different rule. 5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that presidential decrees and executive acts not thus previously published in the Official Gazette would be devoid of any legal character. That would be, in my opinion, to go too far. It may be fraught, as earlier noted, with undesirable consequences. I find myself therefore unable to yield assent to such a pronouncement. I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this separate opinion. Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.
TEEHANKEE, J., concurring: I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice Herrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of equal application to all similarly circumstances and not subject to arbitrary change but only under certain set procedures. The Court has consistently stressed that "it is an elementary rule of fair play and justice that a reasonable opportunity to be informed must be afforded to the people who are commanded to obey before they can be punished for its violation, 1 citing the settled principle based on due process enunciated in earlier cases that "before the public is bound by its contents, especially its penal provisions, a law, regulation or circular must first be published and the people officially and specially informed of said contents and its penalties. Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article 3 of the Civil Code (based on constructive notice that the provisions of the law are ascertainable from the public and official repository where they are duly published) that "Ignorance of the law excuses no one from compliance therewith. Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which are silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is manifestly untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided, " i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to a
law that has been duly published pursuant to the basic constitutional requirements of due process. The best example of this is the Civil Code itself: the same Article 2 provides otherwise that it "shall take effect [only] one year [not 15 days] after such publication. 2 To sustain respondents' misreading that "most laws or decrees specify the date of their effectivity and for this reason, publication in the Official Gazette is not necessary for their effectivity 3 would be to nullify and render nugatory the Civil Code's indispensable and essential requirement of prior publication in the Official Gazette by the simple expedient of providing for immediate effectivity or an earlier effectivity date in the law itself before the completion of 15 days following its publication which is the period generally fixed by the Civil Code for its proper dissemination.
MELENCIO-HERRERA, J., concurring: I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it has to be published. What I would like to state in connection with that proposition is that when a date of effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after its publication in the Official Gazette, it will not mean that the decree can have retroactive effect to the date of effectivity mentioned in the decree itself. There should be no retroactivity if the retroactivity will run counter to constitutional rights or shall destroy vested rights.
PLANA, J., concurring (with qualification): The Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of due process requires notice of laws to affected parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette. The due process clause is not that precise. Neither is the publication of laws in the Official Gazette required by any statute as a prerequisite for their effectivity, if said laws already provide for their effectivity date. Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided " Two things may be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision as to when it will take effect. Secondly, it clearly recognizes that each law may provide not only a different period for reckoning its effectivity date but also a different mode of notice. Thus, a law may prescribe that it shall be published elsewhere than in the Official Gazette. Commonwealth Act No. 638, in my opinion, does not support the proposition that for their effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to Provide for the Uniform Publication and Distribution of the Official Gazette." Conformably therewith, it authorizes the publication of the Official Gazette, determines its frequency, provides for its sale and distribution, and defines the authority of the Director of Printing in relation thereto. It also enumerates what shall be
published in the Official Gazette, among them, "important legislative acts and resolutions of a public nature of the Congress of the Philippines" and "all executive and administrative orders and proclamations, except such as have no general applicability." It is noteworthy that not all legislative acts are required to be published in the Official Gazette but only "important" ones "of a public nature." Moreover, the said law does not provide that publication in the Official Gazette is essential for the effectivity of laws. This is as it should be, for all statutes are equal and stand on the same footing. A law, especially an earlier one of general application such as Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent statute that has a provision of its own as to when and how it will take effect. Only a higher law, which is the Constitution, can assume that role. In fine, I concur in the majority decision to the extent that it requires notice before laws become effective, for no person should be bound by a law without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official Gazette. Cuevas and Alampay, JJ., concur.
GUTIERREZ, Jr., J., concurring: I concur insofar as publication is necessary but reserve my vote as to the necessity of such publication being in the Official Gazette.
DE LA FUENTE, J., concurring: I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or general applicability ineffective, until due publication thereof.
Separate Opinions FERNANDO, C.J., concurring (with qualification): There is on the whole acceptance on my part of the views expressed in the ably written opinion of Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the requirement of publication in the Official Gazette for unpublished "presidential issuances" to have binding force and effect. I shall explain why.
1. It is of course true that without the requisite publication, a due process question would arise if made to apply adversely to a party who is not even aware of the existence of any legislative or executive act having the force and effect of law. My point is that such publication required need not be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to be gained. It conduces to certainty. That is too be admitted. It does not follow, however, that failure to do so would in all cases and under all circumstances result in a statute, presidential decree or any other executive act of the same category being bereft of any binding force and effect. To so hold would, for me, raise a constitutional question. Such a pronouncement would lend itself to the interpretation that such a legislative or presidential act is bereft of the attribute of effectivity unless published in the Official Gazette. There is no such requirement in the Constitution as Justice Plana so aptly pointed out. It is true that what is decided now applies only to past "presidential issuances". Nonetheless, this clarification is, to my mind, needed to avoid any possible misconception as to what is required for any statute or presidential act to be impressed with binding force or effectivity. 2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first paragraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity, unlike some Constitutions elsewhere. It may be said though that the guarantee of due process requires notice of laws to affected Parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette. The due process clause is not that precise. 1 I am likewise in agreement with its closing paragraph: "In fine, I concur in the majority decision to the extent that it requires notice before laws become effective, for no person should be bound by a law without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official Gazette. 2 3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government "must be ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it to the level of mere futility, as pointed out by Justice Cardozo, "if it is unknown and unknowable. 4 Publication, to repeat, is thus essential. What I am not prepared to subscribe to is the doctrine that it must be in the Official Gazette. To be sure once published therein there is the ascertainable mode of determining the exact date of its effectivity. Still for me that does not dispose of the question of what is the jural effect of past presidential decrees or executive acts not so published. For prior thereto, it could be that parties aware of their existence could have conducted themselves in accordance with their provisions. If no legal consequences could attach due to lack of publication in the Official Gazette, then serious problems could arise. Previous transactions based on such "Presidential Issuances" could be open to question. Matters deemed settled could still be inquired into. I am not prepared to hold that such an effect is contemplated by our decision. Where such presidential decree or executive act is made the basis of a criminal prosecution, then, of course, its ex post facto character becomes evident. 5 In civil cases though, retroactivity as such is not conclusive on the due process aspect. There must still be a showing of arbitrariness. Moreover, where the challenged presidential decree or executive act was issued under the police power, the non-impairment clause of the Constitution may not always be successfully invoked. There must still be that process of balancing to determine whether or not it could in such a case be
tainted by infirmity. 6 In traditional terminology, there could arise then a question of unconstitutional application. That is as far as it goes. 4. Let me make therefore that my qualified concurrence goes no further than to affirm that publication is essential to the effectivity of a legislative or executive act of a general application. I am not in agreement with the view that such publication must be in the Official Gazette. The Civil Code itself in its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen days following the completion of their publication in the Official Gazette is subject to this exception, "unless it is otherwise provided." Moreover, the Civil Code is itself only a legislative enactment, Republic Act No. 386. It does not and cannot have the juridical force of a constitutional command. A later legislative or executive act which has the force and effect of law can legally provide for a different rule. 5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that presidential decrees and executive acts not thus previously published in the Official Gazette would be devoid of any legal character. That would be, in my opinion, to go too far. It may be fraught, as earlier noted, with undesirable consequences. I find myself therefore unable to yield assent to such a pronouncement. I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this separate opinion. Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.
TEEHANKEE, J., concurring: I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice Herrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of equal application to all similarly circumstances and not subject to arbitrary change but only under certain set procedures. The Court has consistently stressed that "it is an elementary rule of fair play and justice that a reasonable opportunity to be informed must be afforded to the people who are commanded to obey before they can be punished for its violation, 1 citing the settled principle based on due process enunciated in earlier cases that "before the public is bound by its contents, especially its penal provisions, a law, regulation or circular must first be published and the people officially and specially informed of said contents and its penalties. Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article 3 of the Civil Code (based on constructive notice that the provisions of the law are ascertainable from the public and official repository where they are duly published) that "Ignorance of the law excuses no one from compliance therewith. Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which are silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is manifestly untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after
fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided, " i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to a law that has been duly published pursuant to the basic constitutional requirements of due process. The best example of this is the Civil Code itself: the same Article 2 provides otherwise that it "shall take effect [only] one year [not 15 days] after such publication. 2 To sustain respondents' misreading that "most laws or decrees specify the date of their effectivity and for this reason, publication in the Official Gazette is not necessary for their effectivity 3 would be to nullify and render nugatory the Civil Code's indispensable and essential requirement of prior publication in the Official Gazette by the simple expedient of providing for immediate effectivity or an earlier effectivity date in the law itself before the completion of 15 days following its publication which is the period generally fixed by the Civil Code for its proper dissemination.
MELENCIO-HERRERA, J., concurring: I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it has to be published. What I would like to state in connection with that proposition is that when a date of effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after its publication in the Official Gazette, it will not mean that the decree can have retroactive effect to the date of effectivity mentioned in the decree itself. There should be no retroactivity if the retroactivity will run counter to constitutional rights or shall destroy vested rights.
PLANA, J., concurring (with qualification): The Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of due process requires notice of laws to affected parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette. The due process clause is not that precise. Neither is the publication of laws in the Official Gazette required by any statute as a prerequisite for their effectivity, if said laws already provide for their effectivity date. Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided " Two things may be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision as to when it will take effect. Secondly, it clearly recognizes that each law may provide not only a different period for reckoning its effectivity date but also a different mode of notice. Thus, a law may prescribe that it shall be published elsewhere than in the Official Gazette. Commonwealth Act No. 638, in my opinion, does not support the proposition that for their effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to Provide for the Uniform Publication and Distribution of the Official Gazette." Conformably therewith, it authorizes
the publication of the Official Gazette, determines its frequency, provides for its sale and distribution, and defines the authority of the Director of Printing in relation thereto. It also enumerates what shall be published in the Official Gazette, among them, "important legislative acts and resolutions of a public nature of the Congress of the Philippines" and "all executive and administrative orders and proclamations, except such as have no general applicability." It is noteworthy that not all legislative acts are required to be published in the Official Gazette but only "important" ones "of a public nature." Moreover, the said law does not provide that publication in the Official Gazette is essential for the effectivity of laws. This is as it should be, for all statutes are equal and stand on the same footing. A law, especially an earlier one of general application such as Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent statute that has a provision of its own as to when and how it will take effect. Only a higher law, which is the Constitution, can assume that role. In fine, I concur in the majority decision to the extent that it requires notice before laws become effective, for no person should be bound by a law without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official Gazette. Cuevas and Alampay, JJ., concur.
GUTIERREZ, Jr., J., concurring: I concur insofar as publication is necessary but reserve my vote as to the necessity of such publication being in the Official Gazette.
DE LA FUENTE, J., concurring: I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or general applicability ineffective, until due publication thereof. Footnotes 1 Section 6. The right of the people to information on matters of public concern shag be recognized, access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, shag be afforded the citizens subject to such limitation as may be provided by law. 2 Anti-Chinese League vs. Felix, 77 Phil. 1012; Costas vs. Aidanese, 45 Phil. 345; Almario vs. City Mayor, 16 SCRA 151;Parting vs. San Jose Petroleum, 18 SCRA 924; Dumlao vs. Comelec, 95 SCRA 392. 3 16 Phil. 366, 378. 4 Camacho vs. Court of Industrial Relations, 80 Phil 848; Mejia vs. Balolong, 81 Phil. 486; Republic of the Philippines vs. Encamacion, 87 Phil. 843; Philippine Blooming Mills, Inc. vs. Social Security System, 17 SCRA 1077; Askay vs. Cosalan, 46 Phil. 179.
5 1 Manresa, Codigo Civil 7th Ed., p. 146. 6 People vs. Que Po Lay, 94 Phil. 640; Balbuena et al. vs. Secretary of Education, et al., 110 Phil. 150. 7 82 SCRA 30, dissenting opinion. 8 308 U.S. 371, 374. 9 93 Phil.. 68,. 10 The report was prepared by the Clerk of Court after Acting Director Florendo S. Pablo Jr. of the Government Printing Office, failed to respond to her letter-request regarding the respective dates of publication in the Official Gazette of the presidential issuances listed therein. No report has been submitted by the Clerk of Court as to the publication or non-publication of other presidential issuances. 11 129 SCRA 174. Fernando, CJ.: 1 Separate Opinion of Justice Plana, first paragraph. He mentioned in tills connection Article 7, Sec. 21 of the Wisconsin Constitution and State ex rel. White v. Grand Superior Ct., 71 ALR 1354, citing the Constitution of Indiana, U.S.A 2 Ibid, closing paragraph. 3 Learned Hand, The Spirit of Liberty 104 (1960). 4 Cardozo, The Growth of the Law, 3 (1924). 5 Cf. Nunez v. Sandiganbayan, G.R. No. 50581-50617, January 30, 1982, 111 SCRA 433. 6 Cf. Alalayan v. National Power Corporation, L-24396, July 29, 1968, 24 SCRA 172. Teehankee, J.: 1 People vs. de Dios, G.R. No. 11003, Aug. 3l, 1959, per the late Chief Justice Paras. 2 Notes in brackets supplied. 3 Respondents: comment, pp. 14-15. Plana, J.: * See e.g., Wisconsin Constitution, Art. 7, Sec. 21: "The legislature shall provide publication of all statute laws ... and no general law shall be in force until published." See also S ate ex rel. White vs. Grand Superior Ct., 71 ALR 1354, citing Constitution of Indiana, U.S.A.
EN BANC
[G.R. No. 133250. July 9, 2002]
FRANCISCO I. CHAVEZ, petitioner, vs. PUBLIC ESTATES AUTHORITY and AMARI COASTAL BAY DEVELOPMENT CORPORATION, respondents . DECISION
CARPIO, J .:
This is an original Petition for Mandamus with prayer for a writ of preliminary injunction and a temporary restraining order. The petition seeks to compel the Public Estates Authority (PEA for brevity) to disclose all facts on PEAs then on-going renegotiations with Amari Coastal Bay and Development Corporation (AMARI for brevity) to reclaim portions of Manila Bay. The petition further seeks to enjoin PEA from signing a new agreement with AMARI involving such reclamation.
The Facts On November 20, 1973, the government, through the Commissioner of Public Highways, signed a contract with the Construction and Development Corporation of the Philippines (CDCP for brevity) to reclaim certain foreshore and offshore areas of Manila Bay. The contract also included the construction of Phases I and II of the Manila-Cavite Coastal Road. CDCP obligated itself to carry out all the works in consideration of fifty percent of the total reclaimed land. On February 4, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1084 creating PEA. PD No. 1084 tasked PEA to reclaim land, including foreshore and submerged areas, and to develop, improve, acquire, x x x lease and sell any and all kinds of lands. [1] On the same date, then President Marcos issued Presidential Decree No. 1085 transferring to PEA the lands reclaimed in the foreshore and offshore of the Manila Bay[2] under the Manila-Cavite Coastal Road and Reclamation Project (MCCRRP). On December 29, 1981, then President Marcos issued a memorandum directing PEA to amend its contract with CDCP, so that [A]ll future works in MCCRRP x x x shall be funded and owned by PEA. Accordingly, PEA and CDCP executed a Memorandum of Agreement dated December 29, 1981, which stated: (i) CDCP shall undertake all reclamation, construction, and such other works in the MCCRRP as may be agreed upon by the parties, to be paid according to progress of works on a unit price/lump sum basis for items of work to be agreed upon, subject to price escalation, retention and other terms and conditions provided for in Presidential Decree No. 1594. All the financing required for such works shall be provided by PEA. xxx (iii) x x x CDCP shall give up all its development rights and hereby agrees to cede and transfer in favor of PEA, all of the rights, title, interest and participation of CDCP in and to all the areas of land reclaimed by CDCP in the MCCRRP as of December 30, 1981 which have not yet been sold, transferred or otherwise
disposed of by CDCP as of said date, which areas consist of approximately Ninety-Nine Thousand Four Hundred Seventy Three (99,473) square meters in the Financial Center Area covered by land pledge No. 5 and approximately Three Million Three Hundred Eighty Two Thousand Eight Hundred Eighty Eight (3,382,888) square meters of reclaimed areas at varying elevations above Mean Low Water Level located outside the Financial Center Area and the First Neighborhood Unit. [3] On January 19, 1988, then President Corazon C. Aquino issued Special Patent No. 3517, granting and transferring to PEA the parcels of land so reclaimed under the Manila-Cavite Coastal Road and Reclamation Project (MCCRRP) containing a total area of one million nine hundred fifteen thousand eight hundred ninety four (1,915,894) square meters. Subsequently, on April 9, 1988, the Register of Deeds of the Municipality of Paraaque issued Transfer Certificates of Title Nos. 7309, 7311, and 7312, in the name of PEA, covering the three reclaimed islands known as the Freedom Islands located at the southern portion of the Manila-Cavite Coastal Road, Paraaque City. The Freedom Islands have a total land area of One Million Five Hundred Seventy Eight Thousand Four Hundred and Forty One (1,578,441) square meters or 157.841 hectares. On April 25, 1995, PEA entered into a Joint Venture Agreement (JVA for brevity) with AMARI, a private corporation, to develop the Freedom Islands. The JVA also required the reclamation of an additional 250 hectares of submerged areas surrounding these islands to complete the configuration in the Master Development Plan of the Southern Reclamation Project-MCCRRP. PEA and AMARI entered into the JVA through negotiation without public bidding. [4] On April 28, 1995, the Board of Directors of PEA, in its Resolution No. 1245, confirmed the JVA. [5] On June 8, 1995, then President Fidel V. Ramos, through then Executive Secretary Ruben Torres, approved the JVA.[6] On November 29, 1996, then Senate President Ernesto Maceda delivered a privilege speech in the Senate and denounced the JVA as the grandmother of all scams. As a result, the Senate Committee on Government Corporations and Public Enterprises, and the Committee on Accountability of Public Officers and Investigations, conducted a joint investigation. The Senate Committees reported the results of their investigation in Senate Committee Report No. 560 dated September 16, 1997. [7] Among the conclusions of their report are: (1) the reclaimed lands PEA seeks to transfer to AMARI under the JVA are lands of the public domain which the government has not classified as alienable lands and therefore PEA cannot alienate these lands; (2) the certificates of title covering the Freedom Islands are thus void, and (3) the JVA itself is illegal. On December 5, 1997, then President Fidel V. Ramos issued Presidential Administrative Order No. 365 creating a Legal Task Force to conduct a study on the legality of the JVA in view of Senate Committee Report No. 560. The members of the Legal Task Force were the Secretary of Justice, [8] the Chief Presidential Legal Counsel, [9] and the Government Corporate Counsel. [10] The Legal Task Force upheld the legality of the JVA, contrary to the conclusions reached by the Senate Committees.[11] On April 4 and 5, 1998, the Philippine Daily Inquirer and Today published reports that there were ongoing renegotiations between PEA and AMARI under an order issued by then President Fidel V. Ramos. According to these reports, PEA Director Nestor Kalaw, PEA Chairman Arsenio Yulo and retired Navy Officer Sergio Cruz composed the negotiating panel of PEA. On April 13, 1998, Antonio M. Zulueta filed before the Court a Petition for Prohibition with Application for the Issuance of a Temporary Restraining Order and Preliminary Injunction docketed as G.R. No. 132994 seeking to nullify the JVA. The Court dismissed the petition for unwarranted disregard of judicial hierarchy, without prejudice to the refiling of the case before the proper court. [12] On April 27, 1998, petitioner Frank I. Chavez (Petitioner for brevity) as a taxpayer, filed the instant Petition for Mandamus with Prayer for the Issuance of a Writ of Preliminary Injunction and Temporary Restraining Order. Petitioner contends the government stands to lose billions of pesos in the sale by PEA of
the reclaimed lands to AMARI. Petitioner prays that PEA publicly disclose the terms of any renegotiation of the JVA, invoking Section 28, Article II, and Section 7, Article III, of the 1987 Constitution on the right of the people to information on matters of public concern. Petitioner assails the sale to AMARI of lands of the public domain as a blatant violation of Section 3, Article XII of the 1987 Constitution prohibiting the sale of alienable lands of the public domain to private corporations. Finally, petitioner asserts that he seeks to enjoin the loss of billions of pesos in properties of the State that are of public dominion. After several motions for extension of time,[13] PEA and AMARI filed their Comments on October 19, 1998 and June 25, 1998, respectively. Meanwhile, on December 28, 1998, petitioner filed an Omnibus Motion: (a) to require PEA to submit the terms of the renegotiated PEA-AMARI contract; (b) for issuance of a temporary restraining order; and (c) to set the case for hearing on oral argument. Petitioner filed a Reiterative Motion for Issuance of a TRO dated May 26, 1999, which the Court denied in a Resolution dated June 22, 1999. In a Resolution dated March 23, 1999, the Court gave due course to the petition and required the parties to file their respective memoranda. On March 30, 1999, PEA and AMARI signed the Amended Joint Venture Agreement (Amended JVA, for brevity). On May 28, 1999, the Office of the President under the administration of then President Joseph E. Estrada approved the Amended JVA. Due to the approval of the Amended JVA by the Office of the President, petitioner now prays that on constitutional and statutory grounds the renegotiated contract be declared null and void. [14]
The Issues The issues raised by petitioner, PEA [15] and AMARI[16] are as follows:
I. WHETHER THE PRINCIPAL RELIEFS PRAYED FOR IN THE PETITION ARE MOOT AND ACADEMIC BECAUSE OF SUBSEQUENT EVENTS; II. WHETHER THE PETITION MERITS DISMISSAL FOR FAILING TO OBSERVE THE PRINCIPLE GOVERNING THE HIERARCHY OF COURTS; III. WHETHER THE PETITION MERITS DISMISSAL FOR NON-EXHAUSTION OF ADMINISTRATIVE REMEDIES; IV. WHETHER PETITIONER HAS LOCUS STANDI TO BRING THIS SUIT; V. WHETHER THE CONSTITUTIONAL RIGHT TO INFORMATION INCLUDES OFFICIAL INFORMATION ON ON-GOING NEGOTIATIONS BEFORE A FINAL AGREEMENT; VI. WHETHER THE STIPULATIONS IN THE AMENDED JOINT VENTURE AGREEMENT FOR THE TRANSFER TO AMARI OF CERTAIN LANDS, RECLAIMED AND STILL TO BE RECLAIMED, VIOLATE THE 1987 CONSTITUTION; AND VII. WHETHER THE COURT IS THE PROPER FORUM FOR RAISING THE ISSUE OF WHETHER THE AMENDED JOINT VENTURE AGREEMENT IS GROSSLY DISADVANTAGEOUS TO THE GOVERNMENT.
The Courts Ruling First issue: whether the principal reliefs prayed for in the petition are moot and academic because of subsequent events.
The petition prays that PEA publicly disclose the terms and conditions of the on-going negotiations for a new agreement. The petition also prays that the Court enjoin PEA from privately entering into, perfecting and/or executing any new agreement with AMARI. PEA and AMARI claim the petition is now moot and academic because AMARI furnished petitioner on June 21, 1999 a copy of the signed Amended JVA containing the terms and conditions agreed upon in the renegotiations. Thus, PEA has satisfied petitioners prayer for a public disclosure of the renegotiations. Likewise, petitioners prayer to enjoin the signing of the Amended JVA is now moot because PEA and AMARI have already signed the Amended JVA on March 30, 1999. Moreover, the Office of the President has approved the Amended JVA on May 28, 1999. Petitioner counters that PEA and AMARI cannot avoid the constitutional issue by simply fast-tracking the signing and approval of the Amended JVA before the Court could act on the issue. Presidential approval does not resolve the constitutional issue or remove it from the ambit of judicial review. We rule that the signing of the Amended JVA by PEA and AMARI and its approval by the President cannot operate to moot the petition and divest the Court of its jurisdiction. PEA and AMARI have still to implement the Amended JVA. The prayer to enjoin the signing of the Amended JVA on constitutional grounds necessarily includes preventing its implementation if in the meantime PEA and AMARI have signed one in violation of the Constitution. Petitioners principal basis in assailing the renegotiation of the JVA is its violation of Section 3, Article XII of the Constitution, which prohibits the government from alienating lands of the public domain to private corporations. If the Amended JVA indeed violates the Constitution, it is the duty of the Court to enjoin its implementation, and if already implemented, to annul the effects of such unconstitutional contract. The Amended JVA is not an ordinary commercial contract but one which seeks to transfer title and ownership to 367.5 hectares of reclaimed lands and submerged areas of Manila Bay to a single private corporation. It now becomes more compelling for the Court to resolve the issue to insure the government itself does not violate a provision of the Constitution intended to safeguard the national patrimony. Supervening events, whether intended or accidental, cannot prevent the Court from rendering a decision if there is a grave violation of the Constitution. In the instant case, if the Amended JVA runs counter to the Constitution, the Court can still prevent the transfer of title and ownership of alienable lands of the public domain in the name of AMARI. Even in cases where supervening events had made the cases moot, the Court did not hesitate to resolve the legal or constitutional issues raised to formulate controlling principles to guide the bench, bar, and the public. [17] Also, the instant petition is a case of first impression. All previous decisions of the Court involving Section 3, Article XII of the 1987 Constitution, or its counterpart provision in the 1973 Constitution,[18] covered agricultural lands sold to private corporations which acquired the lands from private parties. The transferors of the private corporations claimed or could claim the right to judicial confirmation of their imperfect titles [19] under Title II of Commonwealth Act. 141 (CA No. 141 for brevity). In the instant case, AMARI seeks to acquire from PEA, a public corporation, reclaimed lands and submerged areas for nonagricultural purposes by purchase under PD No. 1084 (charter of PEA) and Title III of CA No. 141. Certain undertakings by AMARI under the Amended JVA constitute the consideration for the purchase. Neither AMARI nor PEA can claim judicial confirmation of their titles because the lands covered by the Amended JVA are newly reclaimed or still to be reclaimed. Judicial confirmation of imperfect title requires open, continuous, exclusive and notorious occupation of agricultural lands of the public domain for at least thirty years since June 12, 1945 or earlier. Besides, the deadline for filing applications for judicial confirmation of imperfect title expired on December 31, 1987. [20] Lastly, there is a need to resolve immediately the constitutional issue raised in this petition because of the possible transfer at any time by PEA to AMARI of title and ownership to portions of the reclaimed lands. Under the Amended JVA, PEA is obligated to transfer to AMARI the latters seventy percent proportionate
share in the reclaimed areas as the reclamation progresses. The Amended JVA even allows AMARI to mortgage at any time the entire reclaimed area to raise financing for the reclamation project. [21]
Second issue: whether the petition merits dismissal for failing to observe the principle governing the hierarchy of courts. PEA and AMARI claim petitioner ignored the judicial hierarchy by seeking relief directly from the Court. The principle of hierarchy of courts applies generally to cases involving factual questions. As it is not a trier of facts, the Court cannot entertain cases involving factual issues. The instant case, however, raises constitutional issues of transcendental importance to the public. [22] The Court can resolve this case without determining any factual issue related to the case. Also, the instant case is a petition for mandamus which falls under the original jurisdiction of the Court under Section 5, Article VIII of the Constitution. We resolve to exercise primary jurisdiction over the instant case.
Third issue: whether the petition merits dismissal for non-exhaustion of administrative remedies. PEA faults petitioner for seeking judicial intervention in compelling PEA to disclose publicly certain information without first asking PEA the needed information. PEA claims petitioners direct resort to the Court violates the principle of exhaustion of administrative remedies. It also violates the rule that mandamus may issue only if there is no other plain, speedy and adequate remedy in the ordinary course of law. PEA distinguishes the instant case from Taada v. Tuvera[23] where the Court granted the petition for mandamus even if the petitioners there did not initially demand from the Office of the President the publication of the presidential decrees. PEA points out that in Taada , the Executive Department had an affirmative statutory duty under Article 2 of the Civil Code [24] and Section 1 of Commonwealth Act No. 638[25] to publish the presidential decrees. There was, therefore, no need for the petitioners in Taada to make an initial demand from the Office of the President. In the instant case, PEA claims it has no affirmative statutory duty to disclose publicly information about its renegotiation of the JVA. Thus, PEA asserts that the Court must apply the principle of exhaustion of administrative remedies to the instant case in view of the failure of petitioner here to demand initially from PEA the needed information. The original JVA sought to dispose to AMARI public lands held by PEA, a government corporation. Under Section 79 of the Government Auditing Code,[26]2 the disposition of government lands to private parties requires public bidding. PEA was under a positive legal duty to disclose to the public the terms and conditions for the sale of its lands. The law obligated PEA to make this public disclosure even without demand from petitioner or from anyone. PEA failed to make this public disclosure because the original JVA, like the Amended JVA, was the result of a negotiated contract , not of a public bidding. Considering that PEA had an affirmative statutory duty to make the public disclosure, and was even in breach of this legal duty, petitioner had the right to seek direct judicial intervention.
Republic of the Philippines SUPREME COURT Manila FIRST DIVISION
G.R. No. 115381 December 23, 1994 KILUSANG MAYO UNO LABOR CENTER, petitioner, vs. HON. JESUS B. GARCIA, JR., the LAND TRANSPORTATION FRANCHISING AND REGULATORY BOARD, and the PROVINCIAL BUS OPERATORS ASSOCIATION OF THE PHILIPPINES, respondents. Potenciano A. Flores for petitioner. Robert Anthony C. Sison, Cesar B. Brillantes and Jose Z. Galsim for private respondent. Jose F. Miravite for movants.
KAPUNAN, J.: Public utilities are privately owned and operated businesses whose service are essential to the general public. They are enterprises which specially cater to the needs of the public and conduce to their comfort and convenience. As such, public utility services are impressed with public interest and concern. The same is true with respect to the business of common carrier which holds such a peculiar relation to the public interest that there is superinduced upon it the right of public regulation when private properties are affected with public interest, hence, they cease to be juris privati only. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect grants to the public an interest in that use, and must submit to the control by the public for the common good, to the extent of the interest he has thus created. 1 An abdication of the licensing and regulatory government agencies of their functions as the instant petition seeks to show, is indeed lamentable. Not only is it an unsound administrative policy but it is inimical to public trust and public interest as well. The instant petition for certiorari assails the constitutionality and validity of certain memoranda, circulars and/or orders of the Department of Transportation and Communications (DOTC) and the Land Transportation Franchising and Regulatory Board LTFRB) 2 which, among others, (a) authorize provincial bus and jeepney operators to increase or decrease the prescribed transportation fares without application therefor with the LTFRB and without hearing and approval thereof by said agency in violation of Sec. 16(c) of Commonwealth Act No. 146, as amended, otherwise known as the Public Service Act, and in derogation of LTFRB's duty to fix and determine just and reasonable fares by
delegating that function to bus operators, and (b) establish a presumption of public need in favor of applicants for certificates of public convenience (CPC) and place on the oppositor the burden of proving that there is no need for the proposed service, in patent violation not only of Sec. 16(c) of CA 146, as amended, but also of Sec. 20(a) of the same Act mandating that fares should be "just and reasonable." It is, likewise, violative of the Rules of Court which places upon each party the burden to prove his own affirmative allegations. 3 The offending provisions contained in the questioned issuances pointed out by petitioner, have resulted in the introduction into our highways and thoroughfares thousands of old and smoke-belching buses, many of which are right-hand driven, and have exposed our consumers to the burden of spiraling costs of public transportation without hearing and due process. The following memoranda, circulars and/or orders are sought to be nullified by the instant petition, viz: (a) DOTC Memorandum Order 90-395, dated June 26, 1990 relative to the implementation of a fare range scheme for provincial bus services in the country; (b) DOTC Department Order No. 92-587, dated March 30, 1992, defining the policy framework on the regulation of transport services; (c) DOTC Memorandum dated October 8, 1992, laying down rules and procedures to implement Department Order No. 92-587; (d) LTFRB Memorandum Circular No. 92-009, providing implementing guidelines on the DOTC Department Order No. 92-587; and (e) LTFRB Order dated March 24, 1994 in Case No. 94-3112. The relevant antecedents are as follows: On June 26, 1990; then Secretary of DOTC, Oscar M. Orbos, issued Memorandum Circular No. 90-395 to then LTFRB Chairman, Remedios A.S. Fernando allowing provincial bus operators to charge passengers rates within a range of 15% above and 15% below the LTFRB official rate for a period of one (1) year. The text of the memorandum order reads in full: One of the policy reforms and measures that is in line with the thrusts and the priorities set out in the Medium-Term Philippine Development Plan (MTPDP) 1987 1992) is the liberalization of regulations in the transport sector. Along this line, the Government intends to move away gradually from regulatory policies and make progress towards greater reliance on free market forces. Based on several surveys and observations, bus companies are already charging passenger rates above and below the official fare declared by LTFRB on many provincial routes. It is in this context that some form of liberalization on public transport fares is to be tested on a pilot basis. In view thereof, the LTFRB is hereby directed to immediately publicize a fare range scheme for all provincial bus routes in country (except those operating within Metro Manila). Transport Operators shall be allowed to charge passengers within a range of fifteen percent (15%) above and fifteen percent (15%) below the LTFRB official rate for a period of one year. Guidelines and procedures for the said scheme shall be prepared by LTFRB in coordination with the DOTC Planning Service. The implementation of the said fare range scheme shall start on 6 August 1990.
For compliance. (Emphasis ours.) Finding the implementation of the fare range scheme "not legally feasible," Remedios A.S. Fernando submitted the following memorandum to Oscar M. Orbos on July 24, 1990, to wit: With reference to DOTC Memorandum Order No. 90-395 dated 26 June 1990 which the LTFRB received on 19 July 1990, directing the Board "to immediately publicize a fare range scheme for all provincial bus routes in the country (except those operating within Metro Manila)" that will allow operators "to charge passengers within a range of fifteen percent (15%) above and fifteen percent (15%) below the LTFRB official rate for a period of one year" the undersigned is respectfully adverting the Secretary's attention to the following for his consideration: 1. Section 16(c) of the Public Service Act prescribes the following for the fixing and determination of rates (a) the rates to be approved should be proposed by public service operators; (b) there should be a publication and notice to concerned or affected parties in the territory affected; (c) a public hearing should be held for the fixing of the rates; hence, implementation of the proposed fare range scheme on August 6 without complying with the requirements of the Public Service Act may not be legally feasible. 2. To allow bus operators in the country to charge fares fifteen (15%) above the present LTFRB fares in the wake of the devastation, death and suffering caused by the July 16 earthquake will not be socially warranted and will be politically unsound; most likely public criticism against the DOTC and the LTFRB will be triggered by the untimely motu propio implementation of the proposal by the mere expedient of publicizing the fare range scheme without calling a public hearing, which scheme many as early as during the Secretary's predecessor know through newspaper reports and columnists' comments to be Asian Development Bank and World Bank inspired. 3. More than inducing a reduction in bus fares by fifteen percent (15%) the implementation of the proposal will instead trigger an upward adjustment in bus fares by fifteen percent (15%) at a time when hundreds of thousands of people in Central and Northern Luzon, particularly in Central Pangasinan, La Union, Baguio City, Nueva Ecija, and the Cagayan Valley are suffering from the devastation and havoc caused by the recent earthquake. 4. In lieu of the said proposal, the DOTC with its agencies involved in public transportation can consider measures and reforms in the industry that will be socially uplifting, especially for the people in the areas devastated by the recent earthquake. In view of the foregoing considerations, the undersigned respectfully suggests that the implementation of the proposed fare range scheme this year be further studied and evaluated. On December 5, 1990, private respondent Provincial Bus Operators Association of the Philippines, Inc. (PBOAP) filed an application for fare rate increase. An across-the-board increase of eight and a half centavos (P0.085) per kilometer for all types of provincial buses with a minimum-maximum fare range of fifteen (15%) percent over and below the proposed basic per kilometer fare rate, with the said
minimum-maximum fare range applying only to ordinary, first class and premium class buses and a fiftycentavo (P0.50) minimum per kilometer fare for aircon buses, was sought. On December 6, 1990, private respondent PBOAP reduced its applied proposed fare to an across-theboard increase of six and a half (P0.065) centavos per kilometer for ordinary buses. The decrease was due to the drop in the expected price of diesel. The application was opposed by the Philippine Consumers Foundation, Inc. and Perla C. Bautista alleging that the proposed rates were exorbitant and unreasonable and that the application contained no allegation on the rate of return of the proposed increase in rates. On December 14, 1990, public respondent LTFRB rendered a decision granting the fare rate increase in accordance with the following schedule of fares on a straight computation method, viz: AUTHORIZED FARES LUZON MIN. OF 5 KMS. SUCCEEDING KM. REGULAR P1.50 P0.37 STUDENT P1.15 P0.28 VISAYAS/MINDANAO REGULAR P1.60 P0.375 STUDENT P1.20 P0.285 FIRST CLASS (PER KM.) LUZON P0.385 VISAYAS/ MINDANAO P0.395 PREMIERE CLASS (PER KM.) LUZON P0.395 VISAYAS/ MINDANAO P0.405 AIRCON (PER KM.) P0.415. 4 On March 30, 1992, then Secretary of the Department of Transportation and Communications Pete Nicomedes Prado issued Department Order No. 92-587 defining the policy framework on the regulation of transport services. The full text of the said order is reproduced below in view of the importance of the provisions contained therein: WHEREAS, Executive Order No. 125 as amended, designates the Department of Transportation and Communications (DOTC) as the primary policy, planning, regulating and implementing agency on transportation;
WHEREAS, to achieve the objective of a viable, efficient, and dependable transportation system, the transportation regulatory agencies under or attached to the DOTC have to harmonize their decisions and adopt a common philosophy and direction; WHEREAS, the government proposes to build on the successful liberalization measures pursued over the last five years and bring the transport sector nearer to a balanced longer term regulatory framework; NOW, THEREFORE, pursuant to the powers granted by laws to the DOTC, the following policies and principles in the economic regulation of land, air, and water transportation services are hereby adopted: 1. Entry into and exit out of the industry. Following the Constitutional dictum against monopoly, no franchise holder shall be permitted to maintain a monopoly on any route. A minimum of two franchise holders shall be permitted to operate on any route. The requirements to grant a certificate to operate, or certificate of public convenience, shall be: proof of Filipino citizenship, financial capability, public need, and sufficient insurance cover to protect the riding public. In determining public need, the presumption of need for a service shall be deemed in favor of the applicant. The burden of proving that there is no need for a proposed service shall be with the oppositor(s). In the interest of providing efficient public transport services, the use of the "prior operator" and the "priority of filing" rules shall be discontinued. The route measured capacity test or other similar tests of demand for vehicle/vessel fleet on any route shall be used only as a guide in weighing the merits of each franchise application and not as a limit to the services offered. Where there are limitations in facilities, such as congested road space in urban areas, or at airports and ports, the use of demand management measures in conformity with market principles may be considered. The right of an operator to leave the industry is recognized as a business decision, subject only to the filing of appropriate notice and following a phase-out period, to inform the public and to minimize disruption of services. 2. Rate and Fare Setting. Freight rates shall be freed gradually from government controls.Passenger fares shall also be deregulated, except for the lowest class of passenger service (normally third class passenger transport) for which the government will fix indicative or reference fares. Operators of particular services may fix their own fares within a range 15% above and below the indicative or reference rate. Where there is lack of effective competition for services, or on specific routes, or for the transport of particular commodities, maximum mandatory freight rates or passenger fares shall be set temporarily by the government pending actions to increase the level of competition.
For unserved or single operator routes, the government shall contract such services in the most advantageous terms to the public and the government, following public bids for the services. The advisability of bidding out the services or using other kinds of incentives on such routes shall be studied by the government. 3. Special Incentives and Financing for Fleet Acquisition. As a matter of policy, the government shall not engage in special financing and incentive programs, including direct subsidies for fleet acquisition and expansion. Only when the market situation warrants government intervention shall programs of this type be considered. Existing programs shall be phased out gradually. The Land Transportation Franchising and Regulatory Board, the Civil Aeronautics Board, the Maritime Industry Authority are hereby directed to submit to the Office of the Secretary, within forty-five (45) days of this Order, the detailed rules and procedures for the Implementation of the policies herein set forth. In the formulation of such rules, the concerned agencies shall be guided by the most recent studies on the subjects, such as the Provincial Road Passenger Transport Study, the Civil Aviation Master Plan, the Presidential Task Force on the Inter-island Shipping Industry, and the Inter-island Liner Shipping Rate Rationalization Study. For the compliance of all concerned. (Emphasis ours) On October 8, 1992, public respondent Secretary of the Department of Transportation and Communications Jesus B. Garcia, Jr. issued a memorandum to the Acting Chairman of the LTFRB suggesting swift action on the adoption of rules and procedures to implement above-quoted Department Order No. 92-587 that laid down deregulation and other liberalization policies for the transport sector. Attached to the said memorandum was a revised draft of the required rules and procedures covering (i) Entry Into and Exit Out of the Industry and (ii) Rate and Fare Setting, with comments and suggestions from the World Bank incorporated therein. Likewise, resplendent from the said memorandum is the statement of the DOTC Secretary that the adoption of the rules and procedures is a pre-requisite to the approval of the Economic Integration Loan from the World Bank. 5 On February 17, 1993, the LTFRB issued Memorandum Circular No. 92-009 promulgating the guidelines for the implementation of DOTC Department Order No. 92-587. The Circular provides, among others, the following challenged portions: xxx xxx xxx IV. Policy Guidelines on the Issuance of Certificate of Public Convenience. The issuance of a Certificate of Public Convenience is determined by public need. The presumption of public need for a service shall be deemed in favor of the applicant, while burden of proving that there is no need for the proposed service shall be the oppositor'(s). xxx xxx xxx V. Rate and Fare Setting
The control in pricing shall be liberalized to introduce price competition complementary with the quality of service, subject to prior notice and public hearing. Fares shall not be provisionally authorized without public hearing. A. On the General Structure of Rates 1. The existing authorized fare range system of plus or minus 15 per cent for provincial buses and jeepneys shall be widened to 20% and -25% limit in 1994 with the authorized fare to be replaced by an indicative or reference rate as the basis for the expanded fare range. 2. Fare systems for aircon buses are liberalized to cover first class and premier services. xxx xxx xxx (Emphasis ours). Sometime in March, 1994, private respondent PBOAP, availing itself of the deregulation policy of the DOTC allowing provincial bus operators to collect plus 20% and minus 25% of the prescribed fare without first having filed a petition for the purpose and without the benefit of a public hearing, announced a fare increase of twenty (20%) percent of the existing fares. Said increased fares were to be made effective on March 16, 1994. On March 16, 1994, petitioner KMU filed a petition before the LTFRB opposing the upward adjustment of bus fares. On March 24, 1994, the LTFRB issued one of the assailed orders dismissing the petition for lack of merit. The dispositive portion reads: PREMISES CONSIDERED, this Board after considering the arguments of the parties, hereby DISMISSES FOR LACK OF MERIT the petition filed in the above-entitled case. This petition in this case was resolved with dispatch at the request of petitioner to enable it to immediately avail of the legal remedies or options it is entitled under existing laws. SO ORDERED. 6 Hence, the instant petition for certiorari with an urgent prayer for issuance of a temporary restraining order. The Court, on June 20, 1994, issued a temporary restraining order enjoining, prohibiting and preventing respondents from implementing the bus fare rate increase as well as the questioned orders and memorandum circulars. This meant that provincial bus fares were rolled back to the levels duly authorized by the LTFRB prior to March 16, 1994. A moratorium was likewise enforced on the issuance of franchises for the operation of buses, jeepneys, and taxicabs. Petitioner KMU anchors its claim on two (2) grounds. First, the authority given by respondent LTFRB to provincial bus operators to set a fare range of plus or minus fifteen (15%) percent, later increased to
plus twenty (20%) and minus twenty-five (-25%) percent, over and above the existing authorized fare without having to file a petition for the purpose, is unconstitutional, invalid and illegal. Second, the establishment of a presumption of public need in favor of an applicant for a proposed transport service without having to prove public necessity, is illegal for being violative of the Public Service Act and the Rules of Court. In its Comment, private respondent PBOAP, while not actually touching upon the issues raised by the petitioner, questions the wisdom and the manner by which the instant petition was filed. It asserts that the petitioner has no legal standing to sue or has no real interest in the case at bench and in obtaining the reliefs prayed for. In their Comment filed by the Office of the Solicitor General, public respondents DOTC Secretary Jesus B. Garcia, Jr. and the LTFRB asseverate that the petitioner does not have the standing to maintain the instant suit. They further claim that it is within DOTC and LTFRB's authority to set a fare range scheme and establish a presumption of public need in applications for certificates of public convenience. We find the instant petition impressed with merit. At the outset, the threshold issue of locus standi must be struck. Petitioner KMU has the standing to sue. The requirement of locus standi inheres from the definition of judicial power. Section 1 of Article VIII of the Constitution provides: xxx xxx xxx Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. In Lamb v. Phipps, 7 we ruled that judicial power is the power to hear and decide causes pending between parties who have the right to sue in the courts of law and equity. Corollary to this provision is the principle oflocus standi of a party litigant. One who is directly affected by and whose interest is immediate and substantial in the controversy has the standing to sue. The rule therefore requires that a party must show a personal stake in the outcome of the case or an injury to himself that can be redressed by a favorable decision so as to warrant an invocation of the court's jurisdiction and to justify the exercise of the court's remedial powers in his behalf. 8 In the case at bench, petitioner, whose members had suffered and continue to suffer grave and irreparable injury and damage from the implementation of the questioned memoranda, circulars and/or orders, has shown that it has a clear legal right that was violated and continues to be violated with the enforcement of the challenged memoranda, circulars and/or orders. KMU members, who avail of the use of buses, trains and jeepneys everyday, are directly affected by the burdensome cost of arbitrary increase in passenger fares. They are part of the millions of commuters who comprise the riding public. Certainly, their rights must be protected, not neglected nor ignored.
Assuming arguendo that petitioner is not possessed of the standing to sue, this court is ready to brush aside this barren procedural infirmity and recognize the legal standing of the petitioner in view of the transcendental importance of the issues raised. And this act of liberality is not without judicial precedent. As early as theEmergency Powers Cases, this Court had exercised its discretion and waived the requirement of proper party. In the recent case of Kilosbayan, Inc., et al. v. Teofisto Guingona, Jr., et al., 9 we ruled in the same lines and enumerated some of the cases where the same policy was adopted, viz: . . . A party's standing before this Court is a procedural technicality which it may, in the exercise of its discretion, set aside in view of the importance of the issues raised. In the landmark Emergency Powers Cases, [G.R. No. L-2044 (Araneta v. Dinglasan); G.R. No. L-2756 (Araneta v. Angeles); G.R. No. L-3054 (Rodriguez v. Tesorero de Filipinas); G.R. No. L-3055 (Guerrero v. Commissioner of Customs); and G.R. No. L-3056 (Barredo v. Commission on Elections), 84 Phil. 368 (1949)], this Court brushed aside this technicality because "the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure. (Avelino vs. Cuenco, G.R. No. L-2621)." Insofar as taxpayers' suits are concerned, this Court had declared that it "is not devoid of discretion as to whether or not it should be entertained," (Tan v. Macapagal, 43 SCRA 677, 680 [1972]) or that it "enjoys an open discretion to entertain the same or not." [Sanidad v. COMELEC, 73 SCRA 333 (1976)]. xxx xxx xxx In line with the liberal policy of this Court on locus standi, ordinary taxpayers, members of Congress, and even association of planters, and non-profit civic organizations were allowed to initiate and prosecute actions before this court to question the constitutionality or validity of laws, acts, decisions, rulings, or orders of various government agencies or instrumentalities. Among such cases were those assailing the constitutionality of (a) R.A. No. 3836 insofar as it allows retirement gratuity and commutation of vacation and sick leave to Senators and Representatives and to elective officials of both Houses of Congress (Philippine Constitution Association, Inc. v. Gimenez, 15 SCRA 479 [1965]); (b) Executive Order No. 284, issued by President Corazon C. Aquino on 25 July 1987, which allowed members of the cabinet, their undersecretaries, and assistant secretaries to hold other government offices or positions (Civil Liberties Union v. Executive Secretary, 194 SCRA 317 [1991]); (c) the automatic appropriation for debt service in the General Appropriations Act (Guingona v. Carague, 196 SCRA 221 [1991]; (d) R.A. No. 7056 on the holding of desynchronized elections (Osmea v. Commission on Elections, 199 SCRA 750 [1991]); (e) P.D. No. 1869 (the charter of the Philippine Amusement and Gaming Corporation) on the ground that it is contrary to morals, public policy, and order (Basco v. Philippine Amusement and Gaming Corp., 197 SCRA 52 [1991]); and (f) R.A. No. 6975, establishing the Philippine National Police. (Carpio v. Executive Secretary, 206 SCRA 290 [1992]). Other cases where we have followed a liberal policy regarding locus standi include those attacking the validity or legality of (a) an order allowing the importation of rice in the light of the prohibition imposed by R.A. No. 3452 (Iloilo Palay and Corn Planters Association, Inc. v. Feliciano, 13 SCRA 377 [1965]; (b)
P.D. Nos. 991 and 1033 insofar as they proposed amendments to the Constitution and P.D. No. 1031 insofar as it directed the COMELEC to supervise, control, hold, and conduct the referendum-plebiscite on 16 October 1976 (Sanidad v. Commission on Elections, supra); (c) the bidding for the sale of the 3,179 square meters of land at Roppongi, Minato-ku, Tokyo, Japan (Laurel v. Garcia, 187 SCRA 797 [1990]); (d) the approval without hearing by the Board of Investments of the amended application of the Bataan Petrochemical Corporation to transfer the site of its plant from Bataan to Batangas and the validity of such transfer and the shift of feedstock from naphtha only to naphtha and/or liquefied petroleum gas (Garcia v. Board of Investments, 177 SCRA 374 [1989]; Garcia v. Board of Investments, 191 SCRA 288 [1990]); (e) the decisions, orders, rulings, and resolutions of the Executive Secretary, Secretary of Finance, Commissioner of Internal Revenue, Commissioner of Customs, and the Fiscal Incentives Review Board exempting the National Power Corporation from indirect tax and duties (Maceda v. Macaraig, 197 SCRA 771 [1991]); (f) the orders of the Energy Regulatory Board of 5 and 6 December 1990 on the ground that the hearings conducted on the second provisional increase in oil prices did not allow the petitioner substantial cross-examination; (Maceda v. Energy Regulatory Board, 199 SCRA 454 [1991]); (g) Executive Order No. 478 which levied a special duty of P0.95 per liter of imported oil products (Garcia v. Executive Secretary, 211 SCRA 219 [1992]); (h) resolutions of the Commission on Elections concerning the apportionment, by district, of the number of elective members of Sanggunians (De Guia vs. Commission on Elections, 208 SCRA 420 [1992]); and (i) memorandum orders issued by a Mayor affecting the Chief of Police of Pasay City (Pasay Law and Conscience Union, Inc. v. Cuneta, 101 SCRA 662 [1980]). In the 1975 case of Aquino v. Commission on Elections (62 SCRA 275 [1975]), this Court, despite its unequivocal ruling that the petitioners therein had no personality to file the petition, resolved nevertheless to pass upon the issues raised because of the far-reaching implications of the petition. We did no less in De Guia v. COMELEC (Supra) where, although we declared that De Guia "does not appear to have locus standi, a standing in law, a personal or substantial interest," we brushed aside the procedural infirmity "considering the importance of the issue involved, concerning as it does the political exercise of qualified voters affected by the apportionment, and petitioner alleging abuse of discretion and violation of the Constitution by respondent." Now on the merits of the case. On the fare range scheme. Section 16(c) of the Public Service Act, as amended, reads: Sec. 16. Proceedings of the Commission, upon notice and hearing. The Commission shall have power, upon proper notice and hearing in accordance with the rules and provisions of this Act, subject to the limitations and exceptions mentioned and saving provisions to the contrary: xxx xxx xxx (c) To fix and determine individual or joint rates, tolls, charges, classifications, or schedules thereof, as well as commutation, mileage kilometrage, and other special rates which shall be imposed, observed,
and followed thereafter by any public service: Provided, That the Commission may, in its discretion, approve rates proposed by public services provisionally and without necessity of any hearing; but it shall call a hearing thereon within thirty days thereafter, upon publication and notice to the concerns operating in the territory affected: Provided, further, That in case the public service equipment of an operator is used principally or secondarily for the promotion of a private business, the net profits of said private business shall be considered in relation with the public service of such operator for the purpose of fixing the rates. (Emphasis ours). xxx xxx xxx Under the foregoing provision, the Legislature delegated to the defunct Public Service Commission the power of fixing the rates of public services. Respondent LTFRB, the existing regulatory body today, is likewise vested with the same under Executive Order No. 202 dated June 19, 1987. Section 5(c) of the said executive order authorizes LTFRB "to determine, prescribe, approve and periodically review and adjust, reasonable fares, rates and other related charges, relative to the operation of public land transportation services provided by motorized vehicles." Such delegation of legislative power to an administrative agency is permitted in order to adapt to the increasing complexity of modern life. As subjects for governmental regulation multiply, so does the difficulty of administering the laws. Hence, specialization even in legislation has become necessary. Given the task of determining sensitive and delicate matters as route-fixing and rate-making for the transport sector, the responsible regulatory body is entrusted with the power of subordinate legislation. With this authority, an administrative body and in this case, the LTFRB, may implement broad policies laid down in a statute by "filling in" the details which the Legislature may neither have time or competence to provide. However, nowhere under the aforesaid provisions of law are the regulatory bodies, the PSC and LTFRB alike, authorized to delegate that power to a common carrier, a transport operator, or other public service. In the case at bench, the authority given by the LTFRB to the provincial bus operators to set a fare range over and above the authorized existing fare, is illegal and invalid as it is tantamount to an undue delegation of legislative authority. Potestas delegata non delegari potest. What has been delegated cannot be delegated. This doctrine is based on the ethical principle that such a delegated power constitutes not only a right but a duty to be performed by the delegate through the instrumentality of his own judgment and not through the intervening mind of another. 10 A further delegation of such power would indeed constitute a negation of the duty in violation of the trust reposed in the delegate mandated to discharge it directly. 11 The policy of allowing the provincial bus operators to change and increase their fares at will would result not only to a chaotic situation but to an anarchic state of affairs. This would leave the riding public at the mercy of transport operators who may increase fares every hour, every day, every month or every year, whenever it pleases them or whenever they deem it "necessary" to do so. In Panay Autobus Co. v. Philippine Railway Co., 12 where respondent Philippine Railway Co. was granted by the Public Service Commission the authority to change its freight rates at will, this Court categorically declared that:
In our opinion, the Public Service Commission was not authorized by law to delegate to the Philippine Railway Co. the power of altering its freight rates whenever it should find it necessary to do so in order to meet the competition of road trucks and autobuses, or to change its freight rates at will, or to regard its present rates as maximum rates, and to fix lower rates whenever in the opinion of the Philippine Railway Co. it would be to its advantage to do so. The mere recital of the language of the application of the Philippine Railway Co. is enough to show that it is untenable. The Legislature has delegated to the Public Service Commission the power of fixing the rates of public services, but it has not authorized the Public Service Commission to delegate that power to a common carrier or other public service. The rates of public services like the Philippine Railway Co. have been approved or fixed by the Public Service Commission, and any change in such rates must be authorized or approved by the Public Service Commission after they have been shown to be just and reasonable. The public service may, of course, propose new rates, as the Philippine Railway Co. did in case No. 31827, but it cannot lawfully make said new rates effective without the approval of the Public Service Commission, and the Public Service Commission itself cannot authorize a public service to enforce new rates without the prior approval of said rates by the commission. The commission must approve new rates when they are submitted to it, if the evidence shows them to be just and reasonable, otherwise it must disapprove them. Clearly, the commission cannot determine in advance whether or not the new rates of the Philippine Railway Co. will be just and reasonable, because it does not know what those rates will be. In the present case the Philippine Railway Co. in effect asked for permission to change its freight rates at will. It may change them every day or every hour, whenever it deems it necessary to do so in order to meet competition or whenever in its opinion it would be to its advantage. Such a procedure would create a most unsatisfactory state of affairs and largely defeat the purposes of the public service law. 13 (Emphasis ours). One veritable consequence of the deregulation of transport fares is a compounded fare. If transport operators will be authorized to impose and collect an additional amount equivalent to 20% over and above the authorized fare over a period of time, this will unduly prejudice a commuter who will be made to pay a fare that has been computed in a manner similar to those of compounded bank interest rates. Picture this situation. On December 14, 1990, the LTFRB authorized provincial bus operators to collect a thirty-seven (P0.37) centavo per kilometer fare for ordinary buses. At the same time, they were allowed to impose and collect a fare range of plus or minus 15% over the authorized rate. Thus P0.37 centavo per kilometer authorized fare plus P0.05 centavos (which is 15% of P0.37 centavos) is equivalent to P0.42 centavos, the allowed rate in 1990. Supposing the LTFRB grants another five (P0.05) centavo increase per kilometer in 1994, then, the base or reference for computation would have to be P0.47 centavos (which is P0.42 + P0.05 centavos). If bus operators will exercise their authority to impose an additional 20% over and above the authorized fare, then the fare to be collected shall amount to P0.56 (that is, P0.47 authorized LTFRB rate plus 20% of P0.47 which is P0.29). In effect, commuters will be continuously subjected, not only to a double fare adjustment but to a compounding fare as well. On their part, transport operators shall enjoy a bigger chunk of the pie. Aside from fare increase applied for,
they can still collect an additional amount by virtue of the authorized fare range. Mathematically, the situation translates into the following: Year** LTFRB authorized Fare Range Fare to be rate*** collected per kilometer 1990 P0.37 15% (P0.05) P0.42 1994 P0.42 + 0.05 = 0.47 20% (P0.09) P0.56 1998 P0.56 + 0.05 = 0.61 20% (P0.12) P0.73 2002 P0.73 + 0.05 = 0.78 20% (P0.16) P0.94 Moreover, rate making or rate fixing is not an easy task. It is a delicate and sensitive government function that requires dexterity of judgment and sound discretion with the settled goal of arriving at a just and reasonable rate acceptable to both the public utility and the public. Several factors, in fact, have to be taken into consideration before a balance could be achieved. A rate should not be confiscatory as would place an operator in a situation where he will continue to operate at a loss. Hence, the rate should enable public utilities to generate revenues sufficient to cover operational costs and provide reasonable return on the investments. On the other hand, a rate which is too high becomes discriminatory. It is contrary to public interest. A rate, therefore, must be reasonable and fair and must be affordable to the end user who will utilize the services. Given the complexity of the nature of the function of rate-fixing and its far-reaching effects on millions of commuters, government must not relinquish this important function in favor of those who would benefit and profit from the industry. Neither should the requisite notice and hearing be done away with. The people, represented by reputable oppositors, deserve to be given full opportunity to be heard in their opposition to any fare increase. The present administrative procedure, 14 to our mind, already mirrors an orderly and satisfactory arrangement for all parties involved. To do away with such a procedure and allow just one party, an interested party at that, to determine what the rate should be, will undermine the right of the other parties to due process. The purpose of a hearing is precisely to determine what a just and reasonable rate is. 15 Discarding such procedural and constitutional right is certainly inimical to our fundamental law and to public interest. On the presumption of public need. A certificate of public convenience (CPC) is an authorization granted by the LTFRB for the operation of land transportation services for public use as required by law. Pursuant to Section 16(a) of the Public Service Act, as amended, the following requirements must be met before a CPC may be granted, to wit: (i) the applicant must be a citizen of the Philippines, or a corporation or co-partnership, association or joint-stock company constituted and organized under the laws of the Philippines, at least 60 per centum of its stock or paid-up capital must belong entirely to citizens of the Philippines; (ii) the applicant must be financially capable of undertaking the proposed service and meeting the responsibilities
incident to its operation; and (iii) the applicant must prove that the operation of the public service proposed and the authorization to do business will promote the public interest in a proper and suitable manner. It is understood that there must be proper notice and hearing before the PSC can exercise its power to issue a CPC. While adopting in toto the foregoing requisites for the issuance of a CPC, LTFRB Memorandum Circular No. 92-009, Part IV, provides for yet incongruous and contradictory policy guideline on the issuance of a CPC. The guidelines states: The issuance of a Certificate of Public Convenience is determined by public need. The presumption of public need for a service shall be deemed in favor of the applicant, while the burden of proving that there is no need for the proposed service shall be the oppositor's. (Emphasis ours). The above-quoted provision is entirely incompatible and inconsistent with Section 16(c)(iii) of the Public Service Act which requires that before a CPC will be issued, the applicant must prove by proper notice and hearing that the operation of the public service proposed will promote public interest in a proper and suitable manner. On the contrary, the policy guideline states that the presumption of public need for a public service shall be deemed in favor of the applicant. In case of conflict between a statute and an administrative order, the former must prevail. By its terms, public convenience or necessity generally means something fitting or suited to the public need. 16 As one of the basic requirements for the grant of a CPC, public convenience and necessity exists when the proposed facility or service meets a reasonable want of the public and supply a need which the existing facilities do not adequately supply. The existence or non-existence of public convenience and necessity is therefore a question of fact that must be established by evidence, real and/or testimonial; empirical data; statistics and such other means necessary, in a public hearing conducted for that purpose. The object and purpose of such procedure, among other things, is to look out for, and protect, the interests of both the public and the existing transport operators. Verily, the power of a regulatory body to issue a CPC is founded on the condition that after full-dress hearing and investigation, it shall find, as a fact, that the proposed operation is for the convenience of the public. 17 Basic convenience is the primary consideration for which a CPC is issued, and that fact alone must be consistently borne in mind. Also, existing operators in subject routes must be given an opportunity to offer proof and oppose the application. Therefore, an applicant must, at all times, be required to prove his capacity and capability to furnish the service which he has undertaken to render. 18 And all this will be possible only if a public hearing were conducted for that purpose. Otherwise stated, the establishment of public need in favor of an applicant reverses well-settled and institutionalized judicial, quasi-judicial and administrative procedures. It allows the party who initiates the proceedings to prove, by mere application, his affirmative allegations. Moreover, the offending provisions of the LTFRB memorandum circular in question would in effect amend the Rules of Court by adding another disputable presumption in the enumeration of 37 presumptions under Rule 131, Section
5 of the Rules of Court. Such usurpation of this Court's authority cannot be countenanced as only this Court is mandated by law to promulgate rules concerning pleading, practice and procedure. 19 Deregulation, while it may be ideal in certain situations, may not be ideal at all in our country given the present circumstances. Advocacy of liberalized franchising and regulatory process is tantamount to an abdication by the government of its inherent right to exercise police power, that is, the right of government to regulate public utilities for protection of the public and the utilities themselves. While we recognize the authority of the DOTC and the LTFRB to issue administrative orders to regulate the transport sector, we find that they committed grave abuse of discretion in issuing DOTC Department Order No. 92-587 defining the policy framework on the regulation of transport services and LTFRB Memorandum Circular No. 92-009 promulgating the implementing guidelines on DOTC Department Order No. 92-587, the said administrative issuances being amendatory and violative of the Public Service Act and the Rules of Court. Consequently, we rule that the twenty (20%) per centum fare increase imposed by respondent PBOAP on March 16, 1994 without the benefit of a petition and a public hearing is null and void and of no force and effect. No grave abuse of discretion however was committed in the issuance of DOTC Memorandum Order No. 90-395 and DOTC Memorandum dated October 8, 1992, the same being merely internal communications between administrative officers. WHEREFORE, in view of the foregoing, the instant petition is hereby GRANTED and the challenged administrative issuances and orders, namely: DOTC Department Order No. 92-587, LTFRB Memorandum Circular No. 92-009, and the order dated March 24, 1994 issued by respondent LTFRB are hereby DECLARED contrary to law and invalid insofar as they affect provisions therein (a) delegating to provincial bus and jeepney operators the authority to increase or decrease the duly prescribed transportation fares; and (b) creating a presumption of public need for a service in favor of the applicant for a certificate of public convenience and placing the burden of proving that there is no need for the proposed service to the oppositor. The Temporary Restraining Order issued on June 20, 1994 is hereby MADE PERMANENT insofar as it enjoined the bus fare rate increase granted under the provisions of the aforementioned administrative circulars, memoranda and/or orders declared invalid. No pronouncement as to costs. SO ORDERED. Padilla, Davide, Jr., Bellosillo and Quiason, JJ., concur.
#Footnotes 1 Pantranco v. Public Service Commission, 70 Phil. 221.
2 The 20th century ushered in the birth and growth of public utility regulation in the country. After the Americans introduced public utility regulation at the turn of the century, various regulatory bodies were created. They were the Coastwise Rate Commission under Act No. 520 passed by the Philippine Commission on November 17, 1902; the Board of Rate Regulation under Act No. 1779 dated October 12, 1907; the Board of Public Utility Commission under Act No. 2307 dated December 19, 1913; and the Public Utility Commission under Act No. 3108 dated March 19, 1923. During the Commonwealth period, the National Assembly passed a more comprehensive public utility law. This was Commonwealth Act No. 146, as amended or the Public Service Act, as amended. Said law created a regulatory and franchising body known as the Public Service Commission (PSC). The Commission (PSC) existed for thirty-six (36) years from 1936 up to 1972. On September 24, 1972, Presidential Decree No. 1 was issued and declared "part of the law of the land." The same effected a major revamp of the executive department. Under Article III, Part X of P.D. No. 1, the Public Service Commission (PSC) was abolished and replaced by three (3) specialized regulatory boards. These were the Board of Transportation, the Board of Communications, and the Board of Power and Waterworks. The Board of Transportation (BOT) lasted for thirteen (13) years. On March 20, 1985, Executive Order No. 1011 was issued abolishing the Board of Transportation and the Bureau of Land Transportation. Their powers and functions were merged into the Land Transportation Commission (LTC). Two (2) years later, LTC was abolished by Executive Order Nos. 125 dated January 30, 1987 and 125-A dated April 13, 1987 which reorganized the Department of Transportation and Communications. On June 19, 1987, the Land Transportation Franchising and Regulatory Board (LTFRB) was created by Executive Order No. 202. The LTFRB, successor of LTC, is the existing franchising and regulatory body for overland transportation today. 3 Sec. 1, Rule 131, Rules of Court. 4 Decision of LTFRB in Case No. 90-4794, p. 4; Rollo, p. 59. 5 Rollo, p. 42. 6 Order of LTFRB, p. 4; Rollo, p. 55. 7 22 Phil. 456 [1912]. 8 Warth v. Seldin, 422 U.S. 490, 498-499, 45 L. Ed. 2d 343, 95 S. Ct. 2197 [1975]; Guzman v. Marrero, 180 U.S. 81, 45 L. Ed. 436, 21 S.Ct. 293 [1901]; McMicken v. United States, 97 U.S. 204, 24 L. Ed. 947 [1978]; Silver Star Citizens' Committee v. Orlando Fla. 194 So. 2d 681 [1967]; In Re Kenison's Guardianship, 72 S.D. 180, 31 N.W. 2d 326 [1948]. 9 G.R. No. 113375, May 5, 1994. 10 United States v. Barrias, 11 Phil. 327, 330 [1908]; People v. Vera, 65 Phil. 56, 113 [1937].
11 Cruz, Philippine Political Law, 1991 Edition, p. 84. 12 57 Phil. 872 [1933]. 13 Id., at pp. 878-879. ** Assume a four-year interval in fare adjustment as a constant. *** Assume further a constant P0.05 centavo increase in fare every four (4) years. 14 Steps in the Filing of Petition for Rate Increase: A Petition For Adjustment of Rate (either for increase or reduction) may be filed only by a grantee of a CPC. Therefore, when franchise/CPC grantees or existing public utility operators foresee that the new oil price increase, wage hikes or similar factors would threaten the survival and viability of their operations, they may then institute a petition for increase of rates. Thus in the case of public utilities engaged in transportation, telecommunications, energy supply (electricity) and others, the following steps are usually undertaken in seeking, particularly upwards adjustments of rates: 1. Filing of formal Petition for Rate Increase. This petition alleges therein among others, the present schedule of rates, the reasons why the same is no longer economically viable and the revised schedule of rates it proposes to charge. Attached to said Petition for financial statements, projections/studies showing possible losses from oil price or wage hikes under the old or existing rates and possible margin of profit (which should be within the 12% allowable limit) under the new or revised rates; 2. After the petition is docketed, a date is set for hearing for which Notice of Hearing is issued, the same to be published in a newspaper of general circulation in the area; 3. The parties affected by the application are required to be furnished copies of the petition and the Notice of Hearing usually by registered mail with return card. The Solicitor General is also separately notified since he is the counsel for the Government; 4. The Technical Staff of the regulatory body concerned evaluates the documentary evidence attached to the petition to determine whether there is warrant to the request for rate revision; 5. Then the Commission on Audit (COA) is requested by the regulatory body to conduct an audit and examination of the books of accounts and other pertinent financial records of the public utility operator seeking the rate revision; if the applicants/petitioners are numerous, a representative number for examination purposes would do, and the period of operation covered usually ranges from six (6) months to one (1) year; COA audit report is compared with that of the regulatory body. Copies of these audit reports are furnished the petitioners and oppositors may submit their exceptions or objections thereto.
6. Then hearings are conducted. The petitioners may present accountants or such rate experts to explain their plea for rate revision. Oppositors are also allowed to rebut such evidence-in-chief with their own witnesses and documents. After the hearings, the corresponding resolution is issued. To obviate protracted hearings, the parties may agree to submit their respective Position Papers in lieu of oral testimonies. 15 Ynchausti Steamship Co. v. Public Utility Commissioner, 42 Phil. 621, 631 [1922]. 16 Black's Law Dictionary, 5th Edition, p. 1105. 17 Batangas Transportation Co. v. Orlanes, 52 Phil. 455 [1928]. 18 Manila Electric Co. v. Pasay Transportation Co., 57 Phil. 825 [1933]; Please see also Raymundo Transportation v. Perez, 56 Phil. 274 [1931]; Pampanga Bus Co. v. Enriquez, 38 O.G. 374; Dela Rosa v. Corpus, 38 O.G. 2069. 19 Article VIII, Section 6, 1987 Constitution.
EN BANC
[G.R. No. 141284. August 15, 2000]
INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. HON. RONALDO B. ZAMORA, GEN. PANFILO M. LACSON, GEN. EDGAR B. AGLIPAY, and GEN. ANGELO REYES, respondents. DECISION
KAPUNAN, J .:
At bar is a special civil action for certiorari and prohibition with prayer for issuance of a temporary restraining order seeking to nullify on constitutional grounds the order of President Joseph Ejercito Estrada commanding the deployment of the Philippine Marines (the Marines) to join the Philippine National Police (the PNP) in visibility patrols around the metropolis. In view of the alarming increase in violent crimes in Metro Manila, like robberies, kidnappings and carnappings, the President, in a verbal directive, ordered the PNP and the Marines to conduct joint visibility patrols for the purpose of crime prevention and suppression. The Secretary of National Defense, the Chief of Staff of the Armed Forces of the Philippines (the AFP), the Chief of the PNP and the Secretary of the Interior and Local Government were tasked to execute and implement the said order. In compliance with the presidential mandate, the PNP Chief, through Police Chief Superintendent Edgar B. Aglipay, formulated Letter of Instruction 02/2000[1] (the LOI) which detailed the manner by which the joint visibility patrols, called Task Force Tulungan, would be conducted. [2] Task Force Tulungan was placed under the leadership of the Police Chief of Metro Manila. Subsequently, the President confirmed his previous directive on the deployment of the Marines in a Memorandum, dated 24 January 2000, addressed to the Chief of Staff of the AFP and the PNP Chief.[3] In the Memorandum, the President expressed his desire to improve the peace and order situation in Metro Manila through a more effective crime prevention program including increased police patrols. [4] The President further stated that to heighten police visibility in the metropolis, augmentation from the AFP is necessary. [5] Invoking his powers as Commander-in-Chief under Section 18, Article VII of the Constitution, the President directed the AFP Chief of Staff and PNP Chief to coordinate with each other for the proper deployment and utilization of the Marines to assist the PNP in preventing or suppressing criminal or lawless violence. [6] Finally, the President declared that the services of the Marines in the anti-crime campaign are merely temporary in nature and for a reasonable period only, until such time when the situation shall have improved. [7] The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols as follows:
xxx 2. PURPOSE: The Joint Implementing Police Visibility Patrols between the PNP NCRPO and the Philippine Marines partnership in the conduct of visibility patrols in Metro Manila for the suppression of crime prevention and other serious threats to national security. 3. SITUATION: Criminal incidents in Metro Manila have been perpetrated not only by ordinary criminals but also by organized syndicates whose members include active and former police/military personnel whose training, skill, discipline and firepower prove well-above the present capability of the local police alone to handle. The deployment of a joint PNP NCRPO-Philippine Marines in the conduct of police visibility patrol in urban areas will reduce the incidence of crimes specially those perpetrated by active or former police/military personnel. 4. MISSION: The PNP NCRPO will organize a provisional Task Force to conduct joint NCRPO-PM visibility patrols to keep Metro Manila streets crime-free, through a sustained street patrolling to minimize or eradicate all forms of high-profile crimes especially those perpetrated by organized crime syndicates whose members include those that are well-trained, disciplined and well-armed active or former PNP/Military personnel. 5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS: a. The visibility patrols shall be conducted jointly by the NCRPO [National Capital Regional Police Office] and the Philippine Marines to curb criminality in Metro Manila and to preserve the internal security of the state against insurgents and other serious threat to national security, although the primary responsibility over Internal Security Operations still rests upon the AFP. b. The principle of integration of efforts shall be applied to eradicate all forms of high-profile crimes perpetrated by organized crime syndicates operating in Metro Manila. This concept requires the military and police to work cohesively and unify efforts to ensure a focused, effective and holistic approach in addressing crime prevention. Along this line, the role of the military and police aside from neutralizing crime syndicates is to bring a wholesome atmosphere wherein delivery of basic services to the people and development is achieved. Hand-in-hand with this joint NCRPO-Philippine Marines visibility patrols, local Police Units are responsible for the maintenance of peace and order in their locality. c. To ensure the effective implementation of this project, a provisional Task Force TULUNGAN shall be organized to provide the mechanism, structure, and procedures for the integrated planning, coordinating, monitoring and assessing the security situation. xxx. [8] The selected areas of deployment under the LOI are: Monumento Circle, North Edsa (SM City), Araneta Shopping Center, Greenhills, SM Megamall, Makati Commercial Center, LRT/MRT Stations and the NAIA and Domestic Airport.[9] On 17 January 2000, the Integrated Bar of the Philippines (the IBP) filed the instant petition to annul LOI 02/2000 and to declare the deployment of the Philippine Marines, null and void and unconstitutional, arguing that:
I
THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS VIOLATIVE OF THE CONSTITUTION, IN THAT: A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD JUSTIFY, EVEN ONLY REMOTELY, THE DEPLOYMENT OF SOLDIERS FOR LAW ENFORCEMENT WORK; HENCE, SAID DEPLOYMENT IS IN DEROGATION OF ARTICLE II, SECTION 3 OF THE CONSTITUTION; B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY THE MILITARY IN A CIVILIAN FUNCTION OF GOVERNMENT (LAW ENFORCEMENT) IN DEROGATION OF ARTICLE XVI, SECTION 5 (4), OF THE CONSTITUTION; C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY ON THE MILITARY TO PERFORM THE CIVILIAN FUNCTIONS OF THE GOVERNMENT.
II
IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE ADMINISTRATION IS UNWITTINGLY MAKING THE MILITARY MORE POWERFUL THAN WHAT IT SHOULD REALLY BE UNDER THE CONSTITUTION. [10] Asserting itself as the official organization of Filipino lawyers tasked with the bounden duty to uphold the rule of law and the Constitution, the IBP questions the validity of the deployment and utilization of the Marines to assist the PNP in law enforcement. Without granting due course to the petition, the Court in a Resolution, [11] dated 25 January 2000, required the Solicitor General to file his Comment on the petition. On 8 February 2000, the Solicitor General submitted his Comment. The Solicitor General vigorously defends the constitutionality of the act of the President in deploying the Marines, contending, among others, that petitioner has no legal standing; that the question of deployment of the Marines is not proper for judicial scrutiny since the same involves a political question; that the organization and conduct of police visibility patrols, which feature the team-up of one police officer and one Philippine Marine soldier, does not violate the civilian supremacy clause in the Constitution. The issues raised in the present petition are: (1) Whether or not petitioner has legal standing; (2) Whether or not the Presidents factual determination of the necessity of calling the armed forces is subject to judicial review; and, (3) Whether or not the calling of the armed forces to assist the PNP in joint visibility patrols violates the constitutional provisions on civilian supremacy over the military and the civilian character of the PNP. The petition has no merit. First, petitioner failed to sufficiently show that it is in possession of the requisites of standing to raise the issues in the petition. Second, the President did not commit grave abuse of discretion amounting to lack or excess of jurisdiction nor did he commit a violation of the civilian supremacy clause of the Constitution. The power of judicial review is set forth in Section 1, Article VIII of the Constitution, to wit: Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
When questions of constitutional significance are raised, the Court can exercise its power of judicial review only if the following requisites are complied with, namely: (1) the existence of an actual and appropriate case; (2) a personal and substantial interest of the party raising the constitutional question; (3) the exercise of judicial review is pleaded at the earliest opportunity; and (4) the constitutional question is the lis mota of the case. [12]
The IBP has not sufficiently complied with the requisites of standing in this case. Legal standing or locus standi has been defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged.[13] The term interest means a material interest, an interest in issue affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest.[14] The gist of the question of standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions. [15] In the case at bar, the IBP primarily anchors its standing on its alleged responsibility to uphold the rule of law and the Constitution. Apart from this declaration, however, the IBP asserts no other basis in support of its locus standi. The mere invocation by the IBP of its duty to preserve the rule of law and nothing more, while undoubtedly true, is not sufficient to clothe it with standing in this case. This is too general an interest which is shared by other groups and the whole citizenry. Based on the standards above-stated, the IBP has failed to present a specific and substantial interest in the resolution of the case. Its fundamental purpose which, under Section 2, Rule 139-A of the Rules of Court, is to elevate the standards of the law profession and to improve the administration of justice is alien to, and cannot be affected by the deployment of the Marines. It should also be noted that the interest of the National President of the IBP who signed the petition, is his alone, absent a formal board resolution authorizing him to file the present action. To be sure, members of the BAR, those in the judiciary included, have varying opinions on the issue. Moreover, the IBP, assuming that it has duly authorized the National President to file the petition, has not shown any specific injury which it has suffered or may suffer by virtue of the questioned governmental act. Indeed, none of its members, whom the IBP purportedly represents, has sustained any form of injury as a result of the operation of the joint visibility patrols. Neither is it alleged that any of its members has been arrested or that their civil liberties have been violated by the deployment of the Marines. What the IBP projects as injurious is the supposed militarization of law enforcement which might threaten Philippine democratic institutions and may cause more harm than good in the long run. Not only is the presumed injury not personal in character, it is likewise too vague, highly speculative and uncertain to satisfy the requirement of standing. Since petitioner has not successfully established a direct and personal injury as a consequence of the questioned act, it does not possess the personality to assail the validity of the deployment of the Marines. This Court, however, does not categorically rule that the IBP has absolutely no standing to raise constitutional issues now or in the future. The IBP must, by way of allegations and proof, satisfy this Court that it has sufficient stake to obtain judicial resolution of the controversy. Having stated the foregoing, it must be emphasized that this Court has the discretion to take cognizance of a suit which does not satisfy the requirement of legal standing when paramount interest is involved. [16] In not a few cases, the Court has adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able to craft an issue of transcendental significance to the people. [17] Thus, when the issues raised are of paramount importance to the public, the Court may brush aside technicalities of procedure. [18] In this case, a reading of the petition shows that the IBP has advanced constitutional issues which deserve the attention of this Court in view of their seriousness, novelty and weight as precedents. Moreover, because peace and order are under constant threat and lawless violence occurs in increasing tempo,
undoubtedly aggravated by the Mindanao insurgency problem, the legal controversy raised in the petition almost certainly will not go away. It will stare us in the face again. It, therefore, behooves the Court to relax the rules on standing and to resolve the issue now, rather than later.
The President did not commit grave abuse of discretion in calling out the Marines.
In the case at bar, the bone of contention concerns the factual determination of the President of the necessity of calling the armed forces, particularly the Marines, to aid the PNP in visibility patrols. In this regard, the IBP admits that the deployment of the military personnel falls under the Commander-in-Chief powers of the President as stated in Section 18, Article VII of the Constitution, specifically, the power to call out the armed forces to prevent or suppress lawless violence, invasion or rebellion. What the IBP questions, however, is the basis for the calling of the Marines under the aforestated provision. According to the IBP, no emergency exists that would justify the need for the calling of the military to assist the police force. It contends that no lawless violence, invasion or rebellion exist to warrant the calling of the Marines. Thus, the IBP prays that this Court review the sufficiency of the factual basis for said troop [Marine] deployment. [19] The Solicitor General, on the other hand, contends that the issue pertaining to the necessity of calling the armed forces is not proper for judicial scrutiny since it involves a political question and the resolution of factual issues which are beyond the review powers of this Court. As framed by the parties, the underlying issues are the scope of presidential powers and limits, and the extent of judicial review. But, while this Court gives considerable weight to the parties formulation of the issues, the resolution of the controversy may warrant a creative approach that goes beyond the narrow confines of the issues raised. Thus, while the parties are in agreement that the power exercised by the President is the power to call out the armed forces, the Court is of the view that the power involved may be no more than the maintenance of peace and order and promotion of the general welfare. [20] For one, the realities on the ground do not show that there exist a state of warfare, widespread civil unrest or anarchy. Secondly, the full brunt of the military is not brought upon the citizenry, a point discussed in the latter part of this decision. In the words of the late Justice Irene Cortes in Marcos v. Manglapus : More particularly, this case calls for the exercise of the Presidents powers as protector of the peace. [Rossiter, The American Presidency ]. The power of the President to keep the peace is not limited merely to exercising the commander-in-chief powers in times of emergency or to leading the State against external and internal threats to its existence. The President is not only clothed with extraordinary powers in times of emergency, but is also tasked with attending to the day-to-day problems of maintaining peace and order and ensuring domestic tranquility in times when no foreign foe appears on the horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties in times of peace is not in any way diminished by the relative want of an emergency specified in the commander-in-chief provision. For in making the President commander-in-chief the enumeration of powers that follow cannot be said to exclude the Presidents exercising as Commander-in-Chief powers short of the calling of the armed forces, or suspending the privilege of the writ of habeas corpus or declaring martial law, in order to keep the peace, and maintain public order and security. xxx[21] Nonetheless, even if it is conceded that the power involved is the Presidents power to call out the armed forces to prevent or suppress lawless violence, invasion or rebellion, the resolution of the controversy will reach a similar result. We now address the Solicitor Generals argument that the issue involved is not susceptible to review by the judiciary because it involves a political question, and thus, not justiciable.
As a general proposition, a controversy is justiciable if it refers to a matter which is appropriate for court review.[22] It pertains to issues which are inherently susceptible of being decided on grounds recognized by law. Nevertheless, the Court does not automatically assume jurisdiction over actual constitutional cases brought before it even in instances that are ripe for resolution. One class of cases wherein the Court hesitates to rule on are political questions. The reason is that political questions are concerned with issues dependent upon the wisdom, not the legality, of a particular act or measure being assailed. Moreover, the political question being a function of the separation of powers, the courts will not normally interfere with the workings of another co-equal branch unless the case shows a clear need for the courts to step in to uphold the law and the Constitution. As Taada v. Cuenco [23] puts it, political questions refer to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of government. Thus, if an issue is clearly identified by the text of the Constitution as matters for discretionary action by a particular branch of government or to the people themselves then it is held to be a political question. In the classic formulation of Justice Brennan in Baker v. Carr , [24] [p]rominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a courts undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarassment from multifarious pronouncements by various departments on the one question. The 1987 Constitution expands the concept of judicial review by providing that (T)he Judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.[25] Under this definition, the Court cannot agree with the Solicitor General that the issue involved is a political question beyond the jurisdiction of this Court to review. When the grant of power is qualified, conditional or subject to limitations, the issue of whether the prescribed qualifications or conditions have been met or the limitations respected, is justiciable - the problem being one of legality or validity, not its wisdom.[26] Moreover, the jurisdiction to delimit constitutional boundaries has been given to this Court.[27] When political questions are involved, the Constitution limits the determination as to whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being questioned.[28] By grave abuse of discretion is meant simply capricious or whimsical exercise of judgment that is patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility.[29] Under this definition, a court is without power to directly decide matters over which full discretionary authority has been delegated. But while this Court has no power to substitute its judgment for that of Congress or of the President, it may look into the question of whether such exercise has been made in grave abuse of discretion.[30] A showing that plenary power is granted either department of government, may not be an obstacle to judicial inquiry, for the improvident exercise or abuse thereof may give rise to justiciable controversy. [31] When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is clear from the intent of the framers and from the text of the Constitution itself. The Court, thus, cannot be called upon to overrule the
Presidents wisdom or substitute its own. However, this does not prevent an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion. In view of the constitutional intent to give the President full discretionary power to determine the necessity of calling out the armed forces, it is incumbent upon the petitioner to show that the Presidents decision is totally bereft of factual basis. The present petition fails to discharge such heavy burden as there is no evidence to support the assertion that there exist no justification for calling out the armed forces. There is, likewise, no evidence to support the proposition that grave abuse was committed because the power to call was exercised in such a manner as to violate the constitutional provision on civilian supremacy over the military. In the performance of this Courts duty of purposeful hesitation[32] before declaring an act of another branch as unconstitutional, only where such grave abuse of discretion is clearly shown shall the Court interfere with the Presidents judgment. To doubt is to sustain. There is a clear textual commitment under the Constitution to bestow on the President full discretionary power to call out the armed forces and to determine the necessity for the exercise of such power. Section 18, Article VII of the Constitution, which embodies the powers of the President as Commander-in-Chief, provides in part: The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus , or place the Philippines or any part thereof under martial law. xxx The full discretionary power of the President to determine the factual basis for the exercise of the calling out power is also implied and further reinforced in the rest of Section 18, Article VII which reads, thus: xxx Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus , the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially
charged within three days, otherwise he shall be released. Under the foregoing provisions, Congress may revoke such proclamation or suspension and the Court may review the sufficiency of the factual basis thereof. However, there is no such equivalent provision dealing with the revocation or review of the Presidents action to call out the armed forces. The distinction places the calling out power in a different category from the power to declare martial law and the power to suspend the privilege of the writ of habeas corpus , otherwise, the framers of the Constitution would have simply lumped together the three powers and provided for their revocation and review without any qualification. Expressio unius est exclusio alterius. Where the terms are expressly limited to certain matters, it may not, by interpretation or construction, be extended to other matters.[33] That the intent of the Constitution is exactly what its letter says, i.e., that the power to call is fully discretionary to the President, is extant in the deliberation of the Constitutional Commission, to wit: FR. BERNAS. It will not make any difference. I may add that there is a graduated power of the President as Commander-in-Chief. First, he can call out such Armed Forces as may be necessary to suppress lawless violence; then he can suspend the privilege of the writ of habeas corpus , then he can impose martial law. This is a graduated sequence. When he judges that it is necessary to impose martial law or suspend the privilege of the writ of habeas corpus , his judgment is subject to review. We are making it subject to review by the Supreme Court and subject to concurrence by the National Assembly. But when he exercises this lesser power of calling on the Armed Forces, when he says it is necessary, it is my opinion that his judgment cannot be reviewed by anybody. xxx FR. BERNAS. Let me just add that when we only have imminent danger, the matter can be handled by the first sentence: The President may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. So we feel that that is sufficient for handling imminent danger. MR. DE LOS REYES. So actually, if a President feels that there is imminent danger, the matter can be handled by the First Sentence: The President....may call out such Armed Forces to prevent or suppress lawless violence, invasion or rebellion. So we feel that that is sufficient for handling imminent danger, of invasion or rebellion, instead of imposing martial law or suspending the writ of habeas corpus , he must necessarily have to call the Armed Forces of the Philippines as their Commander-in-Chief. Is that the idea? MR. REGALADO. That does not require any concurrence by the legislature nor is it subject to judicial review.[34] The reason for the difference in the treatment of the aforementioned powers highlights the intent to grant the President the widest leeway and broadest discretion in using the power to call out because it is considered as the lesser and more benign power compared to the power to suspend the privilege of the writ of habeas corpus and the power to impose martial law, both of which involve the curtailment and suppression of certain basic civil rights and individual freedoms, and thus necessitating safeguards by Congress and review by this Court. Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power to suspend the privilege of the writ of habeas corpus or to impose martial law, two conditions must concur: (1) there must be an actual invasion or rebellion and, (2) public safety must require it. These conditions are not required in the case of the power to call out the armed forces. The only criterion is that whenever it becomes necessary, the President may call the armed forces to prevent or suppress lawless violence, invasion or rebellion." The implication is that the President is given full discretion and wide latitude in the exercise of the power to call as
compared to the two other powers. If the petitioner fails, by way of proof, to support the assertion that the President acted without factual basis, then this Court cannot undertake an independent investigation beyond the pleadings. The factual necessity of calling out the armed forces is not easily quantifiable and cannot be objectively established since matters considered for satisfying the same is a combination of several factors which are not always accessible to the courts. Besides the absence of textual standards that the court may use to judge necessity, information necessary to arrive at such judgment might also prove unmanageable for the courts. Certain pertinent information might be difficult to verify, or wholly unavailable to the courts. In many instances, the evidence upon which the President might decide that there is a need to call out the armed forces may be of a nature not constituting technical proof. On the other hand, the President as Commander-in-Chief has a vast intelligence network to gather information, some of which may be classified as highly confidential or affecting the security of the state. In the exercise of the power to call, on-the-spot decisions may be imperatively necessary in emergency situations to avert great loss of human lives and mass destruction of property. Indeed, the decision to call out the military to prevent or suppress lawless violence must be done swiftly and decisively if it were to have any effect at all. Such a scenario is not farfetched when we consider the present situation in Mindanao, where the insurgency problem could spill over the other parts of the country. The determination of the necessity for the calling out power if subjected to unfettered judicial scrutiny could be a veritable prescription for disaster, as such power may be unduly straitjacketed by an injunction or a temporary restraining order every time it is exercised. Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-in-Chief of the Armed Forces, full discretion to call forth the military when in his judgment it is necessary to do so in order to prevent or suppress lawless violence, invasion or rebellion. Unless the petitioner can show that the exercise of such discretion was gravely abused, the Presidents exercise of judgment deserves to be accorded respect from this Court. The President has already determined the necessity and factual basis for calling the armed forces. In his Memorandum, he categorically asserted that, [V]iolent crimes like bank/store robberies, holdups, kidnappings and carnappings continue to occur in Metro Manila...[35] We do not doubt the veracity of the Presidents assessment of the situation, especially in the light of present developments. The Court takes judicial notice of the recent bombings perpetrated by lawless elements in the shopping malls, public utilities, and other public places. These are among the areas of deployment described in the LOI 2000. Considering all these facts, we hold that the President has sufficient factual basis to call for military aid in law enforcement and in the exercise of this constitutional power.
The deployment of the Marines does not violate the civilian supremacy clause nor does it infringe the civilian character of the police force. Prescinding from its argument that no emergency situation exists to justify the calling of the Marines, the IBP asserts that by the deployment of the Marines, the civilian task of law enforcement is militarized in violation of Section 3, Article II[36] of the Constitution. We disagree. The deployment of the Marines does not constitute a breach of the civilian supremacy clause. The calling of the Marines in this case constitutes permissible use of military assets for civilian law enforcement. The participation of the Marines in the conduct of joint visibility patrols is appropriately circumscribed. The limited participation of the Marines is evident in the provisions of the LOI itself, which sufficiently provides the metes and bounds of the Marines authority. It is noteworthy that the local police forces are the ones in charge of the visibility patrols at all times, the real authority belonging to the PNP. In fact, the Metro Manila Police Chief is the overall leader of the PNP-Philippine Marines joint visibility
patrols. [37] Under the LOI, the police forces are tasked to brief or orient the soldiers on police patrol procedures. [38] It is their responsibility to direct and manage the deployment of the Marines. [39] It is, likewise, their duty to provide the necessary equipment to the Marines and render logistical support to these soldiers.[40] In view of the foregoing, it cannot be properly argued that military authority is supreme over civilian authority. Moreover, the deployment of the Marines to assist the PNP does not unmake the civilian character of the police force. Neither does it amount to an insidious incursion of the military in the task of law enforcement in violation of Section 5(4), Article XVI of the Constitution.[41] In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the AFP, by his alleged involvement in civilian law enforcement, has been virtually appointed to a civilian post in derogation of the aforecited provision. The real authority in these operations, as stated in the LOI, is lodged with the head of a civilian institution, the PNP, and not with the military. Such being the case, it does not matter whether the AFP Chief actually participates in the Task Force Tulungan since he does not exercise any authority or control over the same. Since none of the Marines was incorporated or enlisted as members of the PNP, there can be no appointment to civilian position to speak of. Hence, the deployment of the Marines in the joint visibility patrols does not destroy the civilian character of the PNP. Considering the above circumstances, the Marines render nothing more than assistance required in conducting the patrols. As such, there can be no insidious incursion of the military in civilian affairs nor can there be a violation of the civilian supremacy clause in the Constitution. It is worth mentioning that military assistance to civilian authorities in various forms persists in Philippine jurisdiction. The Philippine experience reveals that it is not averse to requesting the assistance of the military in the implementation and execution of certain traditionally civil functions. As correctly pointed out by the Solicitor General, some of the multifarious activities wherein military aid has been rendered, exemplifying the activities that bring both the civilian and the military together in a relationship of cooperation, are:
1. Elections; [42] 2. Administration of the Philippine National Red Cross; [43] 3. Relief and rescue operations during calamities and disasters; [44] 4. Amateur sports promotion and development; [45] 5. Development of the culture and the arts; [46] 6. Conservation of natural resources; [47] 7. Implementation of the agrarian reform program; [48] 8. Enforcement of customs laws; [49] 9. Composite civilian-military law enforcement activities;[50] 10. Conduct of licensure examinations;[51] 11. Conduct of nationwide tests for elementary and high school students;[52] 12. Anti-drug enforcement activities;[53] 13. Sanitary inspections; [54] 14. Conduct of census work;[55] 15. Administration of the Civil Aeronautics Board; [56] 16. Assistance in installation of weather forecasting devices; [57]
17. Peace and order policy formulation in local government units.[58]
This unquestionably constitutes a gloss on executive power resulting from a systematic, unbroken, executive practice, long pursued to the knowledge of Congress and, yet, never before questioned.[59] What we have here is mutual support and cooperation between the military and civilian authorities, not derogation of civilian supremacy. In the United States, where a long tradition of suspicion and hostility towards the use of military force for domestic purposes has persisted, [60] and whose Constitution, unlike ours, does not expressly provide for the power to call, the use of military personnel by civilian law enforcement officers is allowed under circumstances similar to those surrounding the present deployment of the Philippine Marines. Under the Posse Comitatus Act [61] of the US, the use of the military in civilian law enforcement is generally prohibited, except in certain allowable circumstances. A provision of the Act states: 1385. Use of Army and Air Force as posse comitatus Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both.[62] To determine whether there is a violation of the Posse Comitatus Act in the use of military personnel, the US courts[63] apply the following standards, to wit: Were Army or Air Force personnel used by the civilian law enforcement officers at Wounded Knee in such a manner that the military personnel subjected the citizens to the exercise of military power which was regulatory, proscriptive, or compulsory[64] George Washington Law Review, pp. 404-433 (1986), which discusses the four
divergent standards for assessing acceptable involvement of military personnel in civil law enforcement. See likewise HONORED IN THE BREECH: PRESIDENTIAL AUTHORITY TO EXECUTE THE LAWS WITH MILITARY FORCE, 83 Yale Law Journal, pp. 130152, 1973. 64 in nature, either presently or prospectively?
x x x When this concept is transplanted into the present legal context, we take it to mean that military involvement, even when not expressly authorized by the Constitution or a statute, does not violate the Posse Comitatus Act unless it actually regulates, forbids or compels some conduct on the part of those claiming relief. A mere threat of some future injury would be insufficient. (emphasis supplied) Even if the Court were to apply the above rigid standards to the present case to determine whether there is permissible use of the military in civilian law enforcement, the conclusion is inevitable that no violation of the civilian supremacy clause in the Constitution is committed. On this point, the Court agrees with the observation of the Solicitor General: 3. The designation of tasks in Annex A[65] does not constitute the exercise of regulatory, proscriptive, or compulsory
military power. First, the soldiers do not control or direct the operation. This is evident from Nos. 6,[66] 8(k) [67] and 9(a) [68] of Annex A. These soldiers, second, also have no power to prohibit or condemn. In No. 9(d) [69] of Annex A, all arrested persons are brought to the nearest police stations for proper disposition. And last, these soldiers apply no coercive force. The materials or equipment issued to them, as shown in No. 8(c) [70] of Annex A, are all low impact and defensive in character. The conclusion is that there being no exercise of regulatory, proscriptive or compulsory military power, the deployment of a handful of Philippine Marines constitutes no impermissible use of military power for civilian law enforcement.[71]
It appears that the present petition is anchored on fear that once the armed forces are deployed, the
military will gain ascendancy, and thus place in peril our cherished liberties. Such apprehensions, however, are unfounded. The power to call the armed forces is just that - calling out the armed forces. Unless, petitioner IBP can show, which it has not, that in the deployment of the Marines, the President has violated the fundamental law, exceeded his authority or jeopardized the civil liberties of the people, this Court is not inclined to overrule the Presidents determination of the factual basis for the calling of the Marines to prevent or suppress lawless violence. One last point. Since the institution of the joint visibility patrol in January, 2000, not a single citizen has complained that his political or civil rights have been violated as a result of the deployment of the Marines. It was precisely to safeguard peace, tranquility and the civil liberties of the people that the joint visibility patrol was conceived. Freedom and democracy will be in full bloom only when people feel secure in their homes and in the streets, not when the shadows of violence and anarchy constantly lurk in their midst. WHEREFORE, premises considered, the petition is hereby DISMISSED. SO ORDERED. Davide, Jr., C.J., Melo, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur. Bellosillo, J., on official leave. Puno, J., see separate opinion. Vitug, J., see separate opinion. Mendoza, J., see concurring and dissenting opinion. Panganiban, J., in the result. Quisumbing, J., joins the opinion of J. Mendoza.
SEPARATE OPINION
PUNO, J .:
If the case at bar is significant, it is because of the government attempt to foist the political question doctrine to shield an executive act done in the exercise of the commander-in-chief powers from judicial scrutiny. If the attempt succeeded, it would have diminished the power of judicial review and weakened the checking authority of this Court over the Chief Executive when he exercises his commander-in-chief powers. The attempt should remind us of the tragedy that befell the country when this Court sought refuge in the political question doctrine and forfeited its most important role as protector of the civil and political rights of our people. The ongoing conflict in Mindanao may worsen and can force the Chief Executive to resort to the use of his greater commander-in-chief powers, hence, this Court should be extra cautious in assaying similar attempts. A laid back posture may not sit well with our people considering that the 1987 Constitution strengthened the checking powers of this Court and expanded its jurisdiction precisely to stop any act constituting xxx grave abuse of jurisdiction xxx on the part of any branch or instrumentality of the Government.1 The importance of the issue at bar includes this humble separate opinion. We can best perceive the different intersecting dimensions of the political question doctrine by viewing them from the broader canvass of history. Political questions are defined as those questions which under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of government. 2 They have two aspects: (1) those matters that are to be exercised by the people in their primary political capacity and (2) matters which have been specifically delegated to some other department or particular office of the government, with discretionary power to act.3 The exercise of the discretionary power of the legislative or executive branch of government
4
was often the area where the Court had to wrestle with the political question doctrine. A brief review of some of our case law will thus give us a sharper perspective of the political question doctrine. This question confronted the Court as early as 1905 in the case of Barcelon v. Baker.5 The Governor-General of the Philippine Islands, pursuant to a resolution of the Philippine Commission, suspended the privilege of the writ of habeas corpus in Cavite and Batangas based on a finding of open insurrection in said provinces. Felix Barcelon, who was detained by constabulary officers in Batangas, filed a petition for the issuance of a writ of habeas corpus alleging that there was no open insurrection in Batangas. The issue to resolve was whether or not the judicial department may investigate the facts upon which the legislative (the Philippine Commission) and executive (the Governor-General) branches of government acted in suspending the privilege of the writ. The Court ruled that under our form of government, one department has no authority to inquire into the acts of another, which acts are performed within the discretion of the other department. 6 Surveying American law and jurisprudence, it held that whenever a statute gives discretionary power to any person, to be exercised by him upon his own opinion of certain facts, the statute constitutes him the sole judge of the existence of those facts. 7 Since the Philippine Bill of 1902 empowered the Philippine Commission and the Governor-General to suspend the privilege of the writ of habeas corpus, this power is exclusively within the discretion of the legislative and executive branches of government. The exercise of this discretion is conclusive upon the courts. 8 The Court further held that once a determination is made by the executive and legislative departments that the conditions justifying the assailed acts exists, it will presume that the conditions continue until the same authority decide that they no longer exist. 9 It adopted the rationale that the executive branch, thru its civil and military branches, are better situated to obtain information about peace and order from every corner of the nation, in contrast with the judicial department, with its very limited machinery. 10 The seed of the political question doctrine was thus planted in Philippine soil. The doctrine barring judicial review because of the political question doctrine was next applied to the internal affairs of the legislature . The Court refused to interfere in the legislative exercise of disciplinary power over its own members. In the 1924 case of Alejandrino v. Quezon, 11 Alejandrino, who was appointed Senator by the Governor-General, was declared by Senate Resolution as guilty of disorderly conduct for assaulting another Senator in the course of a debate, and was suspended from office for one year. Senator Alejandrino filed a petition for mandamus and injunction to compel the Senate to reinstate him. The Court held that under the Jones Law, the power of the Senate to punish its members for disorderly behavior does not authorize it to suspend an appointive member from the exercise of his office. While the Court found that the suspension was illegal, it refused to issue the writ of mandamus on the ground that "the Supreme Court does not possess the power of coercion to make the Philippine Senate take any particular action. [T]he Philippine Legislature or any branch thereof cannot be directly controlled in the exercise of their legislative powers by any judicial process." 12 The issue revisited the Court twenty-two (22) years later. In 1946, in Vera v. Avelino, 13 three senatorselect who had been prevented from taking their oaths of office by a Senate resolution repaired to this Court to compel their colleagues to allow them to occupy their seats contending that only the Electoral Tribunal had jurisdiction over contests relating to their election, returns and qualifications. Again, the Court refused to intervene citing Alejandrino and affirmed the inherent right of the legislature to determine who shall be admitted to its membership. In the 1947 case of Mabanag v. Lopez-Vito,14 three Senators and eight representatives who were proclaimed elected by Comelec were not allowed by Congress to take part in the voting for the passage of the Parity amendment to the Constitution. If their votes had been counted, the affirmative votes in favor of the proposed amendment would have been short of the necessary three-fourths vote in either House of
Congress to pass the amendment. The amendment was eventually submitted to the people for ratification. The Court declined to intervene and held that a proposal to amend the Constitution is a highly political function performed by Congress in its sovereign legislative capacity. 15 In the 1955 case of Arnault v. Balagtas, 16 petitioner, a private citizen, assailed the legality of his detention ordered by the Senate for his refusal to answer questions put to him by members of one of its investigating committees. This Court refused to order his release holding that the process by which a contumacious witness is dealt with by the legislature is a necessary concomitant of the legislative process and the legislature's exercise of its discretionary authority is not subject to judicial interference. In the 1960 case of Osmena v. Pendatun, 17 the Court followed the traditional line. Congressman Sergio Osmena, Jr. was suspended by the House of Representatives for serious disorderly behavior for making a privilege speech imputing "malicious charges" against the President of the Philippines. Osmena, Jr. invoked the power of review of this Court but the Court once more did not interfere with Congress' power to discipline its members. The contours of the political question doctrine have always been tricky. To be sure, the Court did not always stay its hand whenever the doctrine is invoked. In the 1949 case of Avelino v. Cuenco, 18 Senate President Jose Avelino, who was deposed and replaced, questioned his successor's title claiming that the latter had been elected without a quorum. The petition was initially dismissed on the ground that the selection of Senate President was an internal matter and not subject to judicial review.19 On reconsideration, however, the Court ruled that it could assume jurisdiction over the controversy in light of subsequent events justifying intervention among which was the existence of a quorum.20 Though the petition was ultimately dismissed, the Court declared respondent Cuenco as the legally elected Senate President. In the 1957 case of Tanada v. Cuenco, 21 the Court assumed jurisdiction over a dispute involving the formation and composition of the Senate Electoral Tribunal. It rejected the Solicitor General's claim that the dispute involved a political question. Instead, it declared that the Senate is not clothed with "full discretionary authority" in the choice of members of the Senate Electoral Tribunal and the exercise of its power thereon is subject to constitutional limitations which are mandatory in nature.22 It held that under the Constitution, the membership of the Senate Electoral Tribunal was designed to insure the exercise of judicial impartiality in the disposition of election contests affecting members of the lawmaking body. 23 The Court then nullified the election to the Senate Electoral Tribunal made by Senators belonging to the party having the largest number of votes of two of their party members but purporting to act on behalf of the party having the second highest number of votes. In the 1962 case of Cunanan v. Tan, Jr., 24 the Court passed judgment on whether Congress had formed the Commission on Appointments in accordance with the Constitution and found that it did not. It declared that the Commission on Appointments is a creature of the Constitution and its power does not come from Congress but from the Constitution. The 1967 case of Gonzales v. Comelec25 and the 1971 case of Tolentino v. Comelec26 abandoned Mabanag v. Lopez-Vito. The question of whether or not Congress, acting as a constituent assembly in proposing amendments to the Constitution violates the Constitution was held to be a justiciable and not a political issue. In Gonzales, the Court ruled: "It is true that in Mabanag v. Lopez-Vito, this Court characterizing the issue submitted thereto as a political one, declined to pass upon the question whether or not a given number of votes cast in Congress in favor of a proposed amendment to the Constitution-which was being submitted to the people for ratification-satisfied the three-fourths vote requirement of the fundamental law. The force of this precedent has been weakened, however, by Suanes v. Chief Accountant of the Senate, Avelino v. Cuenco, Tanada v. Cuenco, and Macias v. Commission on Elections. In the first, we held that the officers and employees of the Senate Electoral
Tribunal are under its supervision and control, not of that of the Senate President, as claimed by the latter; in the second, this Court proceeded to determine the number of Senators necessary for a quorum in the Senate; in the third, we nullified the election, by Senators belonging to the party having the largest number of votes in said chamber, purporting to act on behalf of the party having the second largest number of votes therein, of two (2) Senators belonging to the first party, as members, for the second party, of the Senate Electoral Tribunal; and in the fourth, we declared unconstitutional an act of Congress purporting to apportion the representative districts for the House of Representatives upon the ground that the apportionment had not been made as may be possible according to the number of inhabitants of each province. Thus, we rejected the theory, advanced in these four cases, that the issues therein raised were political questions the determination of which is beyond judicial review. 27 The Court explained that the power to amend the Constitution or to propose amendments thereto is not included in the general grant of legislative powers to Congress. As a constituent assembly, the members of Congress derive their authority from the fundamental law and they do not have the final say on whether their acts are within or beyond constitutional limits.28 This ruling was reiterated in Tolentino which held that acts of a constitutional convention called for the purpose of proposing amendments to the Constitution are at par with acts of Congress acting as a constituent assembly. 29 In sum, this Court brushed aside the political question doctrine and assumed jurisdiction whenever it found constitutionally-imposed limits on the exercise of powers conferred upon the Legislature.30 The Court hewed to the same line as regards the exercise of Executive power. Thus, the respect accorded executive discretion was observed in Severino v. Governor-General, 31 where it was held that the Governor-General, as head of the executive department, could not be compelled by mandamus to call a special election in the town of Silay for the purpose of electing a municipal president. Mandamus and injunction could not lie to enforce or restrain a duty which is discretionary. It was held that when the Legislature conferred upon the Governor-General powers and duties, it did so for the reason that he was in a better position to know the needs of the country than any other member of the executive department, and with full confidence that he will perform such duties as his best judgment dictates.32 Similarly, in Abueva v. Wood , 33 the Court held that the Governor-General could not be compelled by mandamus to produce certain vouchers showing the various expenditures of the Independence Commission. Under the principle of separation of powers, it ruled that it was not intended by the Constitution that one branch of government could encroach upon the field of duty of the other. Each department has an exclusive field within which it can perform its part within certain discretionary limits.34 It observed that "the executive and legislative departments of government are frequently called upon to deal with what are known as political questions, with which the judicial department of government has no intervention. In all such questions, the courts uniformly refused to intervene for the purpose of directing or controlling the actions of the other department; such questions being many times reserved to those departments in the organic law of the state."35 In Forties v. Tiaco, 36 the Court also refused to take cognizance of a case enjoining the Chief Executive from deporting an obnoxious alien whose continued presence in the Philippines was found by him to be injurious to the public interest. It noted that sudden and unexpected conditions may arise, growing out of the presence of untrustworthy aliens, which demand immediate action. The President's inherent power to deport undesirable aliens is universally denominated as political, and this power continues to exist for the preservation of the peace and domestic tranquility of the nation. 37 In Manalang v. Quitoriano, 38 the Court also declined to interfere in the exercise of the President's appointing power. It held that the appointing power is the exclusive prerogative of the President, upon which no limitations may be imposed by Congress, except those resulting from the need of securing concurrence of
the Commission on Appointments and from the exercise of the limited legislative power to prescribe qualifications to a given appointive office. We now come to the exercise by the President of his powers as Commander-in-Chief vis-a-vis the political question doctrine. In the 1940's, this Court has held that as Commander-in-Chief of the Armed Forces, the President has the power to determine whether war, in the legal sense, still continues or has terminated. It ruled that it is within the province of the political department and not of the judicial department of government to determine when war is at end. 39 In 1952, the Court decided the landmark case of Montenegro v. Castaneda. 40 President Quirino suspended the privilege of the writ of habeas corpus for persons detained or to be detained for crimes of sedition, insurrection or rebellion. The Court, citing Barcelon, declared that the authority to decide whether the exigency has arisen requiring the suspension of the privilege belongs to the President and his decision is final and conclusive on the courts. 41 Barcelon was the ruling case law until the 1971 case of Lansang v. Garcia came.42 Lansang reversed the previous cases and held that the suspension of the privilege of the writ of habeas corpus was not a political question. According to the Court, the weight of Barcelon was diluted by two factors: (1) it relied heavily on Martin v. Mott, which involved the U.S. President's power to call out the militia which is a much broader power than suspension of the privilege of the writ; and (2) the privilege was suspended by the American Governor-General whose act, as representative of the sovereign affecting the freedom of its subjects, could not be equated with that of the President of the Philippines dealing with the freedom of the sovereign Filipino people. The Court declared that the power to suspend the privilege of the writ of habeas corpus is neither absolute nor unqualified because the Constitution sets limits on the exercise of executive discretion on the matter. These limits are: (1) that the privilege must not be suspended except only in cases of invasion, insurrection or rebellion or imminent danger thereof; and (2) when the public safety requires it, in any of which events the same may be suspended wherever during such period the necessity for the suspension shall exist. The extent of the power which may be inquired into by courts is defined by these limitations.43 On the vital issue of how the Court may inquire into the President's exercise of power, it ruled that the function of the Court is not to supplant but merely to check the Executive; to ascertain whether the President has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act. Judicial inquiry is confined to the question of whether the President did not act arbitrarily. 44 Using this yardstick, the Court found that the President did not. The emergency period of the 1970's flooded the Court with cases which raised the political question defense. The issue divided the Court down the middle. Javellana v. Executive Secretary45 showed that while a majority of the Court held that the issue of whether or not the 1973 Constitution had been ratified in accordance with the 1935 Constitution was justiciable, a majority also ruled that the decisive issue of whether the 1973 Constitution had come into force and effect, with or without constitutional ratification, was a political question.46 The validity of the declaration of martial law by then President Marcos was next litigated before the Court. In Aquino, Jr. v. Enrile,47 it upheld the President's declaration of martial law. On whether the validity of the imposition of martial law was a political or justiciable question, the Court was almost evenly divided. One-half embraced the political question position and the other half subscribed to the justiciable position in Lansang. Those adhering to the political question doctrine used different methods of approach to it. 48 In 1983, the Lansang ruling was weakened by the Court in Garcia-Padilla v. Enrile.49 The petitioners therein were arrested and detained by the Philippine Constabulary by virtue of a Presidential Commitment
Order (PCO). Petitioners sought the issuance of a writ of habeas corpus. The Court found that the PCO had the function of validating a person's detention for any of the offenses covered in Proclamation No. 2045 which continued in force the suspension of the privilege of the writ of habeas corpus. It held that the issuance of the PCO by the President was not subject to judicial inquiry.50 It went further by declaring that there was a need to re-examine Lansang with a view to reverting to Barcelon and Montenegro. It observed that in times of war or national emergency, the President must be given absolute control for the very life of the nation and government is in great peril. The President, it intoned, is answerable only to his conscience, the people, and God.51 But barely six (6) days after Garcia-Padilla, the Court promulgated Morales, Jr. v. Enrile 52 reiterating Lansang. It held that by the power of judicial review, the Court must inquire into every phase and aspect of a person's detention from the moment he was taken into custody up to the moment the court passes upon the merits of the petition. Only after such a scrutiny can the court satisfy itself that the due process clause of the Constitution has been met. 53 It is now history that the improper reliance by the Court on the political question doctrine eroded the people's faith in its capacity to check abuses committed by the then Executive in the exercise of his commander-in-chief powers, particularly violations against human rights. The refusal of courts to be pro-active in the exercise of its checking power drove the people to the streets to resort to extralegal remedies. They gave birth to EDSA. Two lessons were not lost to the members of the Constitutional Commission that drafted the 1987 Constitution. The first was the need to grant this Court the express power to review the exercise of the powers as commander-in-chief by the President and deny it of any discretion to decline its exercise. The second was the need to compel the Court to be pro-active by expanding its jurisdiction and, thus, reject its laid back stance against acts constituting grave abuse of discretion on the part of any branch or instrumentality of government. Then Chief Justice Roberto Concepcion, a member of the Constitutional Commission, worked for the insertion of the second paragraph of Section 1, Article VIII in the draft Constitution,54 which reads: "Sec. 1. x x x. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." The language of the provision clearly gives the Court the power to strike down acts amounting to grave abuse of discretion of both the legislative and executive branches of government. We should interpret Section 18, Article VII of the 1987 Constitution in light of our constitutional history. The provision states: "Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by Congress, if the
invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. x x x." It is clear from the foregoing that the President, as Commander-in-Chief of the armed forces of the Philippines, may call out the armed forces subject to two conditions: (1) whenever it becomes necessary; and (2) to prevent or suppress lawless violence, invasion or rebellion. Undeniably, these conditions lay down the sine qua requirement for the exercise of the power and the objective sought to be attained by the exercise of the power. They define the constitutional parameters of the calling out power. Whether or not there is compliance with these parameters is a justiciable issue and is not a political question. I am not unaware that in the deliberations of the Constitutional Commission, Commissioner Bernas opined that the President's exercise of the "calling out power," unlike the suspension of the privilege of the writ of habeas corpus and the declaration of martial law, is not a justiciable issue but a political question and therefore not subject to judicial review. It must be borne in mind, however, that while a member's opinion expressed on the floor of the Constitutional Convention is valuable, it is not necessarily expressive of the people's intent.55 The proceedings of the Convention are less conclusive on the proper construction of the fundamental law than are legislative proceedings of the proper construction of a statute, for in the latter case it is the intent of the legislature the courts seek, while in the former, courts seek to arrive at the intent of the people through the discussions and deliberations of their representatives.56 The conventional wisdom is that the Constitution does not derive its force from the convention which framed it, but from the people who ratified it, the intent to be arrived at is that of the people. 57 It is true that the third paragraph of Section 18, Article VII of the 1987 Constitution expressly gives the Court the power to review the sufficiency of the factual bases used by the President in the suspension of the privilege of the writ of habeas corpus and the declaration of martial law. It does not follow, however, that just because the same provision did not grant to this Court the power to review the exercise of the calling out power by the President, ergo, this Court cannot pass upon the validity of its exercise. Given the light of our constitutional history, this express grant of power merely means that the Court cannot decline the exercise of its power because of the political question doctrine as it did in the past. In fine, the express grant simply stresses the mandatory duty of this Court to check the exercise of the commander-in-chief powers of the President. It eliminated the discretion of the Court not to wield its power of review thru the use of the political question doctrine. It may be conceded that the calling out power may be a "lesser power" compared to the power to suspend the privilege of the writ of habeas corpus and the power to declare martial law. Even then, its exercise cannot be left to the absolute discretion of the Chief Executive as Commander-in-Chief of the armed forces, as its impact on the rights of our people protected by the Constitution cannot be downgraded. We cannot hold that acts of the commander-in-chief cannot be reviewed on the ground that they have lesser impact on the civil and political rights of our people. The exercise of the calling out power may be "benign" in the case at bar but may not be so in future cases.
The counsel of Mr. Chief Justice Enrique M. Fernando, in his Dissenting and Concurring Opinion in Lansang that it would be dangerous and misleading to push the political question doctrine too far, is apropos . It will not be complementary to the Court if it handcuffs itself to helplessness when a grievously injured citizen seeks relief from a palpably unwarranted use of presidential or military power, especially when the question at issue falls in the penumbra between the "political" and the "justiciable. "58 We should not water down the ruling that deciding whether a matter has been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is a delicate exercise in constitutional interpretation, and is a responsibility of the Court as ultimate interpreter of the fundamental law. 59 When private justiciable rights are involved in a suit, the Court must not refuse to assume jurisdiction even though questions of extreme political importance are necessarily involved. 60 Every officer under a constitutional government must act according to law and subject to the controlling power of the people, acting through the courts, as well as through the executive and legislative. One department is just as representative of the other, and the judiciary is the department which is charged with the special duty of determining the limitations which the law places upon all official action. 61 This historic role of the Court is the foundation stone of a government of laws and not of men.62 I join the Decision in its result.
SEPARATE OPINION
VITUG, J .:
In the equation of judicial power, neither of two extremes - one totalistic and the other bounded - is acceptable nor ideal. The 1987 Constitution has introduced its definition of the term "judicial power" to be that which x x x includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government .1 It is not meant that the Supreme Court must be deemed vested with the awesome power of overseeing the entire bureaucracy, let alone of institutionalizing judicial absolutism, under its mandate. But while this Court does not wield unlimited authority to strike down an act of its two co-equal branches of government, it must not wither under technical guise on its constitutionally ordained task to intervene, and to nullify if need be, any such act as and when it is attended by grave abuse of discretion amounting to lack or excess of jurisdiction. The proscription then against an interposition by the Court into purely political questions, heretofore known, no longer holds within that context. Justice Feria, in the case of Avelino vs. Cuenco,2 has aptly elucidated in his concurring opinion: "x x x [I] concur with the majority that this Court has jurisdiction over cases like the present x x x so as to establish in this country the judicial supremacy, with the Supreme Court as the final arbiter, to see that no one branch or agency of the government transcends the Constitution, not only in justiceable but political questions as well."3 It is here when the Court must have to depart from the broad principle of separation of powers that disallows an intrusion by it in respect to the purely political decisions of its independent and coordinate agencies of government.
The term grave abuse of discretion is long understood in our jurisprudence as being, and confined to, a capricious and whimsical or despotic exercise of judgment amounting to lack or excess of jurisdiction. Minus the not-so-unusual exaggerations often invoked by litigants in the duel of views, the act of the President in simply calling on the Armed Forces of the Philippines, an executive prerogative, to assist the Philippine National Police in "joint visibility patrols" in the metropolis does not, I believe, constitute grave abuse of discretion that would now warrant an exercise by the Supreme Court of its extraordinary power as so envisioned by the fundamental law. Accordingly, I vote for the dismissal of the petition.
MENDOZA, J ., concurring and dissenting:
I concur in the opinion of the Court insofar as it holds petitioner to be without standing to question the validity of LOI 02/2000 which mandates the Philippine Marines to conduct "joint visibility" patrols with the police in Metro Manila. But I dissent insofar as the opinion dismisses the petition in this case on other grounds. I submit that judgment on the substantive constitutional issues raised by petitioner must await an actual case involving real parties with "injuries" to show as a result of the operation of the challenged executive action. While as an organization for the advancement of the rule of law petitioner has an interest in upholding the Constitution, its interest is indistinguishable from the interest of the rest of the citizenry and falls short of that which is necessary to give petitioner standing. As I have indicated elsewhere, a citizens' suit challenging the constitutionality of governmental action requires that (1) the petitioner must have suffered an "injury in fact" of an actual or imminent nature; (2) there must be a causal connection between the injury and the conduct complained of; and (3) the injury is likely to be redressed by a favorable action by this Court.1 The "injury in fact" test requires more than injury to a cognizable interest. It requires that the party seeking review be himself among those injured. 2 My insistence on compliance with the standing requirement is grounded in the conviction that only a party injured by the operation of the governmental action challenged is in the best position to aid the Court in determining the precise nature of the problem presented. Many a time we have adverted to the power of judicial review as an awesome power not to be exercised save in the most exigent situation. For, indeed, sound judgment on momentous constitutional questions is not likely to be reached unless it is the result of a clash of adversary arguments which only parties with direct and specific interest in the outcome of the controversy can make. This is true not only when we strike down a law or official action but also when we uphold it. In this case, because of the absence of parties with real and substantial interest to protect, we do not have evidence on the effect of military presence in malls and commercial centers, i.e. , whether such presence is coercive or benign. We do not know whether the presence of so many marines and policemen scares shoppers, tourists, and peaceful civilians, or whether it is reassuring to them. To be sure, the deployment of troops to such places is not like parading them at the Luneta on Independence Day. Neither is it, however, like calling them out because of actual fighting or the outbreak of violence. We need to have evidence on these questions because, under the Constitution, the President's power to call out the armed forces in order to suppress lawless violence, invasion or rebellion is subject to the limitation that the exercise of this power is required in the interest of public safety. 3 Indeed, whether it is the calling out of the armed forces alone in order to suppress lawless violence, invasion or rebellion or also the suspension of the privilege of the writ of habeas corpus or the proclamation of martial law (in case of invasion or rebellion), the exercise of the President's powers as commander-inchief, requires proof - not mere assertion. 4 As has been pointed out, "Standing is not `an ingenious academic exercise in the conceivable' . . . but requires . . . a factual showing of perceptible harm."5
Because of the absence of such record evidence, we are left to guess or even speculate on these questions. Thus, at one point, the majority opinion says that what is involved here is not even the calling out of the armed forces but only the use of marines for law enforcement. (p. 13) At another point, however, the majority opinion somersaults and says that because of bombings perpetrated by lawless elements, the deployment of troops in shopping centers and public utilities is justified. (p. 24) We are likely to err in dismissing the suit brought in this case on the ground that the calling out of the military does not violate the Constitution, just as we are likely to do so if we grant the petition and invalidate the executive issuance in question. For indeed, the lack of a real, earnest and vital controversy can only impoverish the judicial process. That is why, as Justice Laurel emphasized in the Angara case, "this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented." 6 We are told, however, that the issues raised in this case are of "paramount interest" to the nation. It is precisely because the issues raised are of paramount importance that we should all the more forego ruling on the constitutional issues raised by petitioner and limit the dismissal of this petition on the ground of lack of standing of petitioner. A Fabian policy of leaving well enough alone is a counsel of prudence. For these reasons and with due appreciation of the scholarly attention lavished by the majority opinion on the constitutional questions raised, I am constrained to limit my concurrence to the dismissal of this suit on the ground of lack of standing of petitioner and the consequent lack of an actual case or controversy.
1 Sec. 1, Article VIII, 1987 Constitution. 2 Tanada v. Cuenco, 103 Phil. 1051, 1067 [1957], citing 16 C.J.S. 413. 3 Tanada v. Cuenco, supra, 1067, quoting In re McConaughy, 119 NW 408 [1909]. 4 Bernas, The 1987 Constitution of the Republic of the Philippines A Commentary, p. 859 [1996]. 5 5 Phil. 87 [1905]. 6 Id. at 97. 7 Id. at 104. 8 See Cruz, Philippine Political law, p. 87 [1998]. 9 Id. at 113-114. 10 Id. at 106-107. 11 46 Phil. 83 [1924]. 12 Id. at 97. 13 77 Phil. 192 [1946]. 14 78 Phil. 1 [1947]. 15 Id. at 4-5. The court also adopted the enrolled bill theory which, like findings under the political question doctrine, imports absolute verity on the courts-at 12. 16 97 Phil. 358 [1955]. 17 109 Phil. 863 [1960]. 18 83 Phil. 17 [1949]. 19 Id. at 21-22. 20 Id. at 68-69. 21 103 Phil. 1051 [1957]. 22 Id. at 1068. 23 Id. at 1083. 24 5 SCRA 1 [1962]. 25
21 SCRA 774 [1967]. 26 41 SCRA 702 [1971]. 27 Id. at 785-786. 28 Id. at 787. 29 41 SCRA at 713. 30 Bernas, The 1987 Constitution of the Republic of the Philippines A Commentary, p. 861 [1996]. 31 16 Phil. 366 [1910]. 32 Id. at 401. 33 45 Phil. 612 [1924]. 34 Id. At 630. 35 Id. at 637-638. 36 16 Phil. 534 [1910]. 37 Id. at 568-569, 576. 38 94 Phil. 903 [1954]. 39 Untal v. Chief of Staff, AFP, 84 Phil. 586 [1949]; Raquiza v. Bradford, 75 Phil. 50 [1945]. 40 91 Phil. 882 [1952]. 41 Id. at 887. 42 42 SCRA 448 [1971]. 43 Id. at 474. 44 Id. at 480-481. 45 50 SCRA 30 [1973]. 46 Id. at 138, 140-141. 47 59 SCRA 183 [1973]. 48 Ibid. 49 121 SCRA 472 [1983]. 50 Id. at 490-491. 51 Id. at 500-501. 52 121 SCRA 538 [1983]. 53 Id. at 563. 54 See Concepcions sponsorship speech, I Record 434-435; see also Bernas, the Constitution of the Republic of the Philippines A Commentary, p. 863 [1996]. 55 J.M. Tuason & Co., Inc. v. Land Tenure Administration, 31 SCRA 413, 423-426 [1970]. 56 Vera v. Avelino, 77 Phil. 192, 215 [1946]; see also Agpalo, Statutory Construction, 4th ed., p. 454 [1998]. 57 Black, Handbook on the Construction and Interpretation of the laws, 2d ed., p. 39 [1911]. 58 SCRA at 506-507, see also Rossiter, The Supreme Court and the Commander-in-Chief, pp. 16-17 [1951]. 59 Baker v. Carr, 7 L Ed 2d at 682. 60 Willoughby on the Constitution of the United States, vol. 3, 2d ed., p. 1336 [1929]. 61 Tanada v. Macapagal, 103 Phil. At 1067, quoting In re McConaughy, 119 NW 408 [1909]. 62 Id. 1 Section 1, Article VIII of the Constitution. 2 83 Phil. 17. 3 Sen. Miriam Defensor Santiago, et al. vs. Sen. Teofisto Guingona, Jr., et al., 298 SCRA 756. 1 Tatad v. Garcia, 243 SCRA 436, 473 (1995) (concurring). Accord, Telecommunication and Broadcast Attorneys of the Philippines v. COMELEC, 289 SCRA 343 (1998). 2 Lujan v. Defenders of Wildlife, 504 U.S. 555, 119 L. Ed. 2d 351 (1992). 3 See CONST., ART. VII, 18. 4 See Lansang v. Garcia, 42 SCRA 448 (1971).
5 Lujan v. Defenders of Wildlife, supra. 6 Angara v. Electoral Commission, 63 Phil. 139, 158 (1936)
[1] Rollo , pp. 17-21. [2] As of 19 May 2000, the Marines have been recalled from their areas of deployment to join the military operations in Mindanao, and replaced by Air Force personnel who took over their functions in the joint visibility patrols. The Air Force personnel, just like the Marines, were ordered to assist the PNP, also by virtue of LOI 2/2000. Since both the Marines and Air Force belong to the Armed Forces, the controversy has not been rendered moot and academic by the replacement of the former by the latter. The validity of the deployment of the armed forces in the joint visibility patrols thus remain an issue. [3] Rollo , pp. 75-76. [4] Id., at 75. [5] Id. [6] Id. [7] Rollo, p. 75. [8] Id. , at 17-18. [9] Id. [10] Rollo , p. 7. [11] Id. , at 24. [12] Philippine Constitution Association v. Enriquez, 235 SCRA 506 (1994) citing Luz Farms v. Secretary of the Department of Agrarian Reform, 192 SCRA 51 (1990); Dumlao v. Commission on Elections, 95 SCRA 392 (1980); and, People v. Vera, 65 Phil. 56 (1937). [13] Joya v. Presidential Commission on Good Govenment, 225 SCRA 568, 576 (1993). [14] Ibid., citing House International Building Tenants Association, Inc. v. Intermediate Appellate Court, 151 SCRA 703 (1987). [15] Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7L. Ed. 2d 663, 678 (1962). [16] Joya v. Presidential Commission on Good Government, supra note 13, at 579 citing Dumlao v. Commission on Elections, 95 SCRA 392 (1980). [17] Tatad v. Secretary of the Department of Energy, 281 SCRA 330, 349 (1997) citing Garcia v. Executive Secretary, 211 SCRA 219 (1992); Osmea v. COMELEC, 199 SCRA 750 (1991); Basco v. Pagcor, 197 SCRA 52 (1991); and, Araneta v. Dinglasan, 84 Phil. 368 (1949). [18] Santiago v. COMELEC, 270 SCRA 106 (1997); Joya v. Presidential Commission on Good Government, 225 SCRA 568 (1993); Daza v. Singson, 180 SCRA 496 (1989). As formulated by Mr. Justice (now Chief Justice) Hilario G. Davide, Jr. in Kilosbayan, Inc . vs. Guingona, Jr., [232 SCRA 110 (1994)] "(a) party's standing before this Court is a procedural technicality which it may, in the exercise of its discretion, set aside in view of the importance of the issues raised," favorably citing our ruling in the Emergency Powers Cases [L-2044 (Araneta v. Dinglasan); L2756 (Araneta v. Angeles); L-3054 (Rodriquez v. Tesorero de Filipinas); and L-3056 (Barredo v. COMELEC), 84 Phil. 368 (1940)] where this Court brushed aside this technicality because "the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technical rules of procedure." An inflexible rule on locus standi would result in what Mr. Justice Florentino P. Feliciano aptly described as a doctrinal ball and chain xxx clamped on our own limbs." [Kilosbayan, Inc. v. Morato, 250 SCRA 130 (1995)]. [19] Rollo , p. 12 [20] Article II, Sections 4 and 5 of the Constitution provide: Sec. 4. The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal, military or civil service. Sec. 5. The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general welfare are essential for
the enjoyment by all the people of the blessings of democracy. [21] 177 SCRA 668, 694 (1989). [22] WESTS LEGAL THESAURUS/DICTIONARY (Special Deluxe Edition) p. 440 (1986). [23] 103 Phil. 1051 (1957). [24] 369 U.S. 186, 82 S ct. 691, 7 L. Ed. 2d 663, 678 (1962). [25] Article VIII, Sec. 1 of the 1987 CONSTITUTION. [26] Santiago v. Guingona, Jr., 298 SCRA 756 (1998). [27] Bengzon, Jr . v. Senate Blue Ribbon Committee, 203 SCRA 767 (1991). [28] Marcos v. Manglapus, , supra note 21, see also Daza v. Singson, 180 SCRA 496 (1988); Coseteng v. Mitra, 187 SCRA 377 (1990). [29] Sinon v. Civil Service Commission, 215 SCRA 410 (1992); See also Producers Bank v. NLRC, 165 SCRA 284 (1988); Litton Mills v. Galleon Trader, Inc ., 163 SCRA 494 (1988). [30] Ledesma v. Court of Appeals, 278 SCRA 659 (1997). [31] Bondoc v. Pineda, 201 SCRA 792 (1991). [32] Drilon v. Lim, 235 SCRA 135 (1994). [33] Sarmiento v. Mison, 156 SCRA 549 (1987). [34] II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, pp. 409, 412 (1986). [35] Rollo , p. 75. [36] Section 3, provides:
Civilian authority, is at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory.
[37] No. 9 of the LOI provides: COORDINATING INSTRUCTIONS: a. RD, NCRPO is designated as Task Force Commander TULUNGAN. [38] No. 6 of the LOI states: DEPLOYMENT/EMPLOYMENT OF JOINT NCRPO-PHILIPPINE MARINES: b. Before their deployment/employment, receiving units shall properly brief/orient the troops on police patrol/visibility procedures. [39] No. 8 of the LOI provides: TASKS: k. POLICE DISTRICTS/STATIONS -Provide direction and manage the deployment of all Philippine Marines personnel deployed in your AOR for police visibility operations. -Conduct briefing/orientation to Philippine Marines personnel on the dos and donts of police visibility patrols. -Provide transportation to Philippine Marines from districts headquarters to different stations and PCPs. -Perform other tasks as directed. [40] No. 8 of the LOI states: TASKS: c. RLD/R4 -Coordinate with the Directorate for Logistics for the issuance of the following equipments (sic) to be utilize (sic) by the Philippine Marines personnel: 500 pieces Probaton, 500 whistle (sic), 500 pieces brazzard blazoned. -Coordinate with the Directorate for Logistics for the issuance of the following for use of PNP personnel involved in the visibility patrol operations:
1,000 sets of PNP GOA Uniform 500 each raincoats 500 each Probaton 500 each Whistle 500 each handcuffs 500 each Combat Boots 500 each low cut shoes -Provide transportation to the Philippine Marines personnel in coordination with LSS, NHQ PNP. -Provide additional gas allocation to Philippine Marines members of the Inspection Teams. - Perform other tasks as directed.40 [41] Sec. 5(4), Article XVI, provides:
No member of the Armed Forces in the active service shall, at any time, be appointed in the government including government-owned
and controlled corporations or any of their subsidiaries. [42] CONSTITUTION, Article IX-C, Section 2; Comelec Resolution No. 3071 (1999), which is entitled In Re Guidelines for the Designation of Registration Centers and the Accountable Officers for the Polaroid Instant Cameras for Purposes of the Registration of Voters on 8-9 May 1999 in the Autonomous Region in Muslim Mindanao; Comelec Resolution No. 3059 (1999), which is entitled, In the Matter of Deputizing the Armed Forces of the Philippines and the Three (3) AFP Components, Namely: Philippine Army, Philippine Navy and Philippine Air Force, for the Purpose of Ensuring Free, Orderly, Honest and Peaceful Precinct Mapping, Registration of Voters and the Holding of the September 13, 1999 Elections in the Autonomous Region in Muslim Mindanao (ARMM); Republic Act No. 7166 (1991), Section 33, which is entitled An Act Providing for Synchronized National and Local Elections and for Electoral Reforms, Authorizing Appropriations therefor, and for other Purposes; Administrative Code of 1987, Book V, Title I, Subtitle C, Chapter 1, Sections 2 (4) and 3; Batas Pambansa Blg. 881, Article VI, Sections 52 (b) and 57 (3) (1985), which is also known as Omnibus Election Code. [43] Republic Act No. 95 (1947), Section 5, which is entitled An Act to Incorporate the Philippine National Red Cross Section; Republic Act No. 855 (1953), Section 1, which is entitled An Act to Amend Section V of Republic Act Numbered Ninety-Five, entitled An Act to Incorporate the Philippine National Red Cross. [44] Republic Act No. 7077 (1991), Article III, Section 7, which is entitled An Act Providing for the Development, Administration, Organization, Training, Maintenance and Utilization of the Citizen Armed Forces of the Armed Forces of the Philippines and for other Purposes. [45] Republic Act No. 6847 (1990), Section 7, which is entitled An Act Creating and Establishing The Philippine Sports Commission, Defining its Powers, Functions and Responsibilities, Appropriating Funds therefor, and for other Purposes. [46] Republic Act No. 8492 (1998), Section 20, which is entitled An Act Establishing a National Museum System, Providing for its Permanent Home and for other Purposes. [47] Republic Act No. 8550 (1998), Section 124, which is entitled An Act Providing for the Development, Management and Conservation of the Fisheries and Aquatic Resources, Integrating All Laws Pertinent Thereto, and for other Purposes; Memorandum Circular No. 150 (1996), which is entitled Amending Memorandum Circular No. 128, dated July 20, 1995 by Reorganizing the Presidential Task Force on Tubbataha Reef National Marine Park; Executive Order No. 544 (1979), Letter I, which is entitled Creating a Presidential Committee for the Conservation of the Tamaraw, Defining its Powers and for other Purposes. [48] Executive Order No. 129-A (1987) Section 5 (m), which is entitled Modifying Executive Order No. 129 Reorganizing and Strengthening the Department of Agrarian Reform and for other Purposes. [49] Republic Act No. 1937 (1957), Section 2003, which is entitled An Act to Revised and Codify the Tariff and Customs Laws of the Philippines; Executive Order No. 45 (1998), which is entitled Creating a Presidential Anti-Smuggling Task Force to Investigate and Prosecute Crimes Involving Large-Scale Smuggling and other Frauds upon Customs and Providing Measures to Expedite Seizure Proceedings; [50] These cases involved joint military and civilian law enforcement operations: People v. Escalante , G.R No. 106633, December 1, 1994; People v. Bernardo, G.R. No. 97393, March 17, 1993; People v. De la Cruz, G.R. No. 83260, April 18, 1990; Guanzon v. de Villa , 181 SCRA 623, 631 (1990). (This case recognizes the complementary roles of the PNP and the military in conducting anti-crime campaigns, provided that the peoples rights are not violated in these words: If the military and the police must conduct concerted campaigns to flush out and catch criminal elements, such drives must be consistent with the constitutional and statutory rights of all people affected by such actions. The creation of the Task Force
also finds support in Valmonte v. de Villa , 185 SCRA 665 (1990). Executive Order No. 62 (1999), which is entitled Creating the Philippine Center on Transnational Crime to Formulate and Implement a Concerted Program of Action of All Law Enforcement, Intelligence and other Agencies for the Prevention and Control of Transnational Crime; Executive Order No. 8 (1998), which is entitled Creating a Presidential AntiOrganized Crime Commission and a Presidential Anti-Organized Crime Task Force, to Investigate and Prosecute Criminal Elements in the Country; Executive Order No. 280 (1995), which is entitled Creating a Presidential Task Force of Intelligence and Counter-Intelligence to Identify, Arrest and Cause the Investigation and Prosecution of Military and other Law Enforcement Personnel on their Former Members and Their Cohorts Involved in Criminal Activities. [51] Memorandum Circular No. 141 (1996), which is entitled Enjoining Government Agencies Concerned to Extend Optimum Support and Assistance to the Professional Regulation Commission in its Conduct of Licensure Examinations. [52] Memorandum Circular No. 32 (1999), which is entitled Directing the Government Agencies Concerned to Extend Maximum Support and Assistance to the National Educational Testing and Research Center (NETRC) of the Department of Education, Culture and Sports (DECS) in the Conduct of Tests of National Coverage. [53] Executive Order No. 61 (1999), which is entitled Creating the National Drug Law Enforcement and Prevention Coordinating Center to Orchestrate Efforts of national Government Agencies, Local Government Units, and Non-Government Organizations for a More Effective AntiDrug Campaign. [54] Republic Act No. 4089 (1964), which is entitled An Act Making the City Health Officer of Bacolod City the Local Civil Registrar, Amending for the Purpose Section Forty-Three of the Charter of said City;" Republic Act No. 537 (1950), which is entitled "An Act to Revise the Charter of Quezon City; Commonwealth Act No. 592 (1940), which is entitled An Act to Create the City of Dansalan; Commonwealth Act No. 509 (1939), which is entitled An Act to Create Quezon City; Commonwealth Act No. 326 (1938), which is entitled An Act Creating the City of Bacolod; Commonwealth Act No. 39 (1936), which is entitled An Act Creating the City of Zamboanga; Commonwealth Act No. 51 (1936), which is entitled An Act Creating the City of Davao. [55] Republic Act No. 36 (1946), which is entitled Census Act of Nineteen Hundred and Forty-Six. [56] Republic Act No. 776 (1952), Section 5, which is entitled An Act to Reorganize the Civil Aeronautics Board and the Civil Aeronautics Administration, To Provide for the Regulation of Civil Aeronautics in the Philippines and Authorizing the Appropriation of Funds Therefor. [57] Republic Act No. 6613 (1972), Section 4, which is entitled An Act Declaring a Policy of the State to Adopt Modern Scientific Methods to Moderate Typhoons and Prevent Destruction by Floods, Rains and Droughts, Creating a Council on Typhoons and Prevent Destruction by Flood, Rains and Droughts, Creating a Council on Typhoon Moderation and Flood Control Research and Development, Providing for its Powers and Functions and Appropriating Funds Therefor. [58] Local Government Code of 1991, Book I, Title Seven, Section 116. [59] This theory on gloss of executive power was advanced by Justice Frankfurter in his concurring opinion in Youngstown Sheet and Tube v. Sawyer , 343 US 579, 610-611 (1952). [60] Bissonette v. Haig, 766 F.2d 1384, 1389 (1985). [61] 18 U.S.C.A 1385 (1878). [62] Ibid. [63] Bissonette v. Haig, supra note 60, at 1390. [64] A power regulatory in nature is one which controls or directs. It is proscriptive if it prohibits or condemns and compulsory if it exerts some coercive force. See US v. Yunis, 681 F.Supp. 891 (D.D.C., 1988). See also FOURTH AMENDMENT AND POSSE COMITATUS ACT RESTRICTIONS ON MILITARY INVOLVEMENT IN CIVIL LAW ENFORCEMENT, [65] L.O.I. 02/2000, TULUNGAN, Rollo , pp. 17-22. [66] No. 6 of the LOI states: DEPLOYMENT/EMPLOYMENT OF JOINT NCRPO-PHILIPPINE MARINES: a. The PNP NCPRO thru Police Districts will continue to deploy uniformed PNP personnel dedicated for police visibility patrols in tandem with the Philippine Marines. b. Before their deployment/employment, receiving units shall properly brief/orient the troops on police patrol/visibility procedures.66 [67]
Supra note 34. [68] Supra note 32. [69] No. 9 of the LOI states: d. In case of apprehensions, arrested person/s shall be brought to the nearest police stations/PCPs. [70] Supra note 35. [71] Rollo , p. 70.
SECOND DIVISION
[G.R. No. 131719. May 25, 2004]
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF LABOR AND EMPLOYMENT, AND THE SECRETARY OF FOREIGN AFFAIRS, OWWA ADMINISTRATOR, and POEA ADMINISTRATOR, petitioners , vs . THE HON. COURT OF APPEALS and ASIAN RECRUITMENT COUNCIL PHILIPPINE CHAPTER (ARCO-PHIL.), INC., representing its members: Worldcare Services Internationale, Inc., Steadfast International Recruitment Corporation, Dragon International Manpower Services Corporation, Verdant Manpower Mobilization Corporation, Brent Overseas Personnel, Inc., ARL Manpower Services, Inc., Dahlzhen International Services, Inc., Interworld Placement Center, Inc., Lakas Tao Contract Services, Ltd. Co., and SSC Multiservices, respondents . DECISION
CALLEJO, SR., J .:
In this petition for review on certiorari , the Executive Secretary of the President of the Philippines, the Secretary of Justice, the Secretary of Foreign Affairs, the Secretary of Labor and Employment, the POEA Administrator and the OWWA Administrator, through the Office of the Solicitor General, assail the Decision [1] of the Court of Appeals in CA-G.R. SP No. 38815 affirming the Order[2] of the Regional Trial Court of Quezon City dated August 21, 1995 in Civil Case No. Q-95-24401, granting the plea of the petitioners therein for a writ of preliminary injunction and of the writ of preliminary injunction issued by the trial court on August 24, 1995.
The Antecedents Republic Act No. 8042, otherwise known as the Migrant Workers and Overseas Filipinos Act of 1995, took effect on July 15, 1995. The Omnibus Rules and Regulations Implementing the Migrant Workers and Overseas Filipino Act of 1995 was, thereafter, published in the April 7, 1996 issue of the Manila Bulletin. However, even before the law took effect, the Asian Recruitment Council Philippine Chapter, Inc. (ARCOPhil.) filed, on July 17, 1995, a petition for declaratory relief under Rule 63 of the Rules of Court with the Regional Trial Court of Quezon City to declare as unconstitutional Section 2, paragraph (g), Section 6, paragraphs (a) to (j), (l) and (m), Section 7, paragraphs (a) and (b), and Sections 9 and 10 of the law, with a plea for the issuance of a temporary restraining order and/or writ of preliminary injunction enjoining the respondents therein from enforcing the assailed provisions of the law. In a supplement to its petition, the ARCO-Phil. alleged that Rep. Act No. 8042 was self-executory and that no implementing rules were needed. It prayed that the court issue a temporary restraining order to enjoin the enforcement of Section 6, paragraphs (a) to (m) on illegal recruitment, Section 7 on penalties for illegal recruitment, and Section 9 on venue of criminal actions for illegal recruitments, viz:
Viewed in the light of the foregoing discussions, there appears to be urgent an imperative need for this Honorable Court to maintain the status quo by enjoining the implementation or effectivity of the questioned provisions of RA 8042, by way of a restraining order otherwise, the member recruitment agencies of the petitioner will suffer grave or irreparable damage or injury. With the effectivity of RA 8042, a great majority of the duly licensed recruitment agencies have stopped or suspended their operations for fear of being prosecuted under the provisions of a law that are unjust and unconstitutional. This Honorable Court may take judicial notice of the fact that processing of deployment papers of overseas workers for the past weeks have come to a standstill at the POEA and this has affected thousands of workers everyday just because of the enactment of RA 8042. Indeed, this has far reaching effects not only to survival of the overseas manpower supply industry and the active participating recruitment agencies, the countrys economy which has survived mainly due to the dollar remittances of the overseas workers but more importantly, to the poor and the needy who are in dire need of income-generating jobs which can only be obtained from abroad. The loss or injury that the recruitment agencies will suffer will then be immeasurable and irreparable. As of now, even foreign employers have already reduced their manpower requirements from the Philippines due to their knowledge that RA 8042 prejudiced and adversely affected the local recruitment agencies. [3] On August 1, 1995, the trial court issued a temporary restraining order effective for a period of only twenty (20) days therefrom. After the petitioners filed their comment on the petition, the ARCO-Phil. filed an amended petition, the amendments consisting in the inclusion in the caption thereof eleven (11) other corporations which it alleged were its members and which it represented in the suit, and a plea for a temporary restraining order enjoining the respondents from enforcing Section 6 subsection (i), Section 6 subsection (k) and paragraphs 15 and 16 thereof, Section 8, Section 10, paragraphs 1 and 2, and Sections 11 and 40 of Rep. Act No. 8042. The respondent ARCO-Phil. assailed Section 2(g) and (i), Section 6 subsection (a) to (m), Section 7(a) to (b), and Section 10 paragraphs (1) and (2), quoted as follows: (g) THE STATE RECOGNIZES THAT THE ULTIMATE PROTECTION TO ALL MIGRANT WORKERS IS THE POSSESSION OF SKILLS. PURSUANT TO THIS AND AS SOON AS PRACTICABLE, THE GOVERNMENT SHALL DEPLOY AND/OR ALLOW THE DEPLOYMENT ONLY OF SKILLED FILIPINO WORKERS. [4] Sec. 2 subsection (i, 2nd par.) Nonetheless, the deployment of Filipino overseas workers, whether land-based or sea-based, by local service contractors and manning agents employing them shall be encourages ( sic). Appropriate incentives may be extended to them. II. ILLEGAL RECRUITMENT SEC. 6. Definition. For purposes of this Act, illegal recruitment shall mean any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referring, contract services, promising or advertising for employment abroad, whether for profit or not, when undertaken by a non-licensee or non-holder of authority contemplated under Article 13(f) of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines: Provided, That any such non-licensee or non-holder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. It shall, likewise, include the following acts, whether committed by any person, whether a non-licensee, non-holder, licensee or holder of authority: (a) To charge or accept directly or indirectly any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor and Employment, or to make a worker pay any amount greater than that actually received by him as a loan or advance; (b) To furnish or publish any false notice or information or document in relation to recruitment or employment;
(c) To give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under the Labor Code; (d) To induce or attempt to induce a worker already employed to quit his employment in order to offer him another unless the transfer is designed to liberate a worker from oppressive terms and conditions of employment; (e) To influence or attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency; (f) To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines; (g) To obstruct or attempt to obstruct inspection by the Secretary of Labor and Employment or by his duly authorized representative; (h) To fail to submit reports on the status of employment, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and such other matters or information as may be required by the Secretary of Labor and Employment; (i) To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the Department of Labor and Employment from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the Department of Labor and Employment; (j) For an officer or agent of a recruitment or placement agency to become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of a travel agency; (k) To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations other than those authorized under the Labor Code and its implementing rules and regulations; (l) Failure to actually deploy without valid reason as determined by the Department of Labor and Employment; and (m) Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the workers fault. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage. Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group. The persons criminally liable for the above offenses are the principals, accomplices and accessories. In case of juridical persons, the officers having control, management or direction of their business shall be liable. SEC. 7. Penalties. (a) Any person found guilty of illegal recruitment shall suffer the penalty of imprisonment of not less than six (6) years and one (1) day but not more than twelve (12) years and a fine of not less than two hundred thousand pesos (P200,000.00) nor more than five hundred thousand pesos (P500,000.00). (b) The penalty of life imprisonment and a fine of not less than five hundred thousand pesos (P500,000.00) nor more than one million pesos (P1,000,000.00) shall be imposed if illegal recruitment constitutes economic sabotage as defined herein.
Provided, however, That the maximum penalty shall be imposed if the person illegally recruited is less than eighteen (18) years of age or committed by a non-licensee or non-holder of authority. Sec. 8. Prohibition on Officials and Employees . It shall be unlawful for any official or employee of the Department of Labor and Employment, the Philippine Overseas Employment Administration (POEA), or the Overseas Workers Welfare Administration (OWWA), or the Department of Foreign Affairs, or other government agencies involved in the implementation of this Act, or their relatives within the fourth civil degree of consanguinity or affinity, to engage, directly or indirectly, in the business of recruiting migrant workers as defined in this Act. The penalties provided in the immediate preceding paragraph shall be imposed upon them. (underscoring supplied) Sec. 10, pars. 1 & 2. Money Claims. Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, within ninety (90) calendar days after the filing of the complaint, the claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damages. The liability of the principal/employer and the recruitment/placement agency for any and all claims under this section shall be joint and several. This provision shall be incorporated in the contract for overseas employment and shall be a condition precedent for its approval. The performance bond to be filed by the recruitment/placement agency, as provided by law, shall be answerable for all money claims or damages that may be awarded to the workers. If the recruitment/placement agency is a juridical being, the corporate officers and directors and partners as the case may be, shall themselves be jointly and solidarily liable with the corporation or partnership for the aforesaid claims and damages. SEC. 11. Mandatory Periods for Resolution of Illegal Recruitment Cases. The preliminary investigations of cases under this Act shall be terminated within a period of thirty (30) calendar days from the date of their filing. Where the preliminary investigation is conducted by a prosecution officer and a prima facie case is established, the corresponding information shall be filed in court within twenty-four (24) hours from the termination of the investigation. If the preliminary investigation is conducted by a judge and a prima facie case is found to exist, the corresponding information shall be filed by the proper prosecution officer within forty-eight (48) hours from the date of receipt of the records of the case. The respondent averred that the aforequoted provisions of Rep. Act No. 8042 violate Section 1, Article III of the Constitution.[5] According to the respondent, Section 6(g) and (i) discriminated against unskilled workers and their families and, as such, violated the equal protection clause, as well as Article II, Section 12[6] and Article XV, Sections 1[7] and 3(3) of the Constitution.[8] As the law encouraged the deployment of skilled Filipino workers, only overseas skilled workers are granted rights. The respondent stressed that unskilled workers also have the right to seek employment abroad. According to the respondent, the right of unskilled workers to due process is violated because they are prevented from finding employment and earning a living abroad. It cannot be argued that skilled workers are immune from abuses by employers, while unskilled workers are merely prone to such abuses. It was pointed out that both skilled and unskilled workers are subjected to abuses by foreign employers. Furthermore, the prohibition of the deployment of unskilled workers abroad would only encourage fly-by-night illegal recruiters. According to the respondent, the grant of incentives to service contractors and manning agencies to the
exclusion of all other licensed and authorized recruiters is an invalid classification. Licensed and authorized recruiters are thus deprived of their right to property and due process and to the equality of the person. It is understandable for the law to prohibit illegal recruiters, but to discriminate against licensed and registered recruiters is unconstitutional. The respondent, likewise, alleged that Section 6, subsections (a) to (m) is unconstitutional because licensed and authorized recruitment agencies are placed on equal footing with illegal recruiters. It contended that while the Labor Code distinguished between recruiters who are holders of licenses and non-holders thereof in the imposition of penalties, Rep. Act No. 8042 does not make any distinction. The penalties in Section 7(a) and (b) being based on an invalid classification are, therefore, repugnant to the equal protection clause, besides being excessive; hence, such penalties are violative of Section 19(1), Article III of the Constitution.[9] It was also pointed out that the penalty for officers/officials/employees of recruitment agencies who are found guilty of economic sabotage or large-scale illegal recruitment under Rep. Act No. 8042 is life imprisonment. Since recruitment agencies usually operate with a manpower of more than three persons, such agencies are forced to shut down, lest their officers and/or employees be charged with large scale illegal recruitment or economic sabotage and sentenced to life imprisonment. Thus, the penalty imposed by law, being disproportionate to the prohibited acts, discourages the business of licensed and registered recruitment agencies. The respondent also posited that Section 6(m) and paragraphs (15) and (16), Sections 8, 9 and 10, paragraph 2 of the law violate Section 22, Article III of the Constitution [10] prohibiting ex-post facto laws and bills of attainder. This is because the provisions presume that a licensed and registered recruitment agency is guilty of illegal recruitment involving economic sabotage, upon a finding that it committed any of the prohibited acts under the law. Furthermore, officials, employees and their relatives are presumed guilty of illegal recruitment involving economic sabotage upon such finding that they committed any of the said prohibited acts. The respondent further argued that the 90-day period in Section 10, paragraph (1) within which a labor arbiter should decide a money claim is relatively short, and could deprive licensed and registered recruiters of their right to due process. The period within which the summons and the complaint would be served on foreign employees and, thereafter, the filing of the answer to the complaint would take more than 90 days. This would thereby shift on local licensed and authorized recruiters the burden of proving the defense of foreign employers. Furthermore, the respondent asserted, Section 10, paragraph 2 of the law, which provides for the joint and several liability of the officers and employees, is a bill of attainder and a violation of the right of the said corporate officers and employees to due process. Considering that such corporate officers and employees act with prior approval of the board of directors of such corporation, they should not be liable, jointly and severally, for such corporate acts. The respondent asserted that the following provisions of the law are unconstitutional: SEC. 9. Venue. A criminal action arising from illegal recruitment as defined herein shall be filed with the Regional Trial Court of the province or city where the offense was committed or where the offended party actually resides at the time of the commission of the offense: Provided, That the court where the criminal action is first filed shall acquire jurisdiction to the exclusion of other courts: Provided, however , That the aforestated provisions shall also apply to those criminal actions that have already been filed in court at the time of the effectivity of this Act. SEC. 10. Money Claims. Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, within ninety (90) calendar days after the filing of the complaint, the claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damages.
Sec. 40. The departments and agencies charged with carrying out the provisions of this Act shall, within ninety (90) days after the effectiviy of this Act, formulate the necessary rules and regulations for its effective implementation. According to the respondent, the said provisions violate Section 5(5), Article VIII of the Constitution [11] because they impair the power of the Supreme Court to promulgate rules of procedure. In their answer to the petition, the petitioners alleged, inter alia, that (a) the respondent has no cause of action for a declaratory relief; (b) the petition was premature as the rules implementing Rep. Act No. 8042 not having been released as yet; (c) the assailed provisions do not violate any provisions of the Constitution; and, (d) the law was approved by Congress in the exercise of the police power of the State. In opposition to the respondents plea for injunctive relief, the petitioners averred that: As earlier shown, the amended petition for declaratory relief is devoid of merit for failure of petitioner to demonstrate convincingly that the assailed law is unconstitutional, apart from the defect and impropriety of the petition. One who attacks a statute, alleging unconstitutionality must prove its invalidity beyond reasonable doubt (Caleon v. Agus Development Corporation, 207 SCRA 748). All reasonable doubts should be resolved in favor of the constitutionality of a statute (People v. Vera, 65 Phil. 56). This presumption of constitutionality is based on the doctrine of separation of powers which enjoin upon each department a becoming respect for the acts of the other departments (Garcia vs. Executive Secretary, 204 SCRA 516 [1991]). Necessarily, the ancillary remedy of a temporary restraining order and/or a writ of preliminary injunction prayed for must fall. Besides, an act of legislature approved by the executive is presumed to be within constitutional bounds (National Press Club v. Commission on Elections, 207 SCRA 1). [12] After the respective counsels of the parties were heard on oral arguments, the trial court issued on August 21, 1995, an order granting the petitioners plea for a writ of preliminary injunction upon a bond of P50,000. The petitioner posted the requisite bond and on August 24, 1995, the trial court issued a writ of preliminary injunction enjoining the enforcement of the following provisions of Rep. Act No. 8042 pending the termination of the proceedings: Section 2, subsections (g) and (i, 2nd par.); Section 6, subsections (a) to (m), and pars. 15 & 16; Section 7, subsections (a) & (b); Section 8; Section 9; Section 10; pars. 1 & 2; Section 11; and Section 40 of Republic Act No. 8042, otherwise known as the Migrant Workers and Overseas Filipinos Act of 1995. [13] The petitioners filed a petition for certiorari with the Court of Appeals assailing the order and the writ of preliminary injunction issued by the trial court on the following grounds: 1. Respondent ARCO-PHIL. had utterly failed to show its clear right/s or that of its member-agencies to be protected by the injunctive relief and/or violation of said rights by the enforcement of the assailed sections of R.A. 8042; 2. Respondent Judge fixed a P50,000 injunction bond which is grossly inadequate to answer for the damage which petitioner-officials may sustain, should respondent ARCO-PHIL. be finally adjudged as not being entitled thereto. [14] The petitioners asserted that the respondent is not the real party-in-interest as petitioner in the trial court. It is inconceivable how the respondent, a non-stock and non-profit corporation, could sustain direct injury as a result of the enforcement of the law. They argued that if, at all, any damage would result in the implementation of the law, it is the licensed and registered recruitment agencies and/or the unskilled Filipino migrant workers discriminated against who would sustain the said injury or damage, not the respondent. The respondent, as petitioner in the trial court, was burdened to adduce preponderant evidence of such irreparable injury, but failed to do so. The petitioners further insisted that the petition a quo was premature since the rules and regulations implementing the law had yet to be promulgated when such petition was filed. Finally, the petitioners averred that the respondent failed to establish the requisites for the issuance of
a writ of preliminary injunction against the enforcement of the law and the rules and regulations issued implementing the same. On December 5, 1997, the appellate court came out with a four-page decision dismissing the petition and affirming the assailed order and writ of preliminary injunction issued by the trial court. The appellate court, likewise, denied the petitioners motion for reconsideration of the said decision. The petitioners now come to this Court in a petition for review on certiorari on the following grounds: 1. Private respondent ARCO-PHIL. had utterly failed to show its clear right/s or that of its member-agencies to be protected by the injunctive relief and/or violation of said rights by the enforcement of the assailed sections of R.A. 8042; 2. The P50,000 injunction bond fixed by the court a quo and sustained by the Court of Appeals is grossly inadequate to answer for the damage which petitioners-officials may sustain, should private respondent ARCO-PHIL. be finally adjudged as not being entitled thereto. [15] On February 16, 1998, this Court issued a temporary restraining order enjoining the respondents from enforcing the assailed order and writ of preliminary injunction.
The Issues The core issue in this case is whether or not the trial court committed grave abuse of its discretion amounting to excess or lack of jurisdiction in issuing the assailed order and the writ of preliminary injunction on a bond of only P50,000 and whether or not the appellate court erred in affirming the trial courts order and the writ of preliminary injunction issued by it. The petitioners contend that the respondent has no locus standi. It is a non-stock, non-profit organization; hence, not the real party-in-interest as petitioner in the action. Although the respondent filed the petition in the Regional Trial Court in behalf of licensed and registered recruitment agencies, it failed to adduce in evidence a certified copy of its Articles of Incorporation and the resolutions of the said members authorizing it to represent the said agencies in the proceedings. Neither is the suit of the respondent a class suit so as to vest in it a personality to assail Rep. Act No. 8042; the respondent is service-oriented while the recruitment agencies it purports to represent are profit-oriented. The petitioners assert that the law is presumed constitutional and, as such, the respondent was burdened to make a case strong enough to overcome such presumption and establish a clear right to injunctive relief. The petitioners bewail the P50,000 bond fixed by the trial court for the issuance of a writ of preliminary injunction and affirmed by the appellate court. They assert that the amount is grossly inadequate to answer for any damages that the general public may suffer by reason of the non-enforcement of the assailed provisions of the law. The trial court committed a grave abuse of its discretion in granting the respondents plea for injunctive relief, and the appellate court erred in affirming the order and the writ of preliminary injunction issued by the trial court. The respondent, for its part, asserts that it has duly established its locus standi and its right to injunctive relief as gleaned from its pleadings and the appendages thereto. Under Section 5, Rule 58 of the Rules of Court, it was incumbent on the petitioners, as respondents in the RTC, to show cause why no injunction should issue. It avers that the injunction bond posted by the respondent was more than adequate to answer for any injury or damage the petitioners may suffer, if any, by reason of the writ of preliminary injunction issued by the RTC. In any event, the assailed provisions of Rep. Act No. 8042 exposed its members to the immediate and irreparable damage of being deprived of their right to a livelihood without due process, a property right protected under the Constitution.
The respondent contends that the commendable purpose of the law to eradicate illegal recruiters should not be done at the expense and to the prejudice of licensed and authorized recruitment agencies. The writ of preliminary injunction was necessitated by the great number of duly licensed recruitment agencies that had stopped or suspended their business operations for fear that their officers and employees would be indicted and prosecuted under the assailed oppressive penal provisions of the law, and meted excessive penalties. The respondent, likewise, urges that the Court should take judicial notice that the processing of deployment papers of overseas workers have come to a virtual standstill at the POEA.
The Courts Ruling The petition is meritorious.
The Respondent Has Locus Standi To File the Petition in the RTC in Representation of the Eleven Licensed and Registered Recruitment Agencies Impleaded in the Amended Petition The modern view is that an association has standing to complain of injuries to its members. This view fuses the legal identity of an association with that of its members. [16] An association has standing to file suit for its workers despite its lack of direct interest if its members are affected by the action. An organization has standing to assert the concerns of its constituents.[17] In Telecommunications and Broadcast Attorneys of the Philippines v. Commission on Elections, [18] we held that standing jus tertii would be recognized only if it can be shown that the party suing has some substantial relation to the third party, or that the right of the third party would be diluted unless the party in court is allowed to espouse the third partys constitutional claims. In this case, the respondent filed the petition for declaratory relief under Rule 64 of the Rules of Court for and in behalf of its eleven (11) licensed and registered recruitment agencies which are its members, and which approved separate resolutions expressly authorizing the respondent to file the said suit for and in their behalf. We note that, under its Articles of Incorporation, the respondent was organized for the purposes inter alia of promoting and supporting the growth and development of the manpower recruitment industry, both in the local and international levels; providing, creating and exploring employment opportunities for the exclusive benefit of its general membership; enhancing and promoting the general welfare and protection of Filipino workers; and, to act as the representative of any individual, company, entity or association on matters related to the manpower recruitment industry, and to perform other acts and activities necessary to accomplish the purposes embodied therein. The respondent is, thus, the appropriate party to assert the rights of its members, because it and its members are in every practical sense identical. The respondent asserts that the assailed provisions violate the constitutional rights of its members and the officers and employees thereof. The respondent is but the medium through which its individual members seek to make more effective the expression of their voices and the redress of their grievances.[19] However, the respondent has no locus standi to file the petition for and in behalf of unskilled workers. We note that it even failed to implead any unskilled workers in its petition. Furthermore, in failing to implead, as parties-petitioners, the eleven licensed and registered recruitment agencies it claimed to represent, the respondent failed to comply with Section 2 of Rule 63[20] of the Rules of Court. Nevertheless, since the eleven licensed and registered recruitment agencies for which the respondent filed the suit are specifically
named in the petition, the amended petition is deemed amended to avoid multiplicity of suits. [21]
The Assailed Order and Writ of Preliminary Injunction Is Mooted By Case Law The respondent justified its plea for injunctive relief on the allegation in its amended petition that its members are exposed to the immediate and irreparable danger of being deprived of their right to a livelihood and other constitutional rights without due process, on its claim that a great number of duly licensed recruitment agencies have stopped or suspended their operations for fear that (a) their officers and employees would be prosecuted under the unjust and unconstitutional penal provisions of Rep. Act No. 8042 and meted equally unjust and excessive penalties, including life imprisonment, for illegal recruitment and large scale illegal recruitment without regard to whether the recruitment agencies involved are licensed and/or authorized; and, (b) if the members of the respondent, which are licensed and authorized, decide to continue with their businesses, they face the stigma and the curse of being labeled illegal recruiters. In granting the respondents plea for a writ of preliminary injunction, the trial court held, without stating the factual and legal basis therefor, that the enforcement of Rep. Act No. 8042, pendente lite , would cause grave and irreparable injury to the respondent until the case is decided on its merits. We note, however, that since Rep. Act No. 8042 took effect on July 15, 1995, the Court had, in a catena of cases, applied the penal provisions in Section 6, including paragraph (m) thereof, and the last two paragraphs therein defining large scale illegal recruitment committed by officers and/or employees of recruitment agencies by themselves and in connivance with private individuals, and imposed the penalties provided in Section 7 thereof, including the penalty of life imprisonment. [22] The Informations therein were filed after preliminary investigations as provided for in Section 11 of Rep. Act No. 8042 and in venues as provided for in Section 9 of the said act. In People v. Chowdury , [23] we held that illegal recruitment is a crime of economic sabotage and must be enforced. In People v. Diaz , [24] we held that Rep. Act No. 8042 is but an amendment of the Labor Code of the Philippines and is not an ex-post facto law because it is not applied retroactively. In JMM Promotion and Management, Inc. v. Court of Appeals, [25] the issue of the extent of the police power of the State to regulate a business, profession or calling vis--vis the equal protection clause and the non-impairment clause of the Constitution were raised and we held, thus: A profession, trade or calling is a property right within the meaning of our constitutional guarantees. One cannot be deprived of the right to work and the right to make a living because these rights are property rights, the arbitrary and unwarranted deprivation of which normally constitutes an actionable wrong. Nevertheless, no right is absolute, and the proper regulation of a profession, calling, business or trade has always been upheld as a legitimate subject of a valid exercise of the police power by the state particularly when their conduct affects either the execution of legitimate governmental functions, the preservation of the State, the public health and welfare and public morals. According to the maxim, sic utere tuo ut alienum non laedas, it must of course be within the legitimate range of legislative action to define the mode and manner in which every one may so use his own property so as not to pose injury to himself or others. In any case, where the liberty curtailed affects at most the rights of property, the permissible scope of regulatory measures is certainly much wider. To pretend that licensing or accreditation requirements violates the due process clause is to ignore the settled practice, under the mantle of the police power, of regulating entry to the practice of various trades or professions. Professionals leaving for abroad are required to pass rigid written and practical exams before they are deemed fit to practice their trade. Seamen are required to take tests determining their seamanship. Locally, the Professional Regulation Commission has begun to require previously licensed doctors and other
professionals to furnish documentary proof that they had either re-trained or had undertaken continuing education courses as a requirement for renewal of their licenses. It is not claimed that these requirements pose an unwarranted deprivation of a property right under the due process clause. So long as professionals and other workers meet reasonable regulatory standards no such deprivation exists. Finally, it is a futile gesture on the part of petitioners to invoke the non-impairment clause of the Constitution to support their argument that the government cannot enact the assailed regulatory measures because they abridge the freedom to contract. In Philippine Association of Service Exporters, Inc. vs. Drilon, we held that [t]he nonimpairment clause of the Constitution must yield to the loftier purposes targeted by the government. Equally important, into every contract is read provisions of existing law, and always, a reservation of the police power for so long as the agreement deals with a subject impressed with the public welfare. A last point. Petitioners suggest that the singling out of entertainers and performing artists under the assailed department orders constitutes class legislation which violates the equal protection clause of the Constitution. We do not agree. The equal protection clause is directed principally against undue favor and individual or class privilege. It is not intended to prohibit legislation which is limited to the object to which it is directed or by the territory in which it is to operate. It does not require absolute equality, but merely that all persons be treated alike under like conditions both as to privileges conferred and liabilities imposed. We have held, time and again, that the equal protection clause of the Constitution does not forbid classification for so long as such classification is based on real and substantial differences having a reasonable relation to the subject of the particular legislation. If classification is germane to the purpose of the law, concerns all members of the class, and applies equally to present and future conditions, the classification does not violate the equal protection guarantee. [26] The validity of Section 6 of R.A. No. 8042 which provides that employees of recruitment agencies may be criminally liable for illegal recruitment has been upheld in People v. Chowdury : [27] As stated in the first sentence of Section 6 of RA 8042, the persons who may be held liable for illegal recruitment are the principals, accomplices and accessories. An employee of a company or corporation engaged in illegal recruitment may be held liable as principal, together with his employer, if it is shown that he actively and consciously participated in illegal recruitment. It has been held that the existence of the corporate entity does not shield from prosecution the corporate agent who knowingly and intentionally causes the corporation to commit a crime. The corporation obviously acts, and can act, only by and through its human agents, and it is their conduct which the law must deter. The employee or agent of a corporation engaged in unlawful business naturally aids and abets in the carrying on of such business and will be prosecuted as principal if, with knowledge of the business, its purpose and effect, he consciously contributes his efforts to its conduct and promotion, however slight his contribution may be. [28] By its rulings, the Court thereby affirmed the validity of the assailed penal and procedural provisions of Rep. Act No. 8042, including the imposable penalties therefor. Until the Court, by final judgment, declares that the said provisions are unconstitutional, the enforcement of the said provisions cannot be enjoined.
The RTC Committed Grave Abuse of Its Discretion Amounting to Excess or Lack of Jurisdiction in Issuing the Assailed Order and the Writ of Preliminary Injunction The matter of whether to issue a writ of preliminary injunction or not is addressed to the sound discretion of the trial court. However, if the court commits grave abuse of its discretion in issuing the said writ amounting to excess or lack of jurisdiction, the same may be nullified via a writ of certiorari and prohibition.
In Social Security Commission v. Judge Bayona , [29] we ruled that a law is presumed constitutional until otherwise declared by judicial interpretation. The suspension of the operation of the law is a matter of extreme delicacy because it is an interference with the official acts not only of the duly elected representatives of the people but also of the highest magistrate of the land. In Younger v. Harris, Jr., [30] the Supreme Court of the United States emphasized, thus: Federal injunctions against state criminal statutes, either in their entirety or with respect to their separate and distinct prohibitions, are not to be granted as a matter of course, even if such statutes are unconstitutional. No citizen or member of the community is immune from prosecution, in good faith, for his alleged criminal acts. The imminence of such a prosecution even though alleged to be unauthorized and, hence, unlawful is not alone ground for relief in equity which exerts its extraordinary powers only to prevent irreparable injury to the plaintiff who seeks its aid. 752 Beal v. Missouri Pacific Railroad Corp., 312 U.S. 45, 49, 61 S.Ct. 418, 420, 85 L.Ed. 577. And similarly, in Douglas, supra, we made clear, after reaffirming this rule, that: It does not appear from the record that petitioners have been threatened with any injury other than that incidental to every criminal proceeding brought lawfully and in good faith 319 U.S., at 164, 63 S.Ct., at 881.[31] The possible unconstitutionality of a statute, on its face, does not of itself justify an injunction against good faith attempts to enforce it, unless there is a showing of bad faith, harassment, or any other unusual circumstance that would call for equitable relief. [32] The on its face invalidation of statutes has been described as manifestly strong medicine, to be employed sparingly and only as a last resort, and is generally disfavored. [33] To be entitled to a preliminary injunction to enjoin the enforcement of a law assailed to be unconstitutional, the party must establish that it will suffer irreparable harm in the absence of injunctive relief and must demonstrate that it is likely to succeed on the merits, or that there are sufficiently serious questions going to the merits and the balance of hardships tips decidedly in its favor. [34] The higher standard reflects judicial deference toward legislation or regulations developed through presumptively reasoned democratic processes. Moreover, an injunction will alter, rather than maintain, the status quo, or will provide the movant with substantially all the relief sought and that relief cannot be undone even if the defendant prevails at a trial on the merits.[35] Considering that injunction is an exercise of equitable relief and authority, in assessing whether to issue a preliminary injunction, the courts must sensitively assess all the equities of the situation, including the public interest . [36] In litigations between governmental and private parties, courts go much further both to give and withhold relief in furtherance of public interest than they are accustomed to go when only private interests are involved. [37] Before the plaintiff may be entitled to injunction against future enforcement, he is burdened to show some substantial hardship.[38] The fear or chilling effect of the assailed penal provisions of the law on the members of the respondent does not by itself justify prohibiting the State from enforcing them against those whom the State believes in good faith to be punishable under the laws: Just as the incidental chilling effect of such statutes does not automatically render them unconstitutional, so the chilling effect that admittedly can result from the very existence of certain laws on the statute books does not in itself justify prohibiting the State from carrying out the important and necessary task of enforcing these laws against socially harmful conduct that the State believes in good faith to be punishable under its laws and the Constitution. [39] It must be borne in mind that subject to constitutional limitations, Congress is empowered to define what acts or omissions shall constitute a crime and to prescribe punishments therefor.[40] The power is inherent in Congress and is part of the sovereign power of the State to maintain peace and order. Whatever views may be entertained regarding the severity of punishment, whether one believes in its efficiency or its futility, these are peculiarly questions of legislative policy. [41] The comparative gravity of crimes and whether their
consequences are more or less injurious are matters for the State and Congress itself to determine.[42] Specification of penalties involves questions of legislative policy. [43] Due process prohibits criminal stability from shifting the burden of proof to the accused, punishing wholly passive conduct, defining crimes in vague or overbroad language and failing to grant fair warning of illegal conduct. [44] Class legislation is such legislation which denies rights to one which are accorded to others, or inflicts upon one individual a more severe penalty than is imposed upon another in like case offending. [45] Bills of attainder are legislative acts which inflict punishment on individuals or members of a particular group without a judicial trial. Essential to a bill of attainder are a specification of certain individuals or a group of individuals, the imposition of a punishment, penal or otherwise, and the lack of judicial trial. [46] Penalizing unlicensed and licensed recruitment agencies and their officers and employees and their relatives employed in government agencies charged with the enforcement of the law for illegal recruitment and imposing life imprisonment for those who commit large scale illegal recruitment is not offensive to the Constitution. The accused may be convicted of illegal recruitment and large scale illegal recruitment only if, after trial, the prosecution is able to prove all the elements of the crime charged. [47] The possibility that the officers and employees of the recruitment agencies, which are members of the respondent, and their relatives who are employed in the government agencies charged in the enforcement of the law, would be indicted for illegal recruitment and, if convicted sentenced to life imprisonment for large scale illegal recruitment, absent proof of irreparable injury, is not sufficient on which to base the issuance of a writ of preliminary injunction to suspend the enforcement of the penal provisions of Rep. Act No. 8042 and avert any indictments under the law. [48] The normal course of criminal prosecutions cannot be blocked on the basis of allegations which amount to speculations about the future. [49] There is no allegation in the amended petition or evidence adduced by the respondent that the officers and/or employees of its members had been threatened with any indictments for violations of the penal provisions of Rep. Act No. 8042. Neither is there any allegation therein that any of its members and/or their officers and employees committed any of the acts enumerated in Section 6(a) to (m) of the law for which they could be indicted. Neither did the respondent adduce any evidence in the RTC that any or all of its members or a great number of other duly licensed and registered recruitment agencies had to stop their business operations because of fear of indictments under Sections 6 and 7 of Rep. Act No. 8042. The respondent merely speculated and surmised that licensed and registered recruitment agencies would close shop and stop business operations because of the assailed penal provisions of the law. A writ of preliminary injunction to enjoin the enforcement of penal laws cannot be based on such conjectures or speculations. The Court cannot take judicial notice that the processing of deployment papers of overseas workers have come to a virtual standstill at the POEA because of the assailed provisions of Rep. Act No. 8042. The respondent must adduce evidence to prove its allegation, and the petitioners accorded a chance to adduce controverting evidence. The respondent even failed to adduce any evidence to prove irreparable injury because of the enforcement of Section 10(1)(2) of Rep. Act No. 8042. Its fear or apprehension that, because of time constraints, its members would have to defend foreign employees in cases before the Labor Arbiter is based on speculations. Even if true, such inconvenience or difficulty is hardly irreparable injury. The trial court even ignored the public interest involved in suspending the enforcement of Rep. Act No. 8042 vis--vis the eleven licensed and registered recruitment agencies represented by the respondent. In People v. Gamboa , [50] we emphasized the primary aim of Rep. Act No. 8042: Preliminarily, the proliferation of illegal job recruiters and syndicates preying on innocent people anxious to obtain employment abroad is one of the primary considerations that led to the enactment of The Migrant Workers and Overseas Filipinos Act of 1995. Aimed at affording greater protection to overseas Filipino workers, it is a significant improvement on existing laws in the recruitment and placement of workers for overseas employment. Otherwise
known as the Magna Carta of OFWs, it broadened the concept of illegal recruitment under the Labor Code and provided stiffer penalties thereto, especially those that constitute economic sabotage, i.e., Illegal Recruitment in Large Scale and Illegal Recruitment Committed by a Syndicate .[51] By issuing the writ of preliminary injunction against the petitioners sans any evidence, the trial court frustrated, albeit temporarily, the prosecution of illegal recruiters and allowed them to continue victimizing hapless and innocent people desiring to obtain employment abroad as overseas workers, and blocked the attainment of the salutary policies [52] embedded in Rep. Act No. 8042. It bears stressing that overseas workers, land-based and sea-based, had been remitting to the Philippines billions of dollars which over the years had propped the economy. In issuing the writ of preliminary injunction, the trial court considered paramount the interests of the eleven licensed and registered recruitment agencies represented by the respondent, and capriciously overturned the presumption of the constitutionality of the assailed provisions on the barefaced claim of the respondent that the assailed provisions of Rep. Act No. 8042 are unconstitutional. The trial court committed a grave abuse of its discretion amounting to excess or lack of jurisdiction in issuing the assailed order and writ of preliminary injunction. It is for this reason that the Court issued a temporary restraining order enjoining the enforcement of the writ of preliminary injunction issued by the trial court. IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed decision of the appellate court is REVERSED AND SET ASIDE. The Order of the Regional Trial Court dated August 21, 1995 in Civil Case No. Q-95-24401 and the Writ of Preliminary Injunction issued by it in the said case on August 24, 1995 are NULLIFIED. No costs. SO ORDERED. Quisumbing, (Acting Chairman), Austria-Martinez, and Tinga, JJ., concur . Puno, (Chairman), J., on official leave.
[1] Penned by Associate Justice Jesus M. Elbinias with Associate Justices Hector L. Hofilea and Omar U. Amin concurring. [2] Penned by Judge Teodoro P. Regino, who was later promoted Associate Justice of the Court of Appeals. [3] Records, Vol. I, pp. 86-87. [4] Section 2, paragraph (g). [5] Section 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the
equal protection of the laws.

[6] Sec. 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous
social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.
[7] Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity
and actively promote its total development.

[8] Sec. 3. The State shall defend the following:
(3) The right of the family to a family living wage and income.
[9] Sec. 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death
penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua . (Section 19, Article III of the Constitution.)
[10]
Sec. 22. No ex-post facto law or bill of attainder shall be enacted.

[11] (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all
courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.
[12] Records, Vol. I, p. 223. [13] Id. at 235. [14] CA Rollo, p. 10. [15] Rollo, p. 19. [16] W.C.M. Winston Co., Inc. v. Bernardi, 730 F2d 486 (1984), citing NACCP v. Alabama, 2 L.ed.2d 1488 (1958). [17] Maite v. Chicago Board of Education, 415 NE2d 1034 (1980), cited in DeWitt County Taxpayers Association v. The County
Board of Deliot County, 445 NE2d 509 (1983).

[18] 289 SCRA 337 (1998). [19] National Associates for the Advancement of Colored People v. State of Alabama, 2 L.Ed.2d 1488 (1958). [20] SEC. 2. Parties . All persons who have or claim any interest which would be affected by the declaration shall be made parties;
and no declaration shall, except as otherwise provided in these Rules, prejudice the rights of persons not parties to the action.
[21] SEC. 11. Misjoinder and non-joinder of parties . Neither misjoinder nor non-joinder of parties is ground for dismissal of an
action. Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. Any claim against a misjoined party may be severed and proceeded with separately.
[22] People v. Navarra, 352 SCRA 84 (2001); People v. Fajardo, 345 SCRA 395 (2000); People v. Saulo, 344 SCRA 605 (2000);
People v. Gamboa, 341 SCRA 451 (2000); People v. Banzales, 336 SCRA 64 (2000); People v. Ordoo, 335 SCRA 331 (2000); People v. Mercado de Arabia, 332 SCRA 49 (2000); People v. Moreno, 314 SCRA 556 (1999); People v. Castillon, 306 SCRA 271 (1999); People v. Mercado, 304 SCRA 504 (1999); People v. Peralta, 283 SCRA 81 (1997); People v. Ortiz-Miyake, 279 SCRA 180 (1997); People v. Villas, 277 SCRA 391 (1997); People v. Santos, 276 SCRA 329 (1997); People v. Tan Tiong Meng, 271 SCRA 125 (1997); People v. Maozca, 269 SCRA 513 (1997); People v. Seoron, 267 SCRA 278 (1997); People v. De Leon, 267 SCRA 644 (1997); People v. Benemerito, 264 SCRA 677 (1996); People v. Pabalan, 262 SCRA 574 (1996); People v. Calonzo, 262 SCRA 534 (1996).
[23] 325 SCRA 572 (2000). [24] 259 SCRA 441 (1996). [25] 260 SCRA 319 (1996). [26] Id. at 330-332. [27] Supra at note 23. [28] Supra. [29] 5 SCRA 126 (1962). [30] 27 L.Ed.2d 669 (1971). [31] Ibid. [32] Id.; Fieger v. Thomas, 74 F.3d 740 (1996). [33] Broaderick v. Oklahoma, 37 L.Ed.2d 841.
[34] Latino Officers Association v. Safir, 170 F.3d 167 (1999). [35] Forest City Daly Housing, Inc. v. Town of North Hempstead, 175 F.3d 144 (1999). [36] Beal v. Stern, 184 F.3d 117 (1999). [37] Maryland Commission on Human Relations v. Downey Communications, Inc., 110 Md.App. 493, 678 A.2d 55 (1996). [38] Croselto v. State Bar of Wisconsin, 12 F.3d 396 (1993). [39] Younger v. Harris, Jr., supra . [40] U.S. v. Schnell, 982 F.2d 216 (1992); United States v. Bogle, 689 F.Supp. 1121 (1988). [41] United States v. Bogle, supra . [42] Collins v. Joluston, 59 L.Ed. 1071 (1915). [43] Gore v. United States, 62 L.Ed.2d 1405 (1958). [44] U.S. v. Schnell, supra . [45] State v. Murray, 175 NE 666 (1919). [46] Misolas v. Panga, 181 SCRA 648 (1990). [47] The essential elements for illegal recruitment are:
(1) the offender undertakes either any activity within the meaning of recruitment and placement defined under Art. 13(b), or any of the prohibited practices enumerated under Article 34 of the Labor Code; and (2) he has no valid license or authority required by law to enable one to lawfully engage in recruitment and placement of workers. [People v. Pascua, 366 SCRA 505 (2001)]. The essential elements for large scale illegal recruitment are: (1) the accused engages in the recruitment and placement of workers, as defined under Article 13(b) or in any prohibited activities under Article 34 of the Labor Code; (2) accused has not complied with the guidelines issued by the Secretary of Labor and Employment, particularly with respect to the securing of a license or an authority to recruit and deploy workers, whether locally or overseas; and (3) accused commits the same against three (3) or more persons, individually or as a group. [People v. Saulo, 344 SCRA 605 (2000)].
[48] See Beal v. Pacific Railroad Corporation, 85 L.Ed. 577, cited in Younger v. Harris, Jr., supra . [49] Boyle v. Landry, 27 L.Ed.2d 696 (1971). [50] 341 SCRA 451 (2000). [51] Id. at 456-458. [52] (a) In the pursuit of an independent foreign policy and while considering national sovereignty, territorial integrity, national
interest and the right to self-determination paramount in its relations with other states, the State shall, at all times, uphold the dignity of its citizens whether in country or overseas, in general, and Filipino migrant workers, in particular. (b) The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. Towards this end, the State shall provide adequate and timely social, economic and legal services to Filipino migrant workers. (c) While recognizing the significant contribution of Filipino migrant workers to the national economy through their foreign exchange remittances, the State does not promote overseas employment as a means to sustain economic growth and achieve national development. The existence of the overseas employment program rests solely on the assurance that the dignity and fundamental human rights and freedoms of the Filipino citizen shall not, at any time, be compromised or violated. The State, therefore, shall continuously create local employment opportunities and promote the equitable distribution of wealth and the benefits of development.
(d) The State affirms the fundamental equality before the law of women and men and the significant role of women in nationbuilding. Recognizing the contribution of overseas migrant women workers and their particular vulnerabilities, the State shall apply gender sensitive criteria in the formulation and implementation of policies and programs affecting migrant workers and the composition of bodies tasked for the welfare of migrant workers. (e) Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty. In this regard, it is imperative that an effective mechanism be instituted to ensure that the rights and interest of distressed overseas Filipinos, in general, and Filipino migrant workers, in particular, documented or undocumented, are adequately protected and safeguarded. (f) The right of Filipino migrant workers and all overseas Filipinos to participate in the democratic decision-making processes of the State and to be represented in institutions relevant to overseas employment is recognized and guaranteed. (g) The State recognizes that the ultimate protection to all migrant workers is the possession of skills. Pursuant to this and as soon as practicable, the government shall deploy and/or allow the deployment only of skilled Filipino workers. (h) Non-governmental organizations, duly recognized as legitimate, are partners of the State in the protection of Filipino migrant workers and in the promotion of their welfare. The State shall cooperate with them in a spirit of trust and mutual respect. (i) Government fees and other administrative costs of recruitment, introduction, placement and assistance to migrant workers shall be rendered free without prejudice to the provision of Section 36 hereof. Nonetheless, the deployment of Filipino overseas workers, whether land-based or sea-based, by local service contractors and manning agencies employing them shall be encouraged. Appropriate incentives may be extended to them. (Records, Vol. I, p. 35.)
G.R. No. 113375 May 5, 1994 KILOSBAYAN, INCORPORATED, JOVITO R. SALONGA, CIRILO A. RIGOS, ERME CAMBA, EMILIO C. CAPULONG, JR., JOSE T. APOLO, EPHRAIM TENDERO, FERNANDO SANTIAGO, JOSE ABCEDE, CHRISTINE TAN, FELIPE L. GOZON, RAFAEL G. FERNANDO, RAOUL V. VICTORINO, JOSE CUNANAN, QUINTIN S. DOROMAL, SEN. FREDDIE WEBB, SEN. WIGBERTO TAADA, and REP. JOKER P. ARROYO,petitioners, vs. TEOFISTO GUINGONA, JR., in his capacity as Executive Secretary, Office of the President; RENATO CORONA, in his capacity as Assistant Executive Secretary and Chairman of the Presidential review Committee on the Lotto, Office of the President; PHILIPPINE CHARITY SWEEPSTAKES OFFICE; and PHILIPPINE GAMING MANAGEMENT CORPORATION, respondents. Jovito R. Salonga, Fernando Santiago, Emilio C. Capulong, Jr. and Felipe L. Gozon for petitioners. Renato L. Cayetano and Eleazar B. Reyes for PGMC. Gamaliel G. Bongco, Oscar Karaan and Jedideoh Sincero for intervenors.
DAVIDE, JR., J.: This is a special civil action for prohibition and injunction, with a prayer for a temporary restraining order and preliminary injunction, which seeks to prohibit and restrain the implementation of the "Contract of Lease" executed by the Philippine Charity Sweepstakes Office (PCSO) and the Philippine Gaming Management Corporation (PGMC) in connection with the on- line lottery system, also known as "lotto." Petitioner Kilosbayan, Incorporated (KILOSBAYAN) avers that it is a non-stock domestic corporation composed of civic-spirited citizens, pastors, priests, nuns, and lay leaders who are committed to the cause of truth, justice, and national renewal. The rest of the petitioners, except Senators Freddie Webb and Wigberto Taada and Representative Joker P. Arroyo, are suing in their capacities as members of the Board of Trustees of KILOSBAYAN and as taxpayers and concerned citizens. Senators Webb and Taada and Representative Arroyo are suing in their capacities as members of Congress and as taxpayers and concerned citizens of the Philippines. The pleadings of the parties disclose the factual antecedents which triggered off the filing of this petition.
Pursuant to Section 1 of the charter of the PCSO (R.A. No. 1169, as amended by B.P. Blg. 42) which grants it the authority to hold and conduct "charity sweepstakes races, lotteries and other similar activities," the PCSO decided to establish an on- line lottery system for the purpose of increasing its revenue base and diversifying its sources of funds. Sometime before March 1993, after learning that the PCSO was interested in operating an on-line lottery system, the Berjaya Group Berhad, "a multinational company and one of the ten largest public companies in Malaysia," long "engaged in, among others, successful lottery operations in Asia, running both Lotto and Digit games, thru its subsidiary, Sports Toto Malaysia," with its "affiliate, the International Totalizator Systems, Inc., . . . an American public company engaged in the international sale or provision of computer systems, softwares, terminals, training and other technical services to the gaming industry," "became interested to offer its services and resources to PCSO." As an initial step, Berjaya Group Berhad (through its individual nominees) organized with some Filipino investors in March 1993 a Philippine corporation known as the Philippine Gaming Management Corporation (PGMC), which "was intended to be the medium through which the technical and management services required for the project would be offered and delivered to PCSO." 1 Before August 1993, the PCSO formally issued a Request for Proposal (RFP) for the Lease Contract of an on-line lottery system for the PCSO. 2 Relevant provisions of the RFP are the following: 1. EXECUTIVE SUMMARY xxx xxx xxx 1.2. PCSO is seeking a suitable contractor which shall build, at its own expense, all the facilities ('Facilities') needed to operate and maintain a nationwide on-line lottery system. PCSO shall lease the Facilities for a fixed percentage ofquarterly gross receipts. All receipts from ticket sales shall be turned over directly to PCSO. All capital, operating expenses and expansion expenses and risks shall be for the exclusive account of the Lessor. xxx xxx xxx 1.4. The lease shall be for a period not exceeding fifteen (15) years. 1.5. The Lessor is expected to submit a comprehensive nationwide lottery development plan ("Development Plan") which will include the game, the marketing of the games, and the logistics to introduce the games to all the cities and municipalities of the country within five (5) years. xxx xxx xxx 1.7. The Lessor shall be selected based on its technical expertise, hardware and software capability, maintenance support, and financial resources. The Development Plan shall have a substantial bearing on the choice of the Lessor. The Lessor shall be a domestic corporation, with at least sixty percent (60%) of its shares owned by Filipino shareholders. xxx xxx xxx
The Office of the President, the National Disaster Control Coordinating Council, the Philippine National Police, and the National Bureau of Investigation shall be authorized to use the nationwide telecommunications system of the Facilities Free of Charge. 1.8. Upon expiration of the lease, the Facilities shall be owned by PCSO without any additional consideration. 3 xxx xxx xxx 2.2. OBJECTIVES The objectives of PCSO in leasing the Facilities from a private entity are as follows: xxx xxx xxx 2.2.2. Enable PCSO to operate a nationwide on-line Lottery system at no expense or risk to the government. xxx xxx xxx 2.4. DUTIES AND RESPONSIBILITIES OF THE LESSOR xxx xxx xxx 2.4.2. THE LESSOR The Proponent is expected to furnish and maintain the Facilities, including the personnel needed to operate the computers, the communications network and sales offices under a build-lease basis. The printing of tickets shall be undertaken under the supervision and control of PCSO. The Facilities shall enable PCSO to computerize the entire gaming system. The Proponent is expected to formulate and design consumer-oriented Master Games Plan suited to the marketplace, especially geared to Filipino gaming habits and preferences. In addition, the Master Games Plan is expected to include a Product Plan for each game and explain how each will be introduced into the market. This will be an integral part of the Development Plan which PCSO will require from the Proponent. xxx xxx xxx The Proponent is expected to provide upgrades to modernize the entire gaming system over the life ofthe lease contract. The Proponent is expected to provide technology transfer to PCSO technical personnel. 4 7. GENERAL GUIDELINES FOR PROPONENTS xxx xxx xxx
Finally, the Proponent must be able to stand the acid test of proving that it is an entity able to take on the role of responsible maintainer of the on-line lottery system, and able to achieve PSCO's goal of formalizing an on-line lottery system to achieve its mandated objective. 5 xxx xxx xxx 16. DEFINITION OF TERMS Facilities: All capital equipment, computers, terminals, software, nationwide telecommunication network, ticket sales offices, furnishings, and fixtures; printing costs; cost of salaries and wages; advertising and promotion expenses; maintenance costs; expansion and replacement costs; security and insurance, and all other related expenses needed to operate nationwide on-line lottery system. 6 Considering the above citizenship requirement, the PGMC claims that the Berjaya Group "undertook to reduce its equity stakes in PGMC to 40%," by selling 35% out of the original 75% foreign stockholdings to local investors. On 15 August 1993, PGMC submitted its bid to the PCSO. 7 The bids were evaluated by the Special Pre-Qualification Bids and Awards Committee (SPBAC) for the on-line lottery and its Bid Report was thereafter submitted to the Office of the President. 8 The submission was preceded by complaints by the Committee's Chairperson, Dr. Mita Pardo de Tavera. 9 On 21 October 1993, the Office of the President announced that it had given the respondent PGMC the go-signal to operate the country's on-line lottery system and that the corresponding implementing contract would be submitted not later than 8 November 1993 "for final clearance and approval by the Chief Executive." 10 This announcement was published in the Manila Standard, Philippine Daily Inquirer, and the Manila Times on 29 October 1993. 11 On 4 November 1993, KILOSBAYAN sent an open letter to Presidential Fidel V. Ramos strongly opposing the setting up to the on-line lottery system on the basis of serious moral and ethical considerations. 12 At the meeting of the Committee on Games and Amusements of the Senate on 12 November 1993, KILOSBAYAN reiterated its vigorous opposition to the on-line lottery on account of its immorality and illegality. 13 On 19 November 1993, the media reported that despite the opposition, "Malacaang will push through with the operation of an on-line lottery system nationwide" and that it is actually the respondent PCSO which will operate the lottery while the winning corporate bidders are merely "lessors." 14 On 1 December 1993, KILOSBAYAN requested copies of all documents pertaining to the lottery award from Executive Secretary Teofisto Guingona, Jr. In his answer of 17 December 1993, the Executive Secretary informed KILOSBAYAN that the requested documents would be duly transmitted before the end of the month. 15. However, on that same date, an agreement denominated as "Contract of Lease"
was finally executed by respondent PCSO and respondent PGMC. 16 The President, per the press statement issued by the Office of the President, approved it on 20 December 1993. 17 In view of their materiality and relevance, we quote the following salient provisions of the Contract of Lease: 1. DEFINITIONS The following words and terms shall have the following respective meanings: 1.1 Rental Fee Amount to be paid by PCSO to the LESSOR as compensation for the fulfillment of the obligations of the LESSOR under this Contract, including, but not limited to the lease of the Facilities. xxx xxx xxx 1.3 Facilities All capital equipment, computers, terminals, software (including source codes for the On-Line Lottery application software for the terminals, telecommunications and central systems), technology, intellectual property rights, telecommunications network, and furnishings and fixtures. 1.4 Maintenance and Other Costs All costs and expenses relating to printing, manpower, salaries and wages, advertising and promotion, maintenance, expansion and replacement, security and insurance, and all other related expenses needed to operate an On-Line Lottery System, which shall be for the account of the LESSOR. All expenses relating to the setting-up, operation and maintenance of ticket sales offices of dealers and retailers shall be borne by PCSO's dealers and retailers. 1.5 Development Plan The detailed plan of all games, the marketing thereof, number of players, value of winnings and the logistics required to introduce the games, including the Master Games Plan as approved by PCSO, attached hereto as Annex "A", modified as necessary by the provisions of this Contract. xxx xxx xxx 1.8 Escrow Deposit The proposal deposit in the sum of Three Hundred Million Pesos (P300,000,000.00) submitted by the LESSOR to PCSO pursuant to the requirements of the Request for Proposals. 2. SUBJECT MATTER OF THE LEASE The LESSOR shall build, furnish and maintain at its own expense and risk the Facilities for the On-Line Lottery System of PCSO in the Territory on an exclusive basis. The LESSOR shall bear all Maintenance and Other Costs as defined herein. xxx xxx xxx 3. RENTAL FEE
For and in consideration of the performance by the LESSOR of its obligations herein, PCSO shall pay LESSOR a fixed Rental Fee equal to four point nine percent (4.9%) of gross receipts from ticket sales, payable net of taxes required by law to be withheld, on a semi-monthly basis. Goodwill, franchise and similar fees shall belong to PCSO. 4. LEASE PERIOD The period of the lease shall commence ninety (90) days from the date of effectivity of this Contract and shall run for a period of eight (8) years thereafter, unless sooner terminated in accordance with this Contract. 5. RIGHTS AND OBLIGATIONS OF PCSO AS OPERATOR OF THE ON-LINE LOTTERY SYSTEM PCSO shall be the sole and individual operator of the On-Line Lottery System. Consequently: 5.1 PCSO shall have sole responsibility to decide whether to implement, fully or partially, the Master Games Plan of the LESSOR. PCSO shall have the sole responsibility to determine the time for introducing new games to the market. The Master Games Plan included in Annex "A" hereof is hereby approved by PCSO. 5.2 PCSO shall have control over revenues and receipts of whatever nature from the On-Line Lottery System. After paying the Rental Fee to the LESSOR, PCSO shall have exclusive responsibility to determine the Revenue Allocation Plan; Provided, that the same shall be consistent with the requirement of R.A. No. 1169, as amended, which fixes a prize fund of fifty five percent (55%) on the average. 5.3 PCSO shall have exclusive control over the printing of tickets, including but not limited to the design, text, and contents thereof. 5.4 PCSO shall have sole responsibility over the appointment of dealers or retailers throughout the country. PCSO shall appoint the dealers and retailers in a timely manner with due regard to the implementation timetable of the On-Line Lottery System. Nothing herein shall preclude the LESSOR from recommending dealers or retailers for appointment by PCSO, which shall act on said recommendation within forty-eight (48) hours. 5.5 PCSO shall designate the necessary personnel to monitor and audit the daily performance of the OnLine Lottery System. For this purpose, PCSO designees shall be given, free of charge, suitable and adequate space, furniture and fixtures, in all offices of the LESSOR, including but not limited to its headquarters, alternate site, regional and area offices. 5.6 PCSO shall have the responsibility to resolve, and exclusive jurisdiction over, all matters involving the operation of the On-Line Lottery System not otherwise provided in this Contract. 5.7 PCSO shall promulgate procedural and coordinating rules governing all activities relating to the OnLine Lottery System.
5.8 PCSO will be responsible for the payment of prize monies, commissions to agents and dealers, and taxes and levies (if any) chargeable to the operator of the On-Line Lottery System. The LESSOR will bear all other Maintenance and Other Costs, except as provided in Section 1.4. 5.9 PCSO shall assist the LESSOR in the following: 5.9.1 Work permits for the LESSOR's staff; 5.9.2 Approvals for importation of the Facilities; 5.9.3 Approvals and consents for the On-Line Lottery System; and 5.9.4 Business and premises licenses for all offices of the LESSOR and licenses for the telecommunications network. 5.10 In the event that PCSO shall pre-terminate this Contract or suspend the operation of the On-Line Lottery System, in breach of this Contract and through no fault of the LESSOR, PCSO shall promptly, and in any event not later than sixty (60) days, reimburse the LESSOR the amount of its total investment cost associated with the On-Line Lottery System, including but not limited to the cost of the Facilities, and further compensate the LESSOR for loss of expected net profit after tax, computed over the unexpired term of the lease. 6. DUTIES AND RESPONSIBILITIES OF THE LESSOR The LESSOR is one of not more than three (3) lessors of similar facilities for the nationwide On-Line Lottery System of PCSO. It is understood that the rights of the LESSOR are primarily those of a lessor of the Facilities, and consequently, all rights involving the business aspects of the use of the Facilities are within the jurisdiction of PCSO. During the term of the lease, the LESSOR shall. 6.1 Maintain and preserve its corporate existence, rights and privileges, and conduct its business in an orderly, efficient, and customary manner. 6.2 Maintain insurance coverage with insurers acceptable to PCSO on all Facilities. 6.3 Comply with all laws, statues, rules and regulations, orders and directives, obligations and duties by which it is legally bound. 6.4 Duly pay and discharge all taxes, assessments and government charges now and hereafter imposed of whatever nature that may be legally levied upon it. 6.5 Keep all the Facilities in fail safe condition and, if necessary, upgrade, replace and improve the Facilities from time to time as new technology develops, in order to make the On-Line Lottery System more cost-effective and/or competitive, and as may be required by PCSO shall not impose such requirements unreasonably nor arbitrarily. 6.6 Provide PCSO with management terminals which will allow real-time monitoring of the On-Line Lottery System.
6.7 Upon effectivity of this Contract, commence the training of PCSO and other local personnel and the transfer of technology and expertise, such that at the end of the term of this Contract, PCSO will be able to effectively take-over the Facilities and efficiently operate the On-Line Lottery System. 6.8 Undertake a positive advertising and promotions campaign for both institutional and product lines without engaging in negative advertising against other lessors. 6.9 Bear all expenses and risks relating to the Facilities including, but not limited to, Maintenance and Other Costs and: xxx xxx xxx 6.10 Bear all risks if the revenues from ticket sales, on an annualized basis, are insufficient to pay the entire prize money. 6.11 Be, and is hereby, authorized to collect and retain for its own account, a security deposit from dealers and retailers, in an amount determined with the approval of PCSO, in respect of equipment supplied by the LESSOR. PCSO's approval shall not be unreasonably withheld. xxx xxx xxx 6.12 Comply with procedural and coordinating rules issued by PCSO. 7. REPRESENTATIONS AND WARRANTIES The LESSOR represents and warrants that: 7.1 The LESSOR is corporation duly organized and existing under the laws of the Republic of the Philippines, at least sixty percent (60%) of the outstanding capital stock of which is owned by Filipino shareholders. The minimum required Filipino equity participation shall not be impaired through voluntary or involuntary transfer, disposition, or sale of shares of stock by the present stockholders. 7.2 The LESSOR and its Affiliates have the full corporate and legal power and authority to own and operate their properties and to carry on their business in the place where such properties are now or may be conducted. . . . 7.3 The LESSOR has or has access to all the financing and funding requirements to promptly and effectively carry out the terms of this Contract. . . . 7.4 The LESSOR has or has access to all the managerial and technical expertise to promptly and effectively carry out the terms of this Contract. . . . xxx xxx xxx 10. TELECOMMUNICATIONS NETWORK
The LESSOR shall establish a telecommunications network that will connect all municipalities and cities in the Territory in accordance with, at the LESSOR's option, either of the LESSOR's proposals (or a combinations of both such proposals) attached hereto as Annex "B," and under the following PCSO schedule: xxx xxx xxx PCSO may, at its option, require the LESSOR to establish the telecommunications network in accordance with the above Timetable in provinces where the LESSOR has not yet installed terminals. Provided, that such provinces have existing nodes. Once a municipality or city is serviced by land lines of a licensed public telephone company, and such lines are connected to Metro Manila, then the obligation of the LESSOR to connect such municipality or city through a telecommunications network shall cease with respect to such municipality or city. The voice facility will cover the four offices of the Office of the President, National Disaster Control Coordinating Council, Philippine National Police and the National Bureau of Investigation, and each city and municipality in the Territory except Metro Manila, and those cities and municipalities which have easy telephone access from these four offices. Voice calls from the four offices shall be transmitted via radio or VSAT to the remote municipalities which will be connected to this voice facility through wired network or by radio. The facility shall be designed to handle four private conversations at any one time. xxx xxx xxx 13. STOCK DISPERSAL PLAN Within two (2) years from the effectivity of this Contract, the LESSOR shall cause itself to be listed in the local stock exchange and offer at least twenty five percent (25%) of its equity to the public. 14. NON-COMPETITION The LESSOR shall not, directly or indirectly, undertake any activity or business in competition with or adverse to the On-Line Lottery System of PCSO unless it obtains the latter's prior written consent thereto. 15. HOLD HARMLESS CLAUSE 15.1 The LESSOR shall at all times protect and defend, at its cost and expense, PCSO from and against any and all liabilities and claims for damages and/or suits for or by reason of any deaths of, or any injury or injuries to any person or persons, or damages to property of any kind whatsoever, caused by the LESSOR, its subcontractors, its authorized agents or employees, from any cause or causes whatsoever. 15.2 The LESSOR hereby covenants and agrees to indemnify and hold PCSO harmless from all liabilities, charges, expenses (including reasonable counsel fees) and costs on account of or by reason of any such death or deaths, injury or injuries, liabilities, claims, suits or losses caused by the LESSOR's fault or negligence.
15.3 The LESSOR shall at all times protect and defend, at its own cost and expense, its title to the facilities and PCSO's interest therein from and against any and all claims for the duration of the Contract until transfer to PCSO of ownership of the serviceable Facilities. 16. SECURITY 16.1 To ensure faithful compliance by the LESSOR with the terms of the Contract, the LESSOR shall secure a Performance Bond from a reputable insurance company or companies acceptable to PCSO. 16.2 The Performance Bond shall be in the initial amount of Three Hundred Million Pesos (P300,000,000.00), to its U.S. dollar equivalent, and shall be renewed to cover the duration of the Contract. However, the Performance Bond shall be reduced proportionately to the percentage of unencumbered terminals installed; Provided, that the Performance Bond shall in no case be less than One Hundred Fifty Million Pesos (P150,000,000.00). 16.3 The LESSOR may at its option maintain its Escrow Deposit as the Performance Bond. . . . 17. PENALTIES 17.1 Except as may be provided in Section 17.2, should the LESSOR fail to take remedial measures within seven (7) days, and rectify the breach within thirty (30) days, from written notice by PCSO of any wilfull or grossly negligent violation of the material terms and conditions of this Contract, all unencumbered Facilities shall automatically become the property of PCSO without consideration and without need for further notice or demand by PCSO. The Performance Bond shall likewise be forfeited in favor of PCSO. 17.2 Should the LESSOR fail to comply with the terms of the Timetables provided in Section 9 and 10, it shall be subject to an initial Penalty of Twenty Thousand Pesos (P20,000.00), per city or municipality per every month of delay; Provided, that the Penalty shall increase, every ninety (90) days, by the amount of Twenty Thousand Pesos (P20,000.00) per city or municipality per month, whilst shall failure to comply persists. The penalty shall be deducted by PCSO from the rental fee. xxx xxx xxx 20. OWNERSHIP OF THE FACILITIES After expiration of the term of the lease as provided in Section 4, the Facilities directly required for the On-Line Lottery System mentioned in Section 1.3 shall automatically belong in full ownership to PCSO without any further consideration other than the Rental Fees already paid during the effectivity of the lease. 21. TERMINATION OF THE LEASE PCSO may terminate this Contract for any breach of the material provisions of this Contract, including the following:
21.1 The LESSOR is insolvent or bankrupt or unable to pay its debts, stops or suspends or threatens to stop or suspend payment of all or a material part of its debts, or proposes or makes a general assignment or an arrangement or compositions with or for the benefit of its creditors; or 21.2 An order is made or an effective resolution passed for the winding up or dissolution of the LESSOR or when it ceases or threatens to cease to carry on all or a material part of its operations or business; or 21.3 Any material statement, representation or warranty made or furnished by the LESSOR proved to be materially false or misleading; said termination to take effect upon receipt of written notice of termination by the LESSOR and failure to take remedial action within seven (7) days and cure or remedy the same within thirty (30) days from notice. Any suspension, cancellation or termination of this Contract shall not relieve the LESSOR of any liability that may have already accrued hereunder. xxx xxx xxx Considering the denial by the Office of the President of its protest and the statement of Assistant Executive Secretary Renato Corona that "only a court injunction can stop Malacaang," and the imminent implementation of the Contract of Lease in February 1994, KILOSBAYAN, with its copetitioners, filed on 28 January 1994 this petition. In support of the petition, the petitioners claim that: . . . X X THE OFFICE OF THE PRESIDENT, ACTING THROUGH RESPONDENTS EXECUTIVE SECRETARY AND/OR ASSISTANT EXECUTIVE SECRETARY FOR LEGAL AFFAIRS, AND THE PCSO GRAVELY ABUSE[D] THEIR DISCRETION AND/OR FUNCTIONS TANTAMOUNT TO LACK OF JURISDICTION AND/OR AUTHORITY IN RESPECTIVELY: (A) APPROVING THE AWARD OF THE CONTRACT TO, AND (B) ENTERING INTO THE SOCALLED "CONTRACT OF LEASE" WITH, RESPONDENT PGMC FOR THE INSTALLATION, ESTABLISHMENT AND OPERATION OF THE ON-LINE LOTTERY AND TELECOMMUNICATION SYSTEMS REQUIRED AND/OR AUTHORIZED UNDER THE SAID CONTRACT, CONSIDERING THAT: a) Under Section 1 of the Charter of the PCSO, the PCSO is prohibited from holding and conducting lotteries "in collaboration, association or joint venture with any person, association, company or entity"; b) Under Act No. 3846 and established jurisprudence, a Congressional franchise is required before any person may be allowed to establish and operate said telecommunications system; c) Under Section 11, Article XII of the Constitution, a less than 60% Filipino-owned and/or controlled corporation, like the PGMC, is disqualified from operating a public service, like the said telecommunications system; and d) Respondent PGMC is not authorized by its charter and under the Foreign Investment Act (R.A. No. 7042) to install, establish and operate the on-line lotto and telecommunications systems. 18
Petitioners submit that the PCSO cannot validly enter into the assailed Contract of Lease with the PGMC because it is an arrangement wherein the PCSO would hold and conduct the on-line lottery system in "collaboration" or "association" with the PGMC, in violation of Section 1(B) of R.A. No. 1169, as amended by B.P. Blg. 42, which prohibits the PCSO from holding and conducting charity sweepstakes races, lotteries, and other similar activities "in collaboration, association or joint venture with any person, association, company or entity, foreign or domestic." Even granting arguendo that a lease of facilities is not within the contemplation of "collaboration" or "association," an analysis, however, of the Contract of Lease clearly shows that there is a "collaboration, association, or joint venture between respondents PCSO and PGMC in the holding of the On-Line Lottery System," and that there are terms and conditions of the Contract "showing that respondent PGMC is the actual lotto operator and not respondent PCSO." 19 The petitioners also point out that paragraph 10 of the Contract of Lease requires or authorizes PGMC to establish a telecommunications network that will connect all the municipalities and cities in the territory. However, PGMC cannot do that because it has no franchise from Congress to construct, install, establish, or operate the network pursuant to Section 1 of Act No. 3846, as amended. Moreover, PGMC is a 75% foreign-owned or controlled corporation and cannot, therefore, be granted a franchise for that purpose because of Section 11, Article XII of the 1987 Constitution. Furthermore, since "the subscribed foreign capital" of the PGMC "comes to about 75%, as shown by paragraph EIGHT of its Articles of Incorporation," it cannot lawfully enter into the contract in question because all forms of gambling and lottery is one of them are included in the so-called foreign investments negative list under the Foreign Investments Act (R.A. No. 7042) where only up to 40% foreign capital is allowed. 20 Finally, the petitioners insist that the Articles of Incorporation of PGMC do not authorize it to establish and operate an on-line lottery and telecommunications systems. 21 Accordingly, the petitioners pray that we issue a temporary restraining order and a writ of preliminary injunction commanding the respondents or any person acting in their places or upon their instructions to cease and desist from implementing the challenged Contract of Lease and, after hearing the merits of the petition, that we render judgment declaring the Contract of Lease void and without effect and making the injunction permanent. 22 We required the respondents to comment on the petition. In its Comment filed on 1 March 1994, private respondent PGMC asserts that "(1) [it] is merely an independent contractor for a piece of work, (i.e., the building and maintenance of a lottery system to be used by PCSO in the operation of its lottery franchise); and (2) as such independent contractor, PGMC is not a co-operator of the lottery franchise with PCSO, nor is PCSO sharing its franchise, 'in collaboration, association or joint venture' with PGMC as such statutory limitation is viewed from the context, intent, and spirit of Republic Act 1169, as amended by Batas Pambansa 42." It further claims that as an independent contractor for a piece of work, it is neither engaged in "gambling" nor in "public service" relative to the telecommunications network, which the petitioners even consider as an "indispensable requirement" of an on-line lottery system. Finally, it states that the execution and implementation of
the contract does not violate the Constitution and the laws; that the issue on the "morality" of the lottery franchise granted to the PCSO is political and not judicial or legal, which should be ventilated in another forum; and that the "petitioners do not appear to have the legal standing or real interest in the subject contract and in obtaining the reliefs sought." 23 In their Comment filed by the Office of the Solicitor General, public respondents Executive Secretary Teofisto Guingona, Jr., Assistant Executive Secretary Renato Corona, and the PCSO maintain that the contract of lease in question does not violate Section 1 of R.A. No. 1169, as amended by B.P. Blg. 42, and that the petitioner's interpretation of the phrase "in collaboration, association or joint venture" in Section 1 is "much too narrow, strained and utterly devoid of logic" for it "ignores the reality that PCSO, as a corporate entity, is vested with the basic and essential prerogative to enter into all kinds of transactions or contracts as may be necessary for the attainment of its purposes and objectives." What the PCSO charter "seeks to prohibit is that arrangement akin to a "joint venture" or partnership where there is "community of interest in the business, sharing of profits and losses, and a mutual right of control," a characteristic which does not obtain in a contract of lease." With respect to the challenged Contract of Lease, the "role of PGMC is limited to that of a lessor of the facilities" for the on-line lottery system; in "strict technical and legal sense," said contract "can be categorized as a contract for a piece of work as defined in Articles 1467, 1713 and 1644 of the Civil Code." They further claim that the establishment of the telecommunications system stipulated in the Contract of Lease does not require a congressional franchise because PGMC will not operate a public utility; moreover, PGMC's "establishment of a telecommunications system is not intended to establish a telecommunications business," and it has been held that where the facilities are operated "not for business purposes but for its own use," a legislative franchise is not required before a certificate of public convenience can be granted. 24 Even granting arguendothat PGMC is a public utility, pursuant to Albano S. Reyes, 25 "it can establish a telecommunications system even without a legislative franchise because not every public utility is required to secure a legislative franchise before it could establish, maintain, and operate the service"; and, in any case, "PGMC's establishment of the telecommunications system stipulated in its contract of lease with PCSO falls within the exceptions under Section 1 of Act No. 3846 where a legislative franchise is not necessary for the establishment of radio stations." They also argue that the contract does not violate the Foreign Investment Act of 1991; that the Articles of Incorporation of PGMC authorize it to enter into the Contract of Lease; and that the issues of "wisdom, morality and propriety of acts of the executive department are beyond the ambit of judicial review." Finally, the public respondents allege that the petitioners have no standing to maintain the instant suit, citing our resolution in Valmonte vs. Philippine Charity Sweepstakes Office. 26 Several parties filed motions to intervene as petitioners in this case, 27 but only the motion of Senators Alberto Romulo, Arturo Tolentino, Francisco Tatad, Gloria Macapagal-Arroyo, Vicente Sotto III, John
Osmea, Ramon Revilla, and Jose Lina 28 was granted, and the respondents were required to comment on their petition in intervention, which the public respondents and PGMC did. In the meantime, the petitioners filed with the Securities and Exchange Commission on 29 March 1994 a petition against PGMC for the nullification of the latter's General Information Sheets. That case, however, has no bearing in this petition. On 11 April 1994, we heard the parties in oral arguments. Thereafter, we resolved to consider the matter submitted for resolution and pending resolution of the major issues in this case, to issue a temporary restraining order commanding the respondents or any person acting in their place or upon their instructions to cease and desist from implementing the challenged Contract of Lease. In the deliberation on this case on 26 April 1994, we resolved to consider only these issues: (a) the locus standiof the petitioners, and (b) the legality and validity of the Contract of Lease in the light of Section 1 of R.A. No. 1169, as amended by B.P. Blg. 42, which prohibits the PCSO from holding and conducting lotteries "in collaboration, association or joint venture with any person, association, company or entity, whether domestic or foreign." On the first issue, seven Justices voted to sustain the locus standi of the petitioners, while six voted not to. On the second issue, the seven Justices were of the opinion that the Contract of Lease violates the exception to Section 1(B) of R.A. No. 1169, as amended by B.P. Blg. 42, and is, therefore, invalid and contrary to law. The six Justices stated that they wished to express no opinion thereon in view of their stand on the first issue. The Chief Justice took no part because one of the Directors of the PCSO is his brother-in-law. This case was then assigned to this ponente for the writing of the opinion of the Court. The preliminary issue on the locus standi of the petitioners should, indeed, be resolved in their favor. A party's standing before this Court is a procedural technicality which it may, in the exercise of its discretion, set aside in view of the importance of the issues raised. In the landmark Emergency Powers Cases, 29 this Court brushed aside this technicality because "the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure. (Avelino vs. Cuenco, G.R. No. L-2821)." Insofar as taxpayers' suits are concerned, this Court had declared that it "is not devoid of discretion as to whether or not it should be entertained," 30 or that it "enjoys an open discretion to entertain the same or not." 31 In De La Llana vs. Alba, 32 this Court declared: 1. The argument as to the lack of standing of petitioners is easily resolved. As far as Judge de la Llana is concerned, he certainly falls within the principle set forth in Justice Laurel's opinion inPeople vs. Vera [65 Phil. 56 (1937)]. Thus: "The unchallenged rule is that the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement [Ibid, 89]. The other petitioners as members of the bar and officers of the court cannot be considered as devoid of "any personal and substantial interest" on the matter. There is relevance to this excerpt from a separate opinion inAquino, Jr. v. Commission on Elections [L-40004, January 31, 1975, 62 SCRA 275]: "Then there is the attack on the standing of petitioners, as vindicating at most what they consider a public right and not protecting their rights as
individuals. This is to conjure the specter of the public right dogma as an inhibition to parties intent on keeping public officials staying on the path of constitutionalism. As was so well put by Jaffe; "The protection of private rights is an essential constituent of public interest and, conversely, without a wellordered state there could be no enforcement of private rights. Private and public interests are, both in a substantive and procedural sense, aspects of the totality of the legal order." Moreover, petitioners have convincingly shown that in their capacity as taxpayers, their standing to sue has been amply demonstrated. There would be a retreat from the liberal approach followed in Pascual v. Secretary of Public Works, foreshadowed by the very decision of People v. Vera where the doctrine was first fully discussed, if we act differently now. I do not think we are prepared to take that step. Respondents, however, would hard back to the American Supreme Court doctrine in Mellon v. Frothingham, with their claim that what petitioners possess "is an interest which is shared in common by other people and is comparatively so minute and indeterminate as to afford any basis and assurance that the judicial process can act on it." That is to speak in the language of a bygone era, even in the United States. For as Chief Justice Warren clearly pointed out in the later case of Flast v. Cohen, the barrier thus set up if not breached has definitely been lowered. In Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs. Tan, 33 reiterated in Basco vs. Philippine Amusements and Gaming Corporation, 34 this Court stated: Objections to taxpayers' suits for lack of sufficient personality standing or interest are, however, in the main procedural matters. Considering the importance to the public of the cases at bar, and in keeping with the Court's duty, under the 1987 Constitution, to determine whether or not the other branches of government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them, this Court has brushed aside technicalities of procedure and has taken cognizance of these petitions. and in Association of Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform, 35 it declared: With particular regard to the requirement of proper party as applied in the cases before us, we hold that the same is satisfied by the petitioners and intervenors because each of them has sustained or is in danger of sustaining an immediate injury as a result of the acts or measures complained of. [Ex Parte Levitt, 303 US 633]. And even if, strictly speaking, they are not covered by the definition, it is still within the wide discretion of the Court to waive the requirement and so remove the impediment to its addressing and resolving the serious constitutional questions raised. In the first Emergency Powers Cases, ordinary citizens and taxpayers were allowed to question the constitutionality of several executive orders issued by President Quirino although they were invoking only an indirect and general interest shared in common with the public. The Court dismissed the objective that they were not proper parties and ruled that the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure. We have since then applied this exception in many other cases. (Emphasis supplied)
In Daza vs. Singson, 36 this Court once more said: . . . For another, we have early as in the Emergency Powers Cases that where serious constitutional questions are involved, "the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure." The same policy has since then been consistently followed by the Court, as in Gonzales vs. Commission on Elections [21 SCRA 774] . . . The Federal Supreme Court of the United States of America has also expressed its discretionary power to liberalize the rule on locus standi. In United States vs. Federal Power Commission and Virginia Rea Association vs. Federal Power Commission, 37 it held: We hold that petitioners have standing. Differences of view, however, preclude a single opinion of the Court as to both petitioners. It would not further clarification of this complicated specialty of federal jurisdiction, the solution of whose problems is in any event more or less determined by the specific circumstances of individual situations, to set out the divergent grounds in support of standing in these cases. In line with the liberal policy of this Court on locus standi, ordinary taxpayers, members of Congress, and even association of planters, and non-profit civic organizations were allowed to initiate and prosecute actions before this Court to question the constitutionality or validity of laws, acts, decisions, rulings, or orders of various government agencies or instrumentalities. Among such cases were those assailing the constitutionality of (a) R.A. No. 3836 insofar as it allows retirement gratuity and commutation of vacation and sick leave to Senators and Representatives and to elective officials of both Houses of Congress; 38 (b) Executive Order No. 284, issued by President Corazon C. Aquino on 25 July 1987, which allowed members of the cabinet, their undersecretaries, and assistant secretaries to hold other government offices or positions; 39 (c) the automatic appropriation for debt service in the General Appropriations Act; 40 (d) R.A. No. 7056 on the holding of desynchronized elections; 41 (d) R.A. No. 1869 (the charter of the Philippine Amusement and Gaming Corporation) on the ground that it is contrary to morals, public policy, and order; 42 and (f) R.A. No. 6975, establishing the Philippine National Police. 43 Other cases where we have followed a liberal policy regarding locus standi include those attacking the validity or legality of (a) an order allowing the importation of rice in the light of the prohibition imposed by R.A. No. 3452; 44(b) P.D. Nos. 991 and 1033 insofar as they proposed amendments to the Constitution and P.D. No. 1031 insofar as it directed the COMELEC to supervise, control, hold, and conduct the referendum-plebiscite on 16 October 1976; 45 (c) the bidding for the sale of the 3,179 square meters of land at Roppongi, Minato-ku, Tokyo, Japan; 46(d) the approval without hearing by the Board of Investments of the amended application of the Bataan Petrochemical Corporation to transfer the site of its plant from Bataan to Batangas and the validity of such transfer and the shift of feedstock from naphtha only to naphtha and/or liquefied petroleum gas; 47 (e) the decisions, orders, rulings, and resolutions of the Executive Secretary, Secretary of Finance, Commissioner of Internal Revenue, Commissioner of Customs, and the Fiscal Incentives Review Board exempting the National Power
Corporation from indirect tax and duties; 48 (f) the orders of the Energy Regulatory Board of 5 and 6 December 1990 on the ground that the hearings conducted on the second provisional increase in oil prices did not allow the petitioner substantial cross-examination; 49 (g) Executive Order No. 478 which levied a special duty of P0.95 per liter or P151.05 per barrel of imported crude oil and P1.00 per liter of imported oil products; 50 (h) resolutions of the Commission on Elections concerning the apportionment, by district, of the number of elective members of Sanggunians; 51 and (i) memorandum orders issued by a Mayor affecting the Chief of Police of Pasay City. 52 In the 1975 case of Aquino vs. Commission on Elections, 53 this Court, despite its unequivocal ruling that the petitioners therein had no personality to file the petition, resolved nevertheless to pass upon the issues raised because of the far-reaching implications of the petition. We did no less in De Guia vs. COMELEC 54 where, although we declared that De Guia "does not appear to have locus standi, a standing in law, a personal or substantial interest," we brushed aside the procedural infirmity "considering the importance of the issue involved, concerning as it does the political exercise of qualified voters affected by the apportionment, and petitioner alleging abuse of discretion and violation of the Constitution by respondent." We find the instant petition to be of transcendental importance to the public. The issues it raised are of paramount public interest and of a category even higher than those involved in many of the aforecited cases. The ramifications of such issues immeasurably affect the social, economic, and moral well-being of the people even in the remotest barangays of the country and the counter-productive and retrogressive effects of the envisioned on-line lottery system are as staggering as the billions in pesos it is expected to raise. The legal standing then of the petitioners deserves recognition and, in the exercise of its sound discretion, this Court hereby brushes aside the procedural barrier which the respondents tried to take advantage of. And now on the substantive issue. Section 1 of R.A. No. 1169, as amending by B.P. Blg. 42, prohibits the PCSO from holding and conducting lotteries "in collaboration, association or joint venture with any person, association, company or entity, whether domestic or foreign." Section 1 provides: Sec. 1. The Philippine Charity Sweepstakes Office. The Philippine Charity Sweepstakes Office, hereinafter designated the Office, shall be the principal government agency for raising and providing for funds for health programs, medical assistance and services and charities of national character, and as such shall have the general powers conferred in section thirteen of Act Numbered One thousand four hundred fifty-nine, as amended, and shall have the authority: A. To hold and conduct charity sweepstakes races, lotteries and other similar activities, in such frequency and manner, as shall be determined, and subject to such rules and regulations as shall be promulgated by the Board of Directors. B. Subject to the approval of the Minister of Human Settlements, to engage in health and welfarerelated investments, programs, projects and activities which may be profit-oriented, by itself or in
collaboration, association or joint venture with any person, association, company or entity, whether domestic or foreign, except for the activities mentioned in the preceding paragraph (A), for the purpose of providing for permanent and continuing sources of funds for health programs, including the expansion of existing ones, medical assistance and services, and/or charitable grants: Provided, That such investment will not compete with the private sector in areas where investments are adequate as may be determined by the National Economic and Development Authority. (emphasis supplied) The language of the section is indisputably clear that with respect to its franchise or privilege "to hold and conduct charity sweepstakes races, lotteries and other similar activities," the PCSO cannot exercise it "in collaboration, association or joint venture" with any other party. This is the unequivocal meaning and import of the phrase "except for the activities mentioned in the preceding paragraph (A)," namely, "charity sweepstakes races, lotteries and other similar activities." B.P. Blg. 42 originated from Parliamentary Bill No. 622, which was covered by Committee Report No. 103 as reported out by the Committee on Socio-Economic Planning and Development of the Interim Batasang Pambansa. The original text of paragraph B, Section 1 of Parliamentary Bill No. 622 reads as follows: To engage in any and all investments and related profit-oriented projects or programs and activities by itself or in collaboration, association or joint venture with any person, association, company or entity, whether domestic or foreign, for the main purpose of raising funds for health and medical assistance and services and charitable grants.55 During the period of committee amendments, the Committee on Socio-Economic Planning and Development, through Assemblyman Ronaldo B. Zamora, introduced an amendment by substitution to the said paragraph B such that, as amended, it should read as follows: Subject to the approval of the Minister of Human Settlements, to engage in health-oriented investments, programs, projects and activities which may be profit- oriented, by itself or in collaboration, association, or joint venture with any person, association, company or entity, whether domestic or foreign, for the purpose of providing for permanent and continuing sources of funds for health programs, including the expansion of existing ones, medical assistance and services and/or charitable grants. 56 Before the motion of Assemblyman Zamora for the approval of the amendment could be acted upon, Assemblyman Davide introduced an amendment to the amendment: MR. DAVIDE. Mr. Speaker. THE SPEAKER. The gentleman from Cebu is recognized.
MR. DAVIDE. May I introduce an amendment to the committee amendment? The amendment would be to insert after "foreign" in the amendment just read the following: EXCEPT FOR THE ACTIVITY IN LETTER (A) ABOVE. When it is joint venture or in collaboration with any entity such collaboration or joint venture must not include activity activity letter (a) which is the holding and conducting of sweepstakes races, lotteries and other similar acts. MR. ZAMORA. We accept the amendment, Mr. Speaker. MR. DAVIDE. Thank you, Mr. Speaker. THE SPEAKER. Is there any objection to the amendment? (Silence) The amendment, as amended, is approved. 57 Further amendments to paragraph B were introduced and approved. When Assemblyman Zamora read the final text of paragraph B as further amended, the earlier approved amendment of Assemblyman Davide became "EXCEPT FOR THE ACTIVITIES MENTIONED IN PARAGRAPH (A)"; and by virtue of the amendment introduced by Assemblyman Emmanuel Pelaez, the word PRECEDING was inserted before PARAGRAPH. Assemblyman Pelaez introduced other amendments. Thereafter, the new paragraph B was approved. 58 This is now paragraph B, Section 1 of R.A. No. 1169, as amended by B.P. Blg. 42. No interpretation of the said provision to relax or circumvent the prohibition can be allowed since the privilege to hold or conduct charity sweepstakes races, lotteries, or other similar activities is a franchise granted by the legislature to the PCSO. It is a settled rule that "in all grants by the government to individuals or corporations of rights, privileges and franchises, the words are to be taken most strongly against the grantee .... [o]ne who claims a franchise or privilege in derogation of the common rights of the public must prove his title thereto by a grant which is clearly and definitely expressed, and he cannot enlarge it by equivocal or doubtful provisions or by probable inferences. Whatever is not unequivocally granted is withheld. Nothing passes by mere implication." 59 In short then, by the exception explicitly made in paragraph B, Section 1 of its charter, the PCSO cannot share its franchise with another by way of collaboration, association or joint venture. Neither can it assign, transfer, or lease such franchise. It has been said that "the rights and privileges conferred under a franchise may, without doubt, be assigned or transferred when the grant is to the grantee and assigns, or is authorized by statute. On the other hand, the right of transfer or assignment may be restricted by statute or the constitution, or be made subject to the approval of the grantor or a governmental agency,
such as a public utilities commission, exception that an existing right of assignment cannot be impaired by subsequent legislation." 60 It may also be pointed out that the franchise granted to the PCSO to hold and conduct lotteries allows it to hold and conduct a species of gambling. It is settled that "a statute which authorizes the carrying on of a gambling activity or business should be strictly construed and every reasonable doubt so resolved as to limit the powers and rights claimed under its authority." 61 Does the challenged Contract of Lease violate or contravene the exception in Section 1 of R.A. No. 1169, as amended by B.P. Blg. 42, which prohibits the PCSO from holding and conducting lotteries "in collaboration, association or joint venture with" another? We agree with the petitioners that it does, notwithstanding its denomination or designation as a (Contract of Lease). We are neither convinced nor moved or fazed by the insistence and forceful arguments of the PGMC that it does not because in reality it is only an independent contractor for a piece of work, i.e., the building and maintenance of a lottery system to be used by the PCSO in the operation of its lottery franchise. Whether the contract in question is one of lease or whether the PGMC is merely an independent contractor should not be decided on the basis of the title or designation of the contract but by the intent of the parties, which may be gathered from the provisions of the contract itself. Animus hominis est anima scripti. The intention of the party is the soul of the instrument. In order to give life or effect to an instrument, it is essential to look to the intention of the individual who executed it. 62 And, pursuant to Article 1371 of the Civil Code, "to determine the intention of the contracting parties, their contemporaneous and subsequent acts shall be principally considered." To put it more bluntly, no one should be deceived by the title or designation of a contract. A careful analysis and evaluation of the provisions of the contract and a consideration of the contemporaneous acts of the PCSO and PGMC indubitably disclose that the contract is not in reality a contract of lease under which the PGMC is merely an independent contractor for a piece of work, but one where the statutorily proscribed collaboration or association, in the least, or joint venture, at the most, exists between the contracting parties. Collaboration is defined as the acts of working together in a joint project. 63 Association means the act of a number of persons in uniting together for some special purpose or business. 64 Joint venture is defined as an association of persons or companies jointly undertaking some commercial enterprise; generally all contribute assets and share risks. It requires a community of interest in the performance of the subject matter, a right to direct and govern the policy in connection therewith, and duty, which may be altered by agreement to share both in profit and losses. 65 The contemporaneous acts of the PCSO and the PGMC reveal that the PCSO had neither funds of its own nor the expertise to operate and manage an on-line lottery system, and that although it wished to have the system, it would have it "at no expense or risks to the government." Because of these serious constraints and unwillingness to bear expenses and assume risks, the PCSO was candid enough to state in its RFP that it is seeking for "a suitable contractor which shall build, at its own expense, all the facilities needed to operate and maintain" the system; exclusively bear "all capital, operating expenses
and expansion expenses and risks"; and submit "a comprehensive nationwide lottery development plan . . . which will include the game, the marketing of the games, and the logistics to introduce the game to all the cities and municipalities of the country within five (5) years"; and that the operation of the online lottery system should be "at no expense or risk to the government" meaningitself, since it is a government-owned and controlled agency. The facilities referred to means "all capital equipment, computers, terminals, software, nationwide telecommunications network, ticket sales offices, furnishings and fixtures, printing costs, costs of salaries and wages, advertising and promotions expenses, maintenance costs, expansion and replacement costs, security and insurance, and all other related expenses needed to operate a nationwide on-line lottery system." In short, the only contribution the PCSO would have is its franchise or authority to operate the on-line lottery system; with the rest, including the risks of the business, being borne by the proponent or bidder. It could be for this reason that it warned that "the proponent must be able to stand to the acid test of proving that it is an entity able to take on the role of responsible maintainer of the on-line lottery system." The PCSO, however, makes it clear in its RFP that the proponent can propose a period of the contract which shall not exceed fifteen years, during which time it is assured of a "rental" which shall not exceed 12% of gross receipts. As admitted by the PGMC, upon learning of the PCSO's decision, the Berjaya Group Berhad, with its affiliates, wanted to offer itsservices and resources to the PCSO. Forthwith, it organized the PGMC as "a medium through which thetechnical and management services required for the project would be offered and delivered to PCSO." 66 Undoubtedly, then, the Berjaya Group Berhad knew all along that in connection with an on-line lottery system, the PCSO had nothing but its franchise, which it solemnly guaranteed it had in the General Information of the RFP. 67 Howsoever viewed then, from the very inception, the PCSO and the PGMC mutually understood that any arrangement between them would necessarily leave to the PGMC the technical, operations, and managementaspects of the on-line lottery system while the PCSO would, primarily, provide the franchise. The words Gamingand Management in the corporate name of respondent Philippine Gaming Management Corporation could not have been conceived just for euphemistic purposes. Of course, the RFP cannot substitute for the Contract of Lease which was subsequently executed by the PCSO and the PGMC. Nevertheless, the Contract of Lease incorporates their intention and understanding. The so-called Contract of Lease is not, therefore, what it purports to be. Its denomination as such is a crafty device, carefully conceived, to provide a built-in defense in the event that the agreement is questioned as violative of the exception in Section 1 (B) of the PCSO's charter. The acuity or skill of its draftsmen to accomplish that purpose easily manifests itself in the Contract of Lease. It is outstanding for its careful and meticulous drafting designed to give an immediate impression that it is a contract of lease. Yet, woven therein are provisions which negate its title and betray the true intention of the parties to be in or to have a joint venture for a period of eight years in the operation and maintenance of the on-line lottery system. Consistent with the above observations on the RFP, the PCSO has only its franchise to offer, while the PGMC represents and warrants that it has access to all managerial and technical expertise to promptly
and effectively carry out the terms of the contract. And, for a period of eight years, the PGMC is under obligation to keep all theFacilities in safe condition and if necessary, upgrade, replace, and improve them from time to time as new technology develops to make the on-line lottery system more costeffective and competitive; exclusively bear all costs and expenses relating to the printing, manpower, salaries and wages, advertising and promotion, maintenance, expansion and replacement, security and insurance, and all other related expenses needed to operate the on-line lottery system; undertake a positive advertising and promotions campaign for both institutional and product lines without engaging in negative advertising against other lessors; bear the salaries and related costs of skilled and qualified personnel for administrative and technical operations; comply with procedural and coordinating rules issued by the PCSO; and to train PCSO and other local personnel and to effect the transfer of technology and other expertise, such that at the end of the term of the contract, the PCSO will be able to effectively take over the Facilities and efficiently operate the on-line lottery system. The latter simply means that, indeed, the managers, technicians or employees who shall operate the on-line lottery system are not managers, technicians or employees of the PCSO, but of the PGMC and that it is only after the expiration of the contract that the PCSO will operate the system. After eight years, the PCSO would automatically become the owner of the Facilities without any other further consideration. For these reasons, too, the PGMC has the initial prerogative to prepare the detailed plan of all games and the marketing thereof, and determine the number of players, value of winnings, and the logistics required to introduce the games, including the Master Games Plan. Of course, the PCSO has the reserved authority to disapprove them. 68 And, while the PCSO has the sole responsibility over the appointment of dealers and retailers throughout the country, the PGMC may, nevertheless, recommend for appointment dealers and retailers which shall be acted upon by the PCSO within forty-eight hours and collect and retain, for its own account, a security deposit from dealers and retailers in respect of equipment supplied by it. This joint venture is further established by the following: (a) Rent is defined in the lease contract as the amount to be paid to the PGMC as compensation for the fulfillment of its obligations under the contract, including, but not limited to the lease of the Facilities. However, this rent is not actually a fixed amount. Although it is stated to be 4.9% of gross receipts from ticket sales, payable net of taxes required by law to be withheld, it may be drastically reduced or, in extreme cases, nothing may be due or demandable at all because the PGMC binds itself to "bear all risks if the revenue from the ticket sales, on an annualized basis, are insufficient to pay the entire prize money." This risk-bearing provision is unusual in a lessor-lessee relationship, but inherent in a joint venture. (b) In the event of pre-termination of the contract by the PCSO, or its suspension of operation of the online lottery system in breach of the contract and through no fault of the PGMC, the PCSO binds itself "to promptly, and in any event not later than sixty (60) days, reimburse the Lessor the amount of its total investment cost associated with the On-Line Lottery System, including but not limited to the cost of the Facilities, and further compensate the LESSOR for loss of expected net profit after tax, computed over
the unexpired term of the lease." If the contract were indeed one of lease, the payment of the expected profits or rentals for the unexpired portion of the term of the contract would be enough. (c) The PGMC cannot "directly or indirectly undertake any activity or business in competition with or adverse to the On-Line Lottery System of PCSO unless it obtains the latter's prior written consent." If the PGMC is engaged in the business of leasing equipment and technology for an on-line lottery system, we fail to see any acceptable reason why it should allow a restriction on the pursuit of such business. (d) The PGMC shall provide the PCSO the audited Annual Report sent to its stockholders, and within two years from the effectivity of the contract, cause itself to be listed in the local stock exchange and offer at least 25% of its equity to the public. If the PGMC is merely a lessor, this imposition is unreasonable and whimsical, and could only be tied up to the fact that the PGMC will actually operate and manage the system; hence, increasing public participation in the corporation would enhance public interest. (e) The PGMC shall put up an Escrow Deposit of P300,000,000.00 pursuant to the requirements of the RFP, which it may, at its option, maintain as its initial performance bond required to ensure its faithful compliance with the terms of the contract. (f) The PCSO shall designate the necessary personnel to monitor and audit the daily performance of the on-line lottery system; and promulgate procedural and coordinating rules governing all activities relating to the on-line lottery system. The first further confirms that it is the PGMC which will operate the system and the PCSO may, for the protection of its interest, monitor and audit the daily performance of the system. The second admits thecoordinating and cooperative powers and functions of the parties. (g) The PCSO may validly terminate the contract if the PGMC becomes insolvent or bankrupt or is unable to pay its debts, or if it stops or suspends or threatens to stop or suspend payment of all or a material part of its debts. All of the foregoing unmistakably confirm the indispensable role of the PGMC in the pursuit, operation, conduct, and management of the On-Line Lottery System. They exhibit and demonstrate the parties' indivisible community of interest in the conception, birth and growth of the on-line lottery, and, above all, in its profits, with each having a right in the formulation and implementation of policies related to the business and sharing, as well, in the losses with the PGMC bearing the greatest burden because of its assumption of expenses and risks, and the PCSO the least, because of its confessed unwillingness to bear expenses and risks. In a manner of speaking, each is wed to the other for better or for worse. In the final analysis, however, in the light of the PCSO's RFP and the above highlighted provisions, as well as the "Hold Harmless Clause" of the Contract of Lease, it is even safe to conclude that the actual lessor in this case is the PCSO and the subject matter thereof is its franchise to hold and conduct lotteries since it is, in reality, the PGMC which operates and manages the on-line lottery system for a period of eight years. We thus declare that the challenged Contract of Lease violates the exception provided for in paragraph B, Section 1 of R.A. No. 1169, as amended by B.P. Blg. 42, and is, therefore, invalid for being contrary to
law. This conclusion renders unnecessary further discussion on the other issues raised by the petitioners. WHEREFORE, the instant petition is hereby GRANTED and the challenged Contract of Lease executed on 17 December 1993 by respondent Philippine Charity Sweepstakes Office (PCSO) and respondent Philippine Gaming Management Corporation (PGMC) is hereby DECLARED contrary to law and invalid. The Temporary Restraining Order issued on 11 April 1994 is hereby MADE PERMANENT. No pronouncement as to costs. SO ORDERED. Regalado, Romero and Bellosillo, JJ., concur. Narvasa, C.J., took no part.
Separate Opinions
CRUZ, J., concurring: I am happy to join Mr. Justice Hilario G. Davide, Jr. in his excellent ponencia. I will add the following personal observations only for emphasis as it is not necessary to supplement his thorough exposition. The respondents take great pains to cite specific provisions of the contract to show that it is PCSO that is actually operating the on-line lottery, but they have not succeeded in disproving the obvious, to wit, that the document was intentionally so crafted to make it appear that the operation is not a joint undertaking of PCSO and PGMC but a mere lease of services. It is a clever instrument, to be sure, but we are, gratifyingly, not deluded. Lawyers have a special talent to disguise the real intention of the parties in a contract to make it come ostensibly within the provisions of a law although the real if furtive purpose is to violate it. That talent has been exercised in this case, but not convincingly enough. It should be quite clear, from the adroit way the contract has been drafted, that the primary objective was to avoid the conclusion that PCSO will be operating a lottery "in association, collaboration or joint venture with any person, association, company or entity," which is prohibited by Section 1 of Rep. Act No. 1169 as amended by B.P. Blg. 42. Citing the self-serving provisions of the contract, the respondents would have us believe that the contract is perfectly lawful because all it does is provide for the lease to PCSO of the technical know-how and equipment of PGMC, with PCSO acting as "the sole and individual operator" of the lottery. I am glad we are not succumbing to this sophistry.
Despite the artfulness of the contract (authorship of which was pointedly denied by both counsel for the government and the private respondent during the oral argument on this case), a careful study will reveal telling stipulations that it is PGMC and not PCSO that will actually be operating the lottery. Thus, it is provided inter aliathat PGMC shall furnish all capital equipment and other facilities needed for the operation; bear all expenses relating to the operation, including those for the salaries and wages of the administrative and technical personnel; undertake a positive advertising and promotion campaign for public support of the lottery; establish a radio communications network throughout the country as part of the operation; and assume all risks if the revenues from ticket sales are insufficient to pay the entire prize money. Most significantly, to show that it is only after eight years from the effectivity of the contract that PCSO will actually operate the lottery, Par. 6.7 of the agreement provides that PGMC shall: 6.7. Upon effectivity of this Contract, commence the training of PCSO and other local personnel and the transfer of technology and expertise, such that at the end of the term of this Contract, PCSO will be able to effectively take-over the Facilities and efficiently operate the On-Line Lottery System. (Emphasis supplied). In the meantime, that is to say during the entire 8-year term of the contract, it will be PGMC that will be operating the lottery. Only "at the end of the term of this Contract" will PCSO "be able to effectively take-over the Facilities and efficiently operate the On-Line Lottery System." Even on the assumption that it is PCSO that will be operating the lottery at the very start, the authority granted to PGMC by the agreement will readily show that PCSO will not be acting alone, as the respondents pretend. In fact, it cannot. PGMC is an indispensable co-worker because it has the equipment and the technology and the management skills that PCSO does not have at this time for the operation of the lottery, PCSO cannot deny that it needs the assistance of PGMC for this purpose, which was its reason for entering into the contract in the first place. And when PCSO does avail itself of such assistance, how will it be operating the lottery? Undoubtedly, it will be doing so "in collaboration, association or joint venture" with PGMC, which, let it be added, will not be serving as a mere "hired help" of PCSO subject to its control. PGMC will be functioning independently in the discharge of its own assigned role as stipulated in detail under the contract. PGMC is plainly a partner of PCSO in violation of law, no matter how PGMC's assistance is called or the contract is denominated. Even if it be conceded that the assistance partakes of a lease of services, the undeniable fact is that PCSO would still be collaborating or cooperating with PGMC in the operation of the lottery. What is even worse is that PCSO and PGMC may be actually engaged in a joint venture, considering that PGMC does not collect the usual fixed rentals due an ordinary lessor but is entitled to a special "Rental Fee," as the contract calls it, "equal to four point nine percent (4.9%) of gross receipts from ticket sales." The flexibility of this amount is significant. As may be expected, it will induce in PGMC an active interest and participation in the success of PCSO that is not expected of an ordinary detached lessor who gets to be paid his rentals not a rental fee whether the lessee's business prospers or not. PGMC's share in the operation depends on its own performance and the effectiveness of its collaboration with PCSO.
Although the contract pretends otherwise, PGMC is a co-investor with PCSO in what is practically, if not in a strictly legal sense, a joint venture. Concerning the doctrine of locus standi, I cannot agree that out of the sixty million Filipinos affected by the proposed lottery, not a single solitary citizen can question the agreement. Locus standi is not such an absolute rule that it cannot admit of exceptions under certain conditions or circumstances like those attending this transaction. As I remarked in my dissent in Guazon v. De Villa, 181 SCRA 623, "It is not only the owner of the burning house who has the right to call the firemen. Every one has the right and responsibility to prevent the fire from spreading even if he lives in the other block." What is especially galling is that the transaction in question would foist upon our people an essentially immoral activity through the instrumentality of a foreign corporation, which naturally does not have the same concern for our interests as we ourselves have. I am distressed that foreigners should be allowed to exploit the weakness of some of us for instant gain without work, and with the active collaboration and encouragement of our own government at that. Feliciano, J., concurring I agree with the conclusions reached by my distinguished brother in the Court Davide, Jr., J., both in respect of the question of locus standi and in respect of the merits of this case, that is, the issues of legality and constitutionality of the Contract of Lease entered into between the Philippine Charity Sweepstakes Office (PCSO) and the Philippine Gaming Management Corporation (PGMC). In this separate opinion, I propose to address only the question of locus standi. It is with some hesitation that I do so, considering the extensive separate opinions on this question written by my learned brothers Melo, Puno and Vitug, JJ. I agree with the great deal of what my brothers Melo, Puno and Vitug say about locus standi in their separate opinions and there is no need to go over the ground that I share with them. Because, however, I reach a different conclusion in respect of the presence or absence of locus standi on the part of the petitioners in the case before the Court, there is an internal need (a need internal to myself) to articulate the considerations which led me to that conclusion. There is no dispute that the doctrine of locus standi reflects an important constitutional principle, that is, the principle of separation of powers which, among other things, mandates that each of the great Departments of government is responsible for performance of its constitutionally allotted tasks. Insofar as the Judicial Department is concerned, the exercise of judicial power and carrying out of judicial functions commonly take place within the context of actual cases or controversies. This, in turn, reflects the basic notion of judicial power as the power to resolve actual disputes and of the traditional business of courts as the hearing and deciding of specific controversies brought before them. In our own jurisdiction, and at least since the turn of the present century, judicial power has always included the power of judicial review, understood as the authority of courts (more specifically the Supreme Court) to assay contested legislative and executive acts in terms of their constitutionality or legality. Thus, the general proposition has been that a petitioner who assails the legal or constitutional quality of an executive or legislative act must be able to show that he has locus standi. Otherwise, the petition becomes vulnerable to prompt dismissal by the court.
There is, upon the other hand, little substantive dispute that the possession of locus standi 1 is not, in each and every case, a rigid and absolute requirement for access to the courts. Certainly that is the case where great issues of public law are at stake, issues which cannot be approached in the same way that a court approaches a suit for the collection of a sum of money or a complaint for the recovery of possession of a particular piece of land. The broad question is when, or in what types of cases, the court should insist on a clear showing of locus standi understood as a direct and personal interest in the subject matter of the case at bar, and when the court may or should relax that apparently stringent requirement and proceed to deal with the legal or constitutional issues at stake in a particular case. I submit, with respect, that it is not enough for the Court simply to invoke "public interest" or even "paramount considerations of national interest," and to say that the specific requirements of such public interest can only be ascertained on a "case to case" basis. For one thing, such an approach is not intellectually satisfying. For another, such an answer appears to come too close to saying that locus standi exists whenever at least a majority of the Members of this Court participating in a case feel that an appropriate case for judicial intervention has arisen. This is not, however, to say that there is somewhere an over-arching juridical principle or theory, waiting to be discovered, that permits a ready answer to the question of when, or in what types of cases, the need to showlocus standi may be relaxed in greater or lesser degree. To my knowledge, no satisfactory principle or theory has been discovered and none has been crafted, whether in our jurisdiction or in the United States. 2 I have neither the competence nor the opportunity to try to craft such principle or formula. It might, however, be useful to attempt to indicate the considerations of principle which, in the present case, appear to me to require an affirmative answer to the question of whether or not petitioners are properly regarded as imbued with the standing necessary to bring and maintain the present petition. Firstly, the character of the funds or other assets involved in the case is of major importance. In the case presently before the Court, the funds involved are clearly public in nature. The funds to be generated by the proposed lottery are to be raised from the population at large. Should the proposed operation be as successful as its proponents project, those funds will come from well-nigh every town and barrio of Luzon. The funds here involved are public in another very real sense: they will belong to the PCSO, a government owned or controlled corporation and an instrumentality of the government and are destined for utilization in social development projects which, at least in principle, are designed to benefit the general public. My learned brothers Melo, Puno and Vitug, JJ. concede that taxpayers' suits have been recognized as an exception to the traditional requirement of recognized as an exception to the traditional requirement of locus standi. They insist, however, that because the funds here involved will not have been generated by the exercise of the taxing power of the Government, the present petition cannot be regarded as a taxpayer's suit and therefore, must be dismissed by the Court. It is my respectful submission that that constitutes much too narrow a conception of the taxpayer's suit and of the public policy that it embodies. It is also to overlook the fact that tax monies, strictly so called, constitute only one (1) of the major categories of funds today raised and used for public purposes. It is widely known that the principal sources of funding for government operations today include, not just taxes and customs duties, but also revenues derived from activities of the Philippine Amusement
Gaming Corporation (PAGCOR), as well as the proceeds of privatization of government owned or controlled corporations and other government owned assets. The interest of a private citizen in seeing to it that public funds, from whatever source they may have been derived, go only to the uses directed and permitted by law is as real and personal and substantial as the interest of a private taxpayer in seeing to it that tax monies are not intercepted on their way to the public treasury or otherwise diverted from uses prescribed or allowed by law. It is also pertinent to note that the more successful the government is in raising revenues by non-traditional methods such as PAGCOR operations and privatization measures, the lesser will be the pressure upon the traditional sources of public revenues, i.e., the pocket books of individual taxpayers and importers. A second factor of high relevance is the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government. A showing that a constitutional or legal provision is patently being disregarded by the agency or instrumentality whose act is being assailed, can scarcely be disregarded by court. The concept of locus standi which is part and parcel of the broader notion of ripeness of the case "does not operate independently and is not alone decisive. . . . [I]t is in substantial part a function of a judge's estimate of the merits of the constitutional [or legal] issue." 3 The notion of locus standi and the judge's conclusions about the merits of the case, in other words, interact with each other. Where the Court perceives a serious issue of violation of some constitutional or statutory limitation, it will be much less difficult for the Court to find locus standi in the petitioner and to confront the legal or constitutional issue. In the present case, the majority of the Court considers that a very substantial showing has been made that the Contract of Lease between the PCSO and the PGMC flies in the face of legal limitations. A third consideration of importance in the present case is the lack of any other party with a more direct and specific interest in raising the questions here being raised. Though a public bidding was held, no losing or dissatisfied bidder has come before the Court. The Office of the Ombudsman has not, to the knowledge of the Court, raised questions about the legality or constitutionality of the Contract of Lease here involved. The National Government itself, through the Office of the Solicitor General, is defending the PCSO Contract (though it had not participated in the drafting thereof). In a situation like that here obtaining, the submission may be made that the institution, so well known in corporation law and practice, of the corporate stockholders' derivative suit furnishes an appropriate analogy and that on the basis of such an analogy, a taxpayer's derivative suit should be recognized as available. The wide range of impact of the Contract of Lease here assailed and of its implementation, constitutes still another consideration of significance. In the case at bar, the agreement if implemented will be practically nationwide in its scope and reach (the PCSO-PGMC Contract is limited in its application to the Island of Luzon; but if the PCSO Contracts with the other two [2] private "gaming management" corporations in respect of the Visayas and Mindanao are substantially similar to PCSO's Contract with PGMC, then the Contract before us may be said to be national indeed in its implications and consequences). Necessarily, the amounts of money expected to be raised by the proposed activities of the PCSO and PGMC will be very substantial, probably in the hundreds of millions of pesos. It is not easy to conceive of a contract with greater and more far-reaching consequences, literally speaking, for the country than the Contract of Lease here involved. Thus, the subject matter of the petition is not
something that the Court may casually pass over as unimportant and as not warranting the expenditure of significant judicial resources. In the examination of the various features of this case, the above considerations have appeared to me to be important and as pressing for acceptance and exercise of jurisdiction on the part of this Court. It is with these considerations in mind that I vote to grant due course to the Petition and to hold that the Contract of Lease between the PCSO and PGMC in its present form and content, and given the present state of the law, is fatally defective. PADILLA, J., concurring: My views against gambling are a matter of judicial record. In Basco v. PAGCOR, (G.R. No. 91649, 14 May 1991, 197 SCRA 52) I expressed these views in a separate opinion where I was joined by that outstanding lady jurist, Mme. Justice A. Melencio-Herrera whose incisive approach to legal problems is today missed in this Court. I reproduce here those views because they are highly persuasive to the conclusions I reach in the present controversy: I concur in the result of the learned decision penned by my brother Mr. Justice Paras. This means that I agree with the decision insofar as it holds that the prohibition, control, and regulation of the entire activity known as gambling properly pertain to "state policy." It is, therefore, the political departments of government, namely, the legislative and the executive that should decide on what government should do in the entire area of gambling, and assume full responsibility to the people for such policy. The courts, as the decision states, cannot inquire into the wisdom, morality or expediency of policies adopted by the political departments of government in areas which fall within their authority, except only when such policies pose a clear and present danger to the life, liberty or property of the individual. This case does not involve such a factual situation. However, I hasten to make of record that I do not subscribe to gambling in any form. It demeans the human personality, destroys self-confidence and eviscerates one's self-respect, which in the long run will corrode whatever is left of the Filipino moral character. Gambling has wrecked and will continue to wreck families and homes; it is an antithesis to individual reliance and reliability as well as personal industry which are the touchstones of real economic progress and national development. Gambling is reprehensible whether maintained by government or privatized. The revenues realized by the government out of "legalized" gambling will, in the long run, be more than offset and negated by the irreparable damage to the people's moral values. Also, the moral standing of the government in its repeated avowals against "illegal gambling" is fatally flawed and becomes untenable when it itself engages in the very activity it seeks to eradicate. One can go through the Court's decision today and mentally replace the activity referred to therein as gambling, which is legal only because it is authorized by law and run by the government, with the activity known as prostitution. Would prostitution be any less reprehensible were it to be authorized by law, franchised, and "regulated" by the government, in return for the substantial revenues it would yield
the government to carry out its laudable projects, such as infrastructure and social amelioration? The question, I believe, answers itself. I submit that the sooner the legislative department outlaws all forms of gambling, as a fundamental state policy, and the sooner the executive implements such policy, the better it will be for the nation. We presently have the sweepstakes lotteries; we already have the PAGCOR's gambling casinos; the Filipino people will soon, if plans do not miscarry, be initiated into an even more sophisticated and encompassing nationwide gambling network known as the "on-line hi-tech lotto system." To be sure, it is not wealth producing; it is not export oriented. It will draw from existing wealth in the hands of Filipinos and transfer it into the coffers of the PCSO and its foreign partners at a price of further debasement of the moral standards of the Filipino people, the bulk of whom are barely subsisting below the poverty line. 1. It is said that petitioners 1 have no locus standi to bring this suit even as they challenge the legality and constitutionality of a contract of lease between the PCSO, a government-owned corporation and the PGMC, a private corporation with substantial (if not controlling) foreign composition and content. Such contract of lease contains the terms and conditions under which an "on-line hi-tech lotto system" will operate in the country. As the ponente of the extended, unsigned en banc resolution in Valmonte v. PCSO, (G.R. No. 78716 and G.R. No. 79084, 22 September 1987), I would be the last to downgrade the rule, therein reiterated, that in order to maintain a suit challenging the constitutionality and/or legality of a statute, order or regulation or assailing a particular governmental action as done with grave abuse of discretion or with lack of jurisdiction, the petitioner must show that he has a clear personal or legal right that would be violated with the enforcement of the challenged statute, order or regulation or the implementation of the questioned governmental action. But, in my considered view, this rule maybe (and should be) relaxed when the issue involved or raised in the petition is of such paramount national interest and importance as to dwarf the above procedural rule into a barren technicality. As a unanimous Court en banc aptly put it in De Guia vs. COMELEC, G.R. No. 104712, 6 May 1992, 208 SCRA 420. Before addressing the crux of the controversy, the Court observes that petitioner does not allege that he is running for re-election, much less, that he is prejudiced by the election, by district, in Paraaque. As such, he does not appear to have locus standi, a standing in law, a personal or substantial interest. (Sanidad vs. COMELEC, G.R. No. L-4640, October 12, 1976. 73 SCRA 333; Municipality of Malabang vs. Benito, G.R. No. L-28113, March 28, 1969, 27 SCRA 533) He does not also allege any legal right that has been violated by respondent. If for this alone, petitioner does not appear to have any cause of action. However, considering the importance of the issue involved, concerning as it does the political exercise of qualified voters affected by the apportionment, and petitioner alleging abuse of discretion and violation of the Constitution by respondent, We resolved to brush aside the question of procedural infirmity, even as We perceive the petition to be one of declaratory relief. We so held similarly through Mr. Justice Edgardo L. Paras in Osmea vs. Commission on Elections.
I view the present case as falling within the De Guia case doctrine. For, when the contract of lease in question seeks to establish and operate a nationwide gambling network with substantial if not controlling foreign participation, then the issue is of paramount national interest and importance as to justify and warrant a relaxation of the above-mentioned procedural rule on locus standi. 2. The charter of the PCSO Republic Act No. 1169 as amended by BP No. 42 insofar as relevant, reads: Sec. 1. The Philippine Charity Sweepstakes Office. The Philippine Charity Sweepstakes Office, hereinafter designated the Office, shall be the principal government agency for raising and providing for funds for health programs, medical assistance and services and charities of national character, and as such shall have the general powers conferred in section thirteen of Act Numbered One Thousand Four Hundred Fifty-Nine, as amended, and shall have the authority: A. To hold and conduct charity sweepstakes races, lotteries and other similar activities, in such frequency and manner, as shall be determined, and subject to such rules and regulations as shall be promulgated by the Board of Directors. B. Subject to the approval of the Minister of Human Settlements, to engage in health and welfarerelated investments, programs, projects and activities which may be profit-oriented, by itself or in collaboration, association or joint venture with any person, association, company or entity, whether domestic or foreign, except for the activities mentioned in the preceding paragraph (A), for the purpose of providing for permanent and continuing sources of funds for health programs, including the expansion of existing ones, medical assistance and services, and/or charitable grants: Provided, That such investments will not compete with the private sector in areas where investments are adequate as may be determined by the National Economic and Development Authority. It is at once clear from the foregoing legal provisions that, while the PCSO charter allows the PCSO to itself engage in lotteries, it does not however permit the PCSO to undertake or engage in lotteries in "collaboration, association or joint venture" with others. The palpable reason for this prohibition is, that PCSO should not and cannot be made a vehicle for an otherwise prohibited foreign or domestic entity to engage in lotteries (gambling activities) in the Philippines. The core question then is whether the lease contract between PCSO and PGMC is a device whereby PCSO will engage in lottery in collaboration, association or joint venture with another, i.e. PGMC. I need not go here into the details and different specific features of the contract to show that it is a joint venture between PCSO and PGMC. That has been taken care of in the opinion of Mr. Justice Davide to which I fully subscribe. On a slightly different plane and, perhaps simplified, I consider the agreement or arrangement between the PCSO and PGMC a joint venture because each party to the contract contributes its share in the enterprise or project. PGMC contributes its facilities, equipment and know-how (expertise). PCSO contributes (aside from its charter) the market, directly or through dealers and this to me is most important in the totality or mass of the Filipinogambling elements who will invest in lotto tickets.
PGMC will get its 4.9% of gross receipts (with assumption of certain risks in the course of lotto operations); the residue of the whole exercise will go to PCSO. To any person with a minimum of business know-how, this is a joint venture between PCSO and PGMC, plain and simple. But assuming ex gratia argumenti that such arrangement between PCSO and PGMC is not a joint venture between the two of them to install and operate an "on-line hi-tech lotto system" in the country, it can hardly be denied that it is, at the very least, an association or collaboration between PCSO and PGMC. For one cannot do without the other in the installation, operation and, most importantly, marketing of the entire enterprise or project in this country. Indeed, the contract of lease in question is a clear violation of Republic Act No. 1169 as amended by BP No. 42 (the PCSO charter). Having arrived at the conclusion that the contract of lease in question between the PCSO and PGMC is illegal and, therefore, invalid, I find it unnecessary to dwell on the other issues raised in the pleadings and arguments of the parties. I, therefore, vote to give DUE COURSE to the petition and to declare the contract of lease in question between PCSO and PGMC, for the reasons aforestated, of no force and effect. MELO, J., dissenting: I submit that the petition before the Court deserves no less than outright dismissal for the reason that petitioners, as concerned citizens and as taxpayers and as members of Congress, do not possess the necessary legal standing to assail the validity of the contract of lease entered into by the Philippine Charity Sweepstakes Office and the Philippine Gaming Management Corporation relative to the establishment and operation of an "On-line Hi-Tech Lottery System" in the country. As announced in Lamb vs. Phipps (22 Phil. [1912], 559), "[J]udicial power in its nature, is the power to hear and decide causes pending between parties who have the right to sue and be sued in the courts of law and equity." Necessarily, this implies that a party must show a personal stake in the outcome of the controversy or an injury to himself that can be addressed by a favorable decision so as to warrant his invocation of the court's jurisdiction and to justify the court's remedial powers in his behalf (Warth vs. Seldin, 422 U.S. 490; Guzman vs. Marrero, 180 U.S. 81; McMicken vs. United States, 97 U.S. 204). Here, we have yet to see any of petitioners acquiring a personal stake in the outcome of the controversy or being placed in a situation whereby injury may be sustained if the contract of lease in question is implemented. It may be that the contract has somehow evoked public interest which petitioners claim to represent. But the alleged public interest which they pretend to represent is not only broad and encompassing but also strikingly and veritably indeterminate that one cannot truly say whether a handful of the public, like herein petitioners, may lay a valid claim of representation in behalf of the millions of citizens spread all over the land who may have just as many varied reactions relative to the contract in question.
Any effort to infuse personality on petitioners by considering the present case as a "taxpayer's suit" could not cure the lack of locus standi on the part of petitioners. As understood in this jurisdiction, a "taxpayer's suit" refers to a case where the act complained of directly involves the illegal disbursement of public funds derived from taxation (Pascual vs. Secretary of Public Works, 110 Phil. [1960] 331; Maceda vs. Macaraig, 197 SCRA [1991]; Lozada vs. COMELEC, 120 SCRA [1983] 337; Dumlao vs. COMELEC, 95 SCRA [1980] 392; Gonzales vs. Marcos, 65 SCRA [1975] 624). It cannot be overstressed that no public fund raised by taxation is involved in this case. In fact, it is even doubtful if the rentals which the PCSO will pay to the lessor for its operation of the lottery system may be regarded as "public fund". The PCSO is not a revenue- collecting arm of the government. Income or money realized by it from its operations will not and need not be turned over to the National Treasury. Rather, this will constitute corporate funds which will remain with the corporation to finance its various activities as authorized in its charter. And if ever some semblance of "public character" may be said to attach to its earnings, it is simply because PCSO is a government-owned or controlled entity and not a purely private enterprise. It must be conceded though that a "taxpayer's suit" had been allowed in a number of instances in this jurisdiction. For sure, after the trial was blazed by Pascual vs. Secretary of Public Works, supra, several more followed. It is to be noted, however, that in those occasions where this Court allowed such a suit, the case invariably involved either the constitutionality of a statute or the legality of the disbursement of public funds through the enforcement of what was perceived to be an invalid or unconstitutional statute or legislation (Pascual, supra; Philippine Constitution Association, Inc. vs. Jimenez, 15 SCRA [1965] 479; Philippine Constitution Association, Inc. vs. Mathay, 18 SCRA [1966] 300; Tolentino vs. COMELEC, 41 SCRA [1971] 702; Pelaez vs. Auditor General, 15 SCRA [1965] 569; Iloilo Palay and Corn Planters Association vs. Feliciano, 13 SCRA [1965] 377). The case before us is not a challenge to the validity of a statute or an attempt to restrain expenditure of public funds pursuant to an alleged invalid congressional enactment. What petitioners ask us to do is to nullify a simple contract of lease entered into by a government-owned corporation with a private entity. That contract, as earlier pointed out, does not involve the disbursement of public funds but of strictly corporate money. If every taxpayer, claiming to have interest in the contract, no matter how remote, could come to this Court and seek nullification of said contract, the day may come when the activities of government corporate entities will ground to a standstill on account of nuisance suits filed against them by persons whose supposed interest in the contract is as remote and as obscure as the interest of any man in the street. The dangers attendant thereto are not hard to discern and this Court must not allow them to come to pass. One final observation must be emphasized. When the petition at bench was filed, the Court decided to hear the case on oral argument on the initial perception that a constitutional issue could be involved. However, it now appears that no question of constitutional dimension is at stake as indeed the majority barely touches on such an issue, concentrating as it does on its interpretation of the contract between the Philippine Charity Sweepstakes Office and the Philippine Gaming Management Corporation. I, therefore, vote to dismiss the petition.
PUNO, J., dissenting: At the outset, let me state that my religious faith and family upbringing compel me to regard gambling, regardless of its garb, with hostile eyes. Such antagonism tempts me to view the case at bench as a struggle between good and evil, a fight between the forces of light against the forces of darkness. I will not, however, yield to that temptation for we are not judges of the Old Testament type who were not only arbiters of law but were also high priests of morality. I will therefore strictly confine the peregrinations of my mind to the legal issues for resolution: (1) whether or not the petitioners have the Locus standi to file the petition at bench; and (2) assuming their locus standi, whether or not the Contract of Lease between PCSO and PGMC is null and void considering: (a) section 1 of R.A. No. 1169, as amended by B.P. Blg. 42 (Charter of PCSO) which prohibits PCSO from holding and conducting lotteries "in collaboration, association or joint venture with any person, association, company or entity"; (b) Act No. 3836 which requires a congressional franchise before any person or entity can establish and operate a telecommunication system; (c) section 11, Art. XII of the Constitution, which requires that for a corporation to operate a public utility, at least 60% of its capital must be owned by Filipino citizens; and (d) R.A. No. 7042, otherwise known as the "Foreign Investments Act", which includes all forms of gambling in its "negative list." While the legal issues abound, I deferentially submit that the threshold issue is the locus standi, or standing to sue, of petitioners. The petition describes petitioner Kilosbayan, Inc., as a non-stock corporation composed of "civic spirited citizens, pastors, priests, nuns, and lay leaders who are committed to the cause of truth, justice, and national renewal." 1 Petitioners Jovito R. Salonga, Cirilo A. Rigos, Ernie Camba, Emilio C. Capulong, Jr., Jose Abcede, Christine Tan, Felipe L. Gozon, Rafael G. Fernando, Raoul V. Victorino, Jose Cunanan, and Quintin S. Doromal joined the petition in their capacity as trustees of Kilosbayan, Inc., and as taxpayers and concerned citizens. 2 Petitioners Freddie Webb and Wigberto Taada joined the petition as senators, taxpayers and concerned citizens. 3 Petitioner Joker P. Arroyo joined the petition as a member of the House of Representative, a taxpayer and a concerned citizen. 4 With due respect to the majority opinion, I wish to focus on the interstices of locus standi, a concept described by Prof. Paul Freund as "among the most amorphous in the entire domain of public law." The requirement of standing to sue inheres from the definition of judicial power. It is not merely a technical rule of procedure which we are at liberty to disregard. Section 1, Article VIII of the Constitution provides: xxx xxx xxx Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Italics supplied) The phrase "actual controversies involving rights which are legally demandable and enforceable" has acquired a cultivated meaning given by courts. It spells out the requirements that must be satisfied
before one can come to court to litigate a constitutional issue. Our distinguished colleague, Mr. Justice Isagani A. Cruz, gives a shorthand summary of these requirements when he states that no constitutional question will be heard and decided by courts unless there is a showing of the following: . . . (1) there must be an actual case or controversy; (2) the question of constitutionality must be raised by the proper party; (3) the constitutional question must be raised at the earliest possible opportunity; and (4) the decision of the constitutional question must be necessary to the determination of the case itself. 5 The complexion of the rule on locus standi has been undergoing a change. Mr. Justice Cruz has observed the continuing relaxation of the rule on standing, 6 thus: xxx xxx xxx A proper party is one who has sustained or is in immediate danger of sustaining an injury as a result of the act complained of. Until and unless such actual or potential injury is established, the complainant cannot have the legal personality to raise the constitutional question. In Tileson v. Ullmann, a physician questioned the constitutionality of a law prohibiting the use of contraceptives, upon the ground that it might prove dangerous to the life or health of some of his patients whose physical condition would not enable them to bear the rigors of childbirth. The court dismissed the challenge, holding that the patients of the physician and not the physician himself were the proper parties. In Cuyegkeng v. Cruz, the petitioner challenged in a quo warranto proceeding the title of the respondent who, he claimed, had been appointed to the board of medical examiners in violation of the provisions of the Medical Act of 1959. The Supreme Court dismissed the petition, holding that Cuyegkeng had not made a claim to the position held by Cruz and therefore could not be regarded as a proper party who had sustained an injury as a result of the questioned act. In People v. Vera, it was held that the Government of the Philippines was a proper party to challenge the constitutionality of the Probation Act because, more than any other, it was the government itself that should be concerned over the validity of its own laws. In Ex Parte Levitt, the petitioner, an American taxpayer and member of the bar, filed a motion for leave to question the qualifications of Justice Black who, he averred, had been appointed to the U.S. Supreme Court in violation of the Constitution of the United States. The Court dismissed the petition, holding that Levitt was not a proper party since he was not claiming the position held by Justice Black. The rule before was that an ordinary taxpayer did not have the proper party personality to question the legality of an appropriation law since his interest in the sum appropriated was not substantial enough. Thus, in Custodio v. Senate President, a challenge by an ordinary taxpayer to the validity of a law granting back pay to government officials, including members of Congress, during the period corresponding to the Japanese Occupation was dismissed as having been commenced by one who was not a proper party.
Since the first Emergency Powers Cases, however, the rule has been changed and it is now permissible for an ordinary taxpayer, or a group of taxpayers, to raise the question of the validity of an appropriation law. As the Supreme Court then put it. "The transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure." In Tolentino v. Commission on Elections, it was held that a senator had the proper party personality to seek the prohibition of a plebiscite for the ratification of a proposed constitutional amendment. InPHILCONSA v. Jimenez, an organization of taxpayers and citizens was held to be a proper party to question the constitutionality of a law providing for special retirement benefits for members of the legislature. In Sanidad v. Commission on Elections, the Supreme Court upheld the petitioners as proper parties, thus As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo C. Sanidad and Pablito V. Sanidad) possess locus standi to challenge the constitutional premise of Presidential Decree Nos. 991, 1031, and 1033. It is now an ancient rule that the valid source of a statute Presidential Decrees are of such nature may be contested by one who will sustain a direct injury as a result of its enforcement. At the instance of taxpayers, laws providing for the disbursement of public funds may be enjoined, upon the theory that the expenditure of public funds by an officer of the State for the purpose of executing an unconstitutional act constitutes a misapplication of such funds. The breadth of Presidential Decree No. 991 carries an appropriation of Five Million Pesos for the effective implementation of its purposes. Presidential Decree No. 1031 appropriates the sum of Eight Million Pesos to carry out its provisions. The interest of the aforenamed petitioners as taxpayers in the lawful expenditure of these amounts of public money sufficiently clothes them with that personality to litigate the validity of the Decrees appropriating said funds. Moreover, as regard taxpayer's suits, this Court enjoys that open discretion to entertain the same or not. For the present case, We deem it sound to exercise that discretion affirmatively so that the authority upon which the disputed Decrees are predicated may be inquired into. In Lozada v. Commission on Elections, however, the petitioners were held without legal standing to demand the filling of vacancies in the legislature because they had only "a generalized interest' shared with the rest of the citizenry." Last July 30, 1993, we further relaxed the rule on standing in Oposa, et al. v. Hon. Fulgencio S. Factoran, Jr., 7where we recognized the locus standi of minors representing themselves as well as generations unborn to protect their constitutional right to a balanced and healthful ecology. I am perfectly at peace with the drift of our decisions liberalizing the rule on locus standi. The once stubborn disinclination to decide constitutional issues due to lack of locus standi is incompatible with the expansion of judicial power mandated in section 1 of Article VIII of the Constitution, i.e., "to determine whether or not there has been a grave abuse of discretion, amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government." As we held thru the ground breaking ponencia of Mr. Justice Cruz in Daza v. Singson, 8 this provision no longer precludes the Court
from resolving political questions in proper cases. But even perusing this provision as a constitutional warrant for the court to enter the once forbidden political thicket, it is clear that the requirement of locus standi has not been jettisoned by the Constitution for it still commands courts in no uncertain terms to settle only "actual controversies involving rights which are legally demandable and enforceable." Stated otherwise, courts are neither free to decide all kinds of cases dumped into their laps nor are they free to open their doors to all parties or entities claiming a grievance. The rationale for this constitutional requirement of locus standi is by no means trifle. It is intended "to assure a vigorous adversary presentation of the case, and, perhaps more importantly to warrant the judiciary's overruling the determination of a coordinate, democratically elected organ of government." 9 It thus goes to the very essence of representative democracies. As Mr. Justice Powell carefully explained in U.S. v. Richardson, 10 viz: Relaxation of standing requirements is directly related to the expansion of judicial power. It seems to me inescapable that allowing unrestricted taxpayer or citizen standing would significantly alter the allocation of power at the national level, with a shift away from a democratic form of government. I also believe that repeated and essentially head-on confrontations between the life-tenured branch and the representative branches of government will not, in the long run, be beneficial to either. The public confidence essential to the former and the vitality critical to the latter may well erode if we do not exercise self- restraint in the utilization of our power to negative the actions of the other branches. We should be ever mindful of the contradictions that would arise if a democracy were to permit at large oversight of the elected branches of government by a non-representative, and in large measure insulated, judicial branch. Moreover, the argument that the Court should allow unrestricted taxpayer or citizen standing underestimates the ability of the representative branches of the Federal Government to respond to the citizen pressure that has been responsible in large measure for the current drift toward expanded standing. Indeed, taxpayer or citizen advocacy, given its potentially broad base, is precisely the type of leverage that in a democracy ought to be employed against the branches that were intended to be responsive to public attitudes about the appropriate operation of government. "We must as judges recall that, as Mr. Justice Holmes wisely observed, the other branches of Government are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts." Unrestrained standing in federal taxpayer or citizen suits would create a remarkably illogical system of judicial supervision of the coordinate branches of the Federal Government. Randolph's proposed Council of Revision, which was repeatedly rejected by the Framers, at least had the virtue of being systematic; every law passed by the legislature automatically would have been previewed by the judiciary before the law could take effect. On the other hand, since the judiciary cannot select the taxpayers or citizens who bring suit or the nature of the suits, the allowance of public actions would produce uneven and sporadic review, the quality of which would be influenced by the resources and skill of the particular plaintiff. And issues would be presented in abstract form, contrary to the Court's recognition that "judicial review is effective largely because it is not available simply at the behest of a partisan faction, but is exercised only to remedy a particular, concrete injury." Sierra Club v. Morton, 405 U.S. 727, 740741, n. 16 (1972).
A lesser but not insignificant reason for screening the standing of persons who desire to litigate constitutional issues is economic in character. Given the sparseness of our resources, the capacity of courts to render efficient judicial service to our people is severely limited. For courts to indiscriminately open their doors to all types of suits and suitors is for them to unduly overburden their dockets, and ultimately render themselves ineffective dispensers of justice. To be sure, this is an evil that clearly confronts our judiciary today. Prescinding from these premises, and with great reluctance, I am not prepared to concede the standing to sue of petitioners. On a personal level, they have not shown that elemental injury in fact which will endow them with a standing to sue. It must be stressed that petitioners are in the main, seeking the nullity not of a law but of a Contract of Lease. Not one of the petitioners is a party to the Contract of Lease executed between PCSO and PGMC. None of the petitioners participated in the bidding, and hence they are not losing bidders. They are complete strangers to the contract. They stand neither to gain nor to lose economically by its enforcement. It seems to me unusual that an unaffected third party to a contract could be allowed to question its validity. Petitioner Kilosbayan cannot justify this officious interference on the ground of its commitment to "truth, justice and national renewal." Such commitment to truth, justice and national renewal, however noble it may be, cannot give Kilosbayan a roving commission to check the validity of contracts entered into by the government and its agencies. Kilosbayan is not a private commission on audit. Neither can I perceive how the other petitioners can be personally injured by the Contract of Lease between PCSO and PGMC even if petitioner Salonga assails as unmitigated fraud the statistical probability of winning the lotto as he compared it to the probability of being struck twice by lightning. The reason is obvious: none of the petitioners will be exposed to this alleged fraud for all of them profess to abjure playing the lotto. It is self-evident that lotto cannot physically or spiritually injure him who does not indulge in it. Petitioners also contend they have locus standi as taxpayers. But the case at bench does not involve any expenditure of public money on the part of PCSO. In fact, paragraph 2 of the Contract of Lease provides that it is PGMC that shall build, furnish, and maintain at its own expense and risk the facilities for the OnLine Lottery System of PCSO and shall bear all maintenance and other costs. Thus, PGMC alleged it has already spent P245M in equipment and fixtures and would be investing close to P1 billion to supply adequately the technology and other requirements of PCSO. 11 If no tax money is being illegally deflected in the Contract of Lease between PCSO and PGMC, petitioners have no standing to impugn its validity as taxpayers. Our ruling in Dumlao v. Comelec, 12 settled this issue well enough, viz: However, the statutory provisions questioned in this case, namely, sec. 7, BP Blg. 51, and sections 4, 1, and 5 BP Blg. 52, do not directly involve the disbursement of public funds. While, concededly, the elections to be held involve the expenditure of public moneys, nowhere in their Petition do said petitioners allege that their tax money is "being extracted and spent in violation of specific constitutional protections against abuses of legislative power" (Flast v. Cohen, 392 U.S. 83 [1960]), or that there is a misapplication of such funds by respondent COMELEC (see Pascual vs. Secretary of Public Works, 110 Phil. 331 [1960]), or that public money is being deflected to any improper purpose. Neither
do petitioners seek to restrain respondent from wasting public funds through the enforcement of an invalid or unconstitutional law. (Philippine Constitution Association vs. Mathay, 18 SCRA 300 [1966]), citing Philippine Constitution Association vs. Gimenez, 15 SCRA 479 [1965]). Besides, the institution of a taxpayer's suit, per se, is no assurance of judicial review. As held by this Court in Yan vs. Macapagal (43 SCRA 677 [1972]), speaking through our present Chief Justice, this Court is vested with discretion as to whether or not a taxpayer's suit should be entertained. Next, petitioners plead their standing as "concerned citizens." As citizens, petitioners are pleading that they be allowed to advocate the constitutional rights of other persons who are not before the court and whose protection is allegedly their concern. A citizen qua citizen suit urges a greater relaxation of the rule on locus standi. I feel no aversion to the further relaxation of the rule on standing to accommodate what in other jurisdictions is known as an assertion of jus tertii in constitutional litigation provided the claimant can demonstrate: (1) an injury in fact to himself, and (2) the need to prevent the erosion of a preferred constitutional right of a third person. As stressed before, the first requirement of injury in fact cannot be abandoned for it is an essential element for the exercise of judicial power. Again, as stressed by Mr. Justice Powell, viz: 13 The revolution in standing doctrine that has occurred, particularly in the 12 years since Baker v. Carr, supra, has not meant, however, that standing barriers have disappeared altogether. As the Court noted in Sierra Club, "broadening the categories of injury that may be alleged in support of standing is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury." 405 U.S., at 738 . . . Indeed, despite the diminution of standing requirements in the last decade, the Court has not broken with the traditional requirement that, in the absence of a specific statutory grant of the right of review, a plaintiff must allege some particularized injury that sets him apart from the man on the street. I recognize that the Court's allegiance to a requirement of particularized injury has on occasion required a reading of the concept that threatens to transform it beyond recognition. E.G., Baker v. Carr, supra; Flast v. Cohen, supra. But despite such occasional digressions, the requirement remains, and I think it does so for the reasons outlined above. In recognition of those considerations, we should refuse to go the last mile towards abolition of standing requirements that is implicit in broadening the "precarious opening" for federal taxpayers created by Flast, see 392 U.S., at 116 (Mr. Justice Fortas, concurring) or in allowing a citizen qua citizen to invoke the power of the federal courts to negative unconstitutional acts of the Federal Government. In sum, I believe we should limit the expansion of federal taxpayer and citizen standing in the absence of specific statutory authorization to an outer boundary drawn by the results in Flast and Baker v. Carr. I think we should face up to the fact that all such suits are an effort "to employ a federal court as a forum in which to air . . . generalized grievances about the conduct of government or the allocation of power in the Federal System." Flast v. Cohen, 392 U.S., at 106. The Court should explicitly reaffirm traditional prudential barriers against such public actions. My reasons for this view are rooted in respect for democratic processes and in the conviction that "[t]he powers of the federal judiciary will be adequate
for the great burdens placed upon them only if they are employed prudently, with recognition of the strengths as well as the hazards that go with our kind of representative government." Id., at 131 The second requirement recognizes society's right in the protection of certain preferred rights in the Constitution even when the rightholders are not before the court. The theory is that their dilution has a substantial fall out detriment to the rights of others, hence the latter can vindicate them. In the case at bench, it is difficult to see how petitioners can satisfy these two requirements to maintain a jus tertiiclaim. They claim violation of two constitutional provisions, to wit: Section 1, Article XIII. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good. To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments. and Section 11, Article XII. - No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines at least sixty per centum of whose capital is owned by such citizens, nor shall such franchise, certificate, or authorizations be exclusive in character or for a longer period than fifty years. Neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common good so requires. The State shall encourage equity participation in public utilities by the general public. The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital, and all the executive and managing officers of such corporation or association must be citizen of the Philippines. Section 1, Article XIII of the Constitution cannot be the matrix of petitioners' jus tertii claim for it expresses no more than a policy direction to the legislative in the discharge of its ordained duty to give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities and remove cultural inequities by equitably diffusing wealth and political power for the common good. Whether the act of the legislature in amending the charter of PCSO by giving it the authority to conduct lotto and whether the Contract of Lease entered into between PCSO and PGMC are incongruent to the policy direction of this constitutional provision is a highly debatable proposition and can be endlessly argued. Respondents steadfastly insist that the operation of lotto will increase the revenue base of PCSO and enable government to provide a wider range of social services to the people. They also allege that the operation of high-tech lotto will eradicate illegal jueteng. Petitioners are scandalized by this submission. They dismiss gambling as evil per se and castigate government for attempting to correct a wrong by
committing another wrong. In any event, the proper forum for this debate, however cerebrally exciting it may be, is not this court but congress. So we held in PCSO v. Inopiquez, to wit: 14 By bringing their suit in the lower court, the private respondents in G.R. No. 79084 do not question the power of PCSO to conduct the Instant Sweepstakes game. Rather, they assail the wisdom of embarking upon this project because of their fear of the "pernicious repercussions" which may be brought about by the Instant Sweepstakes Game which they have labelled as "the worst form of gambling" which thus "affects the moral values" of the people. The Court, as held in several cases, does not pass upon questions of wisdom, justice, or expediency of legislation and executive acts. It is not the province of the courts to supervise legislation or executive orders as to keep them within the bounds of propriety, moral values and common sense. That is primarily and even exclusively a concern of the political departments of the government; otherwise, there will be a violation of the principle of separation of powers. (Italics supplied) I am not also convinced that petitioners can justify their locus standi to advocate the rights of hypothetical third parties not before the court by invoking the need to keep inviolate section 11, Article XII of the Constitution which imposes a nationality requirement on operators of a public utility. For even assuming arguendo that PGMC is a public utility, still, the records do not at the moment bear out the claim of petitioners that PGMC is a foreign owned and controlled corporation. This factual issue remains unsettled and is still the subject of litigation by the parties in the Securities and Exchange Commission. We are not at liberty to anticipate the verdict on this contested factual issue. But over and above this consideration, I respectfully submit that this constitutional provision does not confer on third parties any right of a preferred status comparable to the Bill of Rights whose dilution will justify petitioners to vindicate them in behalf of its rightholders. The legal right of hypothetical third parties they profess to advocate is to my mind too impersonal, too unsubstantial, too indirect, too amorphous to justify their access to this Court and the further lowering of the constitutional barrier of locus standi. Again, with regret, I do not agree that the distinguished status of some of the petitioners as lawmakers gives them the appropriate locus standi. I cannot perceive how their constitutional rights and prerogatives as legislators can be adversely affected by the contract in question. Their right to enact laws for the general conduct of our society remains unimpaired and undiminished. 15 Their status as legislators, notwithstanding, they have to demonstrate that the said contract has caused them to suffer a personal, direct, and substantial injury in fact. They cannot simply advance a generic grievance in common with the people in general. I am not unaware of our ruling in De Guia v. Comelec, 16 viz: Before addressing the crux of the controversy, the Court observes that petitioner does not allege that he is running for reelection, much less, that he is prejudiced by the election, by district, in Paraaque. As such, he does not appear to have locus standi, a standing in law, a personal or substantial interest. (Sanidad vs. COMELEC, G.R. No. L-44640, October 12, 1976, 73 SCRA 333; Municipality of Malabang vs. Benito, G.R. No. L-28113, March 28, 1969, 27 SCRA 533). He does not also allege any legal right that has been violated by respondent. If for this alone, petitioner does not appear to have any cause of action.
However, considering the importance of the issue involved, concerning as it does the political exercise of qualified voters affected by the apportionment, and petitioner alleging abuse of discretion and violation of the Constitution by respondent, We resolved to brush aside the question of procedural infirmity, even as We perceive the petition to be one of declaratory relief. We so held similarly through Mr. Justice Edgardo L. Paras in Osmena vs. Commission on Elections. It is my respectful submission, however, that we should re-examine de Guia. It treated the rule on locus standi as a mere procedural rule. It is not a plain procedural rule but a constitutional requirement derived from section 1, Article VIII of the Constitution which mandates courts of justice to settle only "actual controversies involving rights which are legally demandable and enforceable." The phrase has been construed since time immemorial to mean that a party in a constitutional litigation must demonstrate a standing to sue. By downgrading the requirement onlocus standi as a procedural rule which can be discarded in the name of public interest, we are in effect amending the Constitution by judicial fiat. De Guia would also brush aside the rule on locus standi if a case raises an important issue. In this regard, I join the learned observation of Mr. Justice Feliciano: "that it is not enough for the Court simply to invoke 'public interest' or even 'paramount considerations of national interest,' and to say that the specific requirements of such public interest can only be ascertained on a 'case to case' basis. For one thing, such an approach is not intellectually satisfying. For another, such an answer appears to come too close to saying that locus standi exists whenever at least a majority of the Members of this Court participating in a case feel that an appropriate case for judicial intervention has arisen." I also submit that de Guia failed to perceive that the rule on locus standi has little to do with the issue posed in a case, however, important it may be. As well pointed out in Flast v. Cohen: 17 The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated. The "gist of the question of standing" is whether the party seeking relief has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S. 186, 204 (1962). In other words, when standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable. Thus, a party may have standing in a particular case, but the federal court may nevertheless decline to pass on the merits of the case because, for example, it presents a political question. A proper party is demanded so that federal courts will not be asked to decide "ill-defined controversies over constitutional issues," United public Workers v. Mitchell, 330 U.S. 75, 90 (1947), or a case which is of "a hypothetical or abstract character," Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 240 (1937). It is plain to see that in de Guia, the court took an unorthodox posture, to say the least. It held there was no proper party before it, and yet it resolved the issues posed by the petition. As there was no proper party before the court, its decision is vulnerable to be criticized as an advisory opinion.
With due respect, the majority decision appears to have set a dangerous precedent by unduly trivializing the rule on locus standi. By its decision, the majority has entertained a public action to annul a private contract. In so doing, the majority may have given sixty (60) million Filipinos the standing to assail contracts of government and its agencies. This is an invitation for chaos to visit our law on contract, and certainly will not sit well with prospective foreign investors. Indeed, it is difficult to tread the path of the majority on this significant issue. The majority granted locus standi to petitioners because of lack of any other party with more direct and specific interest. But one has standing because he has standing on his own and standing cannot be acquired because others with standing have refused to come to court. The thesis is also floated that petitioners have standing as they can be considered taxpayers with right to file derivative suit like a stockholder's derivative suit in private corporations. The fact, however, is that PCSO is not a private but a quasi-public corporation. Our law on private corporation categorically sanctions stockholder's derivative suit. In contrast, our law on public corporation does not recognize this so-called taxpayer's derivative suit. Hence, the idea of a taxpayer's derivative suit, while alluring, has no legal warrant. Our brethren in the majority have also taken the unprecedented step of striking down a contrast at the importunings of strangers thereto, but without justifying the interposition of judicial power on any felt need to prevent violation of an important constitutional provision. The contract in question was voided on the sole ground that it violated an ordinary statute, section 1 of R.A. 1169, as amended by B.P. Blg. 42. If there is no provision of the Constitution that is involved in the case at bench, it boggles the mind how the majority can invoke considerations of national interest to justify its abandonment of the rule on locus standi. The volume of noise created by the case cannot magically convert it to a case of paramount national importance. By its ruling, the majority has pushed the Court in unchartered water bereft of any compass, and it may have foisted the false hope that it is the repository of all remedies. If I pay an unwavering reverence to the rule of locus standi, it is because I consider it as a touchstone in maintaining the proper balance of power among the three branches of our government. The survival of our democracy rests in a large measure on our ability to maintain this delicate equipoise of powers. For this reason, I look at judicial review from a distinct prism. I see it both as a power and a duty. It is a power because it enables the judiciary to check excesses of the Executive and the Legislative. But, it is also a duty because its requirement of locus standi, among others, Executive and the Legislative. But, it is also a duty because its requirement oflocus standi, among others, keeps the judiciary from overreaching the powers of the other branches of government. By balancing this duality, we are able to breathe life to the principle of separation of powers and prevent tyranny. To be sure, it is our eternal concern to prevent tyranny but that includes tyranny by ourselves. The Constitution did not install a government by the judiciary, nay, not a government by the unelected. In offering this submission, I reject the sublimal fear that an unyielding insistence on the rule on locus standi will weaken the judiciary vis-a-vis the other branches of government. The hindsight of history ought to tell us that it is not powerper se that strengthens. Power unused is preferable than power misused. We contribute to constitutionalism both by the use of our power to decide and its non use. As well said, the cases we decide are as significant as the cases we do not decide. Real power belongs to him who has power over power.
IN VIEW WHEREOF, and strictly on the ground of lack of locus standi on the part of petitioners, I vote to DENY the petition. VITUG, J., dissenting: Judicial power encompasses both an authority and duty to resolve "actual controversies involving rights which are legally demandable and enforceable" (Article VIII, Section 1, 1987 Constitution). As early as the case of Lamb vs. Phipps, 1 this Court ruled: "Judicial power, in its nature, is the power to hear and decide causes pending between parties who have the right to sue in the courts of law and equity." 2 An essential part of, and corollary to, this principle is the locus standi of a party litigant, referring to one who is directly affected by, and whose interest is immediate and substantial in, the controversy. The rule requires that a party must show a personal stake in the outcome of the case or an injury to himself that can be redressed by a favorable decision so as to warrant his invocation of the court's jurisdiction and to justify the exercise of the court's remedial powers in his behalf. 3 If it were otherwise, the exercise of that power can easily become too unwieldy by its sheer magnitude and scope to a point that may, in no small degree, adversely affect its intended essentiality, stability and consequentiality. Locus standi, nevertheless, admits of the so-called "taxpayer's suit." Taxpayer's suits are actions or proceedings initiated by one or more taxpayers in their own behalf or, conjunctively, in representation of others similarly situated for the purpose of declaring illegal or unauthorized certain acts of public officials which are claimed to be injurious to their common interests as such taxpayers (Cf. 71 Am Jur 2d., 179-180). The principle is predicated upon the theory that taxpayers are, in equity, the cestui que trust of tax funds, and any illegal diminution thereof by public officials constitutes a breach of trust even as it may result in an increased burden on taxpayers (Haddock vs. Board of Public Education, 86 A 2d 157; Henderson vs. McCormick, 17 ALR 2d 470). Justice Brandeis of the United States Supreme Court, in his concurring opinion in Ashwander vs. Tennessee Valley Authority (297 U.S. 288), said: . . . . The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. Tyler v. The Judges, 179 U.S. 405; Hendrick v. Maryland, 234 U.S. 610, 621. Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right. Thus, the challenge by a public official interested only in the performance of his official duty will not be entertained. Columbus & Greenville Ry. v. Miller, 283 U.S. 96, 99-100. In Fairchild v. Hughes, 258 U.S. 126, the Court affirmed the dismissal of a suit brought by a citizen who sought to have the Nineteenth Amendment declared unconstitutional. In Massachusetts v. Mellon, 262 U.S. 447, the challenge of the federal Maternity Act was not entertained although made by the Commonwealth on behalf of all its citizens." Justice Brandeis' view, shared by Justice Frankfurter in Joint Anti-Fascist Refugee Commission vs. McGrath(351 U.S. 123), was adopted by the U.S. Supreme Court in Flast vs. Cohen (392 U.S. 83) which held that it is only when a litigant is able to show such a personal stake in the controversy as to assure a concrete adverseness in the issues submitted that legal standing can attach.
A "taxpayer's suit," enough to confer locus standi to a party, we have held before, is understood to be a case where the act complained of directly involves the illegal disbursement of public funds derived from taxation. 4 It is not enough that the dispute concerns public funds. A contrary rule could easily lead to a limitless application of the term "taxpayer's suit," already by itself a broad concept, since a questioned act of government would almost so invariably entail, as a practical matter, a financial burden of some kind. To be sure, serious doubts have even been raised on the propriety and feasibility of unqualifiedly recognizing the "taxpayer's suit" as an exception from the standard rule of requiring a party who invokes the exercise of judicial power to have a real and personal interest or a direct injury in the outcome of a controversy. This Court has heretofore spoken on the matter, at times even venturing beyond the usual understanding of its applicability in the name of national or public interest. It is remarkable, nevertheless, that the accepted connotation of locus standi has still managed to be the rule, sanctioning, by way of exception, the so-called "taxpayer's suit" which courts accept on valid and compelling reasons. A provision which has been introduced by the 1987 Constitution is a definition, for the first time in our fundamental law, of the term "judicial power," as such authority and duty of courts of justice "to settle actual controversies involving rights which are legally demandable and enforceable and to determine whether or not there has been a grave abuse of discretion, amounting to lack or excess of jurisdiction, on the part of any branch or instrumentality of the Government" (Article VIII, Section 1, Constitution). I take it that the provision has not been intended to unduly mutate, let alone to disregard, the long established rules on locus standi. Neither has it been meant, I most respectfully submit, to do away with the principle of separation of powers and its essential incidents such as by, in effect, conferring omnipotence on, or allowing an intrusion by, the courts in respect to purely political decisions, the exercise of which is explicitly vested elsewhere, and subordinate, to that of their own, the will of either the Legislative Department or the Executive Department both co- equal, independent and coordinate branches, along with the Judiciary, in our system of government. Again, if it were otherwise, there indeed would be truth to the charge, in the words of some constitutionalists, that "judicial tyranny" has been institutionalized by the 1987 Constitution, an apprehension which should, I submit, rather be held far from truth and reality. In sum, while any act of government, be it executive in nature or legislative in character, may be struck down and declared a nullity either because it contravenes an express provision of the Constitution or because it is perceived and found to be attended by or the result of grave abuse of discretion, amounting to lack or excess of jurisdiction, that issue, however, must first be raised in a proper judicial controversy. The Court's authority to look into and grant relief in such cases would necessitate locus standi on the part of party litigants. This requirement, in my considered view, is not merely procedural or technical but goes into the essence of jurisdiction and the competence of courts to take cognizance of justiciable disputes. In Bugnay Construction and Development Corporation vs. Laron, 5 this Court ruled:
. . . . Considering the importance to the public of a suit assailing the constitutionality of a tax law, and in keeping with the Court's duty, specially explicated in the 1987 Constitution, to determine whether or not the other branches of the Government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them, the Supreme Court may brush aside technicalities of procedure and take cognizance of the suit. (Citing Kapatiran vs. Tan, G.R. No. 81311, June 30, 1988.) However, for the above rule to apply, it is exigent that the taxpayer-plaintiff sufficiently show that he would be benefited or injured by the judgment or entitled to the avails of the suit as a real party in interest. (Citing Estate of George Litton vs. Mendoza, G.R. No. 49120, June 30, 1988.) Before he can invoke the power of judicial review, he must specifically prove that he has sufficient interest in preventing the illegal expenditure of money raised by taxation (citing 11 Am. Jur. 761; Dumlao, et al. vs. Commission on Elections, 95 SCRA 392) and that he will sustain a direct injury as a result of the enforcement of the questioned statute or contract. (Citing Sanidad, et al. vs. Commission on Elections, et al., 73 SCRA 333.) It is not sufficient that he has merely a general interest common to all members of the public. (Citing Ex Parte Levitt, 302 U.S. 633, cited in 15 SCRA 497, Annotation.) As so well pointed out by Mr. Justice Camilo D. Quiason during the Court's deliberations, "due respect and proper regard for the rule on locus standi would preclude the rendition of advisory opinions and other forms of pronouncement on abstract issues, avoid an undue interference on matters which are not justiciable in nature and spare the Court from getting itself involved in political imbroglio." The words of Senate President Edgardo J. Angara, carry wisdom; we quote: The powers of the political branches of our government over economic policies is rather clear: the Congress is to set in broad but definite strokes the legal framework and structures for economic development, while the Executive provides the implementing details for realizing the economic ends identified by Congress and executes the same. xxx xxx xxx If each economic decision made by the political branches of government, particularly by the executive, are fully open to re-examination by the judicial branch, then very little, if any, reliance can be placed by private economic actors on those decisions. Investors would always have to factor in possible costs arising from judicially-determined changes affecting their immediate business, notwithstanding assurances by executive authorities. Judicial decisions are, in addition, inflexible and can never substitute for sound decision-making at the level of those who are assigned to execute the laws of the land. Since judicial power cannot be exercised unless an actual controversy is brought before the courts for resolution, decisions cannot be properly modified unless another appropriate controversy arises." (Sen. Edgardo J. Angara, "The Supreme Court in Economic Policy Making," Policy Review A Quarterly Journal of Policy Studies, Vol. 1, No. 1, January-March 1994, published by the Senate Policy Studies Group, pp. 2-3.)
A further set-back in entertaining the petition is that it unfortunately likewise strikes at factual issues. The allegations to the effect that irregularities have been committed in the processing and evaluation of the bids to favor respondent PGMC; that the Malacaang Special Review Committee did not verify warranties embodied in the contract; that the operation of telecommunication facilities is indispensable in the operation of the lottery system; the involvement of multi-national corporations in the operation of the on-line "hi-tech" lottery system, and the like, require the submission of evidence. This Court is not a trier of facts, and it cannot, at this time, resolve the above issues. Just recently, the Court has noted petitioners' manifestation of its petition with the Securities and Exchange Commission "for the nullification of the General Information Sheets of PGMC" in respect particularly to the nationality holdings in the corporation. The doctrine of primary jurisdiction would not justify a disregard of the jurisdiction of, nor would it permit us to now preempt, said Commission on the matter. Petitioners strongly assert, in an attempt to get the Court's concurrence in accepting the petition, that since lottery is a game of chance, the "lotto" system would itself be a "crime against morals" defined by Articles 195-199 6 of the Revised Penal Code. Being immoral and a criminal offense under the Revised Penal Code, petitioners contend, any special law authorizing gambling must, by all canons of statutory constructions, be interpreted strictly against the grantee. Citing previous decisions of this Court, they maintain that lottery is gambling, pure and simple, 7 and that this Court has consistently condemned the immorality and illegality of gambling to be a "national offense and not a minor transgression;" 8 "that it is a social scourge which must be stamped out;" 9 and, "that it is pernicious to the body politic and detrimental to the nation and its citizens." 10 I most certainly will not renounce this Court's above concerns. Nevertheless, the Court must recognize the limitations of its own authority. Courts neither legislate nor ignore legal mandates. Republic Act No. 1169, as amended, explicitly gives public respondent PCSO the authority and power "to hold and conduct sweepstakes races, lotteries, and other similar activities." In addition, it is authorized: c. To undertake any other activity that will enhance its funds generation, operations and funds management capabilities, subject to the same limitations provided for in the preceding paragraph. It shall have a Board of Directors, hereinafter designated the Board, composed of five members who shall be appointed, and whose compensation and term of office shall be fixed, by the President. xxx xxx xxx Sec.9. Powers and functions of the Board of Directors. The Board of Directors of the Office shall have the following powers and functions. (a) To adopt or amend such rules and regulations to implement the provisions of this Act. xxx xxx xxx
(d) To promulgate rules and regulations for the operation of the Office and to do such act or acts as may be necessary for the attainment of its purposes and objectives. (Emphasis supplied). In People vs. Dionisio, 11 cited by the petitioners themselves, we remarked: "What evils should be corrected as pernicious to the body politic, and how correction should be done, is a matter primarily addressed to the discretion of the legislative department, not of the courts . . . ." In Valmonte vs. PCSO, 12 we also said: The Court, as held in several cases, does not pass upon questions of wisdom, justice or expediency of legislation and executive acts. It is not the province of the courts to supervise legislation or executive orders as to keep them within the bounds of propriety, moral values and common sense. That is primarily and even exclusively a concern of the political departments of the government; otherwise, there will be a violation of the principle of separation of powers. The constraints on judicial power are clear. I feel, the Court must thus beg off, albeit not without reluctance, from giving due course to the instant petition. Accordingly, I vote for the dismissal of the petition. KAPUNAN, J., dissenting: I regret that I am unable to join my colleagues in the majority in spite of my own personal distaste for gambling and other gaming operations. Such considerations aside, I feel there are compelling reasons why the instant petition should be dismissed. I shall forthwith state the reasons why. Petitioners anchor their principal objections against the contract entered into between the Philippine Charity Sweepstakes Office (PCSO) and the PGMC on the ground that the contract entered into by the PCSO with the PGMC violates the PCSO Charter (R.A. No. 1169 as amended by B.P. Blg 427, specifically section 1 thereof which bars the said body from holding conducting lotteries "in collaboration, association or joint venture with any person association, company or entity."). However, a perusal of the petition reveals that the compelling reasons behind it, while based on apparently legal questions involving the contract between the PCSO and the PGMC, are prompted by the petitioners' moral objections against the whole idea of gambling operations operated by the government through the PCSO. The whole point of the petition, in essence, is a fight between good and evil, between the morality or amorality of lottery operations conducted on a wide scale involving millions of individuals and affecting millions of lives. Their media of opposition are the above stated defects in the said contract which they assail to be fatally defective. They come to this Court, as taxpayers and civic spirted citizens, asserting a right of standing on a transcendental issue which they assert to be of paramount public interest. Moral or legal questions aside, I believe that there are unfortunately certain standards 1 that have to be followed in the exercise of this Court's awesome power of review before this Court could even begin to assay the validity of the contract between the PCSO and the PGMC. This, in spite of the apparent expansion of judicial power granted by Section 1 of Article VIII of the 1987 Constitution. It is
fundamental that such standards be complied with before this Court could even begin to explore the substantive issues raised by any controversy brought before it, for no issue brought before this court could possibly be so fundamental and paramount as to warrant a relaxation of the requisite rules for judicial review developed by settled jurisprudence inorder to avoid entangling this court in controversies which properly belong to the legislative or executive branches of our government. The potential harm to our system of government, premised on the concept of separation of powers, by the Court eager to exercise its powers and prerogatives at every turn, cannot be gainsaid. The Constitution does not mandate this Court to wield the power of judicial review with excessive vigor and alacrity in every area or at every turn, except in appropriate cases and controversies which meet established requirements for constitutional adjudication. Article VIII Sec. 1 of the Constitution notwithstanding, there are questions which I believe are still beyond the pale of judicial power. Moreover, it is my considered opinion that the instant petition does not meet the requirements set by this court for a valid exercise of judicial review. Our Constitution expressly defines judicial power as including "the duty to settle actual cases and controversiesinvolving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to a lack or excess of jurisdiction on the part of any branch or instrumentality of the government." 2 This constitutional requirement for an actual case and controversy limits this Court's power of review to precisely those suits between adversary litigants with real interests at stake 2 thus preventing it from making all sorts of hypothetical pronouncements on abstract, contingent and amorphous issues. The Court will therefore not pass upon the validity of an act of government or a statute passed by a legislative body without a requisite showing of injury. 3 A personal stake is essential, which absence renders our pronouncements gratuitous and certainly violative of the constitutional requirement for actual cases and controversies. The requirement for standing based on personal injury may of course be bypassed, as the petitioners in this case attempt to do, by considering the case as a "taxpayer suit" which would thereby clothe them with the personality they would lack under ordinary circumstances. However, the act assailed by the petitioners on the whole involves the generation rather than disbursement of public funds. In a line of cases starting from Pascual v. Secretary of Public Works 4 "taxpayer suits" have been understood to refer only to those cases where the act or statute assailed involves the illegal or unconstitutional disbursement of public funds derived from taxation. The main premise behind the "taxpayer suit" is that the pecuniary interest of the taxpayer is involved whenever there is an illegal or wasteful use of public funds which grants them the right to question the appropriation or disbursement on the basis of their contribution to government funds. 5 Since it has not been alleged that an illegal appropriation or disbursement of a fund derived from taxation would be made in the instant case, I fail to see how the petitioners in this case would be able to satisfy the locus standi requirement on the basis of a "taxpayer's suit". This alone should inhibit this Court from proceeding with the case at bench. The interest alleged and the potential injury asserted are far too general and hypothetical for us to rush into a judicial determination of what to me appears to be judgment better left to executive branch of our government. This brings me to one more important point: The idea that a norm of constitutional adjudication could be lightly brushed aside on the mere supposition that an issue before the Court is of paramount public
concern does great harm to a democratic system which espouses a delicate balance between three separate but co-equal branches of government. It is equally of paramount public concern, certainly paramount to the survival of our democracy, that acts of the other branches of government are accorded due respect by this Court. Such acts, done within their sphere of competence, have been and should always be accorded with a presumption of regularity. When such acts are assailed as illegal or unconstitutional, the burden falls upon those who assail these acts to prove that they satisfy the essential norms of constitutional adjudication, because when we finally proceed to declare an act of the executive or legislative branch of our government unconstitutional or illegal, what we actually accomplish is the thwarting of the will of the elected representatives of the people in the executive or legislative branches government.6 Notwithstanding Article VIII, Section 1 of the Constitution, since the exercise of the power of judicial review by this Court is inherently antidemocratic, this Court should exercise a becoming modesty in acting as a revisor of an act of the executive or legislative branch. The tendency of a frequent and easy resort to the function of judicial review, particularly in areas of economic policy has become lamentably too common as to dwarf the political capacity of the people expressed through their representatives in the policy making branches of government and to deaden their sense of moral responsibility. 7 This court has been accused, of late, of an officious tendency to delve into areas better left to the political branches of government. 8 This tendency, if exercised by a court running riot over the other coequal branches of government, poses a greater danger to our democratic system than the perceived danger real or imagined of an executive branch espousing economic or social policies of doubtful moral worth. Moreover economic policy decisions in the current milieu- including the act challenged in the instant case-involve complex factors requiring flexibility and a wide range of discretion on the part of our economic managers which this Court should respect because our power of review, under the constitution, is a power to check, not to supplant those acts or decisions of the elected representatives of the people. Finally, the instant petition was brought to this Court on the assumption that the issue at bench raises primarily constitutional issues. As it has ultimately turned out, the core foundation of the petitioners' objections to the LOTTO operations was based on the validity of the contract between the PCSO and the PGMC in the light of Section 1 of R.A. 1169 as amended by B.P. Blg. 427. It might have been much more appropriate for the issue to have taken its normal course in the courts below. I vote to deny the petition.
# Separate Opinions
CRUZ, J., concurring: I am happy to join Mr. Justice Hilario G. Davide, Jr. in his excellent ponencia. I will add the following personal observations only for emphasis as it is not necessary to supplement his thorough exposition.
The respondents take great pains to cite specific provisions of the contract to show that it is PCSO that is actually operating the on-line lottery, but they have not succeeded in disproving the obvious, to wit, that the document was intentionally so crafted to make it appear that the operation is not a joint undertaking of PCSO and PGMC but a mere lease of services. It is a clever instrument, to be sure, but we are, gratifyingly, not deluded. Lawyers have a special talent to disguise the real intention of the parties in a contract to make it come ostensibly within the provisions of a law although the real if furtive purpose is to violate it. That talent has been exercised in this case, but not convincingly enough. It should be quite clear, from the adroit way the contract has been drafted, that the primary objective was to avoid the conclusion that PCSO will be operating a lottery "in association, collaboration or joint venture with any person, association, company or entity," which is prohibited by Section 1 of Rep. Act No. 1169 as amended by B.P. Blg. 42. Citing the self-serving provisions of the contract, the respondents would have us believe that the contract is perfectly lawful because all it does is provide for the lease to PCSO of the technical know-how and equipment of PGMC, with PCSO acting as "the sole and individual operator" of the lottery. I am glad we are not succumbing to this sophistry. Despite the artfulness of the contract (authorship of which was pointedly denied by both counsel for the government and the private respondent during the oral argument on this case), a careful study will reveal telling stipulations that it is PGMC and not PCSO that will actually be operating the lottery. Thus, it is provided inter aliathat PGMC shall furnish all capital equipment and other facilities needed for the operation; bear all expenses relating to the operation, including those for the salaries and wages of the administrative and technical personnel; undertake a positive advertising and promotion campaign for public support of the lottery; establish a radio communications network throughout the country as part of the operation; and assume all risks if the revenues from ticket sales are insufficient to pay the entire prize money. Most significantly, to show that it is only after eight years from the effectivity of the contract that PCSO will actually operate the lottery, Par. 6.7 of the agreement provides that PGMC shall: 6.7. Upon effectivity of this Contract, commence the training of PCSO and other local personnel and the transfer of technology and expertise, such that at the end of the term of this Contract, PCSO will be able to effectively take-over the Facilities and efficiently operate the On-Line Lottery System. (Emphasis supplied). In the meantime, that is to say during the entire 8-year term of the contract, it will be PGMC that will be operating the lottery. Only "at the end of the term of this Contract" will PCSO "be able to effectively take-over the Facilities and efficiently operate the On-Line Lottery System." Even on the assumption that it is PCSO that will be operating the lottery at the very start, the authority granted to PGMC by the agreement will readily show that PCSO will not be acting alone, as the respondents pretend. In fact, it cannot. PGMC is an indispensable co-worker because it has the equipment and the technology and the management skills that PCSO does not have at this time for the operation of the lottery, PCSO cannot deny that it needs the assistance of PGMC for this purpose, which was its reason for entering into the contract in the first place.
And when PCSO does avail itself of such assistance, how will it be operating the lottery? Undoubtedly, it will be doing so "in collaboration, association or joint venture" with PGMC, which, let it be added, will not be serving as a mere "hired help" of PCSO subject to its control. PGMC will be functioning independently in the discharge of its own assigned role as stipulated in detail under the contract. PGMC is plainly a partner of PCSO in violation of law, no matter how PGMC's assistance is called or the contract is denominated. Even if it be conceded that the assistance partakes of a lease of services, the undeniable fact is that PCSO would still be collaborating or cooperating with PGMC in the operation of the lottery. What is even worse is that PCSO and PGMC may be actually engaged in a joint venture, considering that PGMC does not collect the usual fixed rentals due an ordinary lessor but is entitled to a special "Rental Fee," as the contract calls it, "equal to four point nine percent (4.9%) of gross receipts from ticket sales." The flexibility of this amount is significant. As may be expected, it will induce in PGMC an active interest and participation in the success of PCSO that is not expected of an ordinary detached lessor who gets to be paid his rentals not a rental fee whether the lessee's business prospers or not. PGMC's share in the operation depends on its own performance and the effectiveness of its collaboration with PCSO. Although the contract pretends otherwise, PGMC is a co-investor with PCSO in what is practically, if not in a strictly legal sense, a joint venture. Concerning the doctrine of locus standi, I cannot agree that out of the sixty million Filipinos affected by the proposed lottery, not a single solitary citizen can question the agreement. Locus standi is not such an absolute rule that it cannot admit of exceptions under certain conditions or circumstances like those attending this transaction. As I remarked in my dissent in Guazon v. De Villa, 181 SCRA 623, "It is not only the owner of the burning house who has the right to call the firemen. Every one has the right and responsibility to prevent the fire from spreading even if he lives in the other block." What is especially galling is that the transaction in question would foist upon our people an essentially immoral activity through the instrumentality of a foreign corporation, which naturally does not have the same concern for our interests as we ourselves have. I am distressed that foreigners should be allowed to exploit the weakness of some of us for instant gain without work, and with the active collaboration and encouragement of our own government at that. Feliciano, J., concurring I agree with the conclusions reached by my distinguished brother in the Court Davide, Jr., J., both in respect of the question of locus standi and in respect of the merits of this case, that is, the issues of legality and constitutionality of the Contract of Lease entered into between the Philippine Charity Sweepstakes Office (PCSO) and the Philippine Gaming Management Corporation (PGMC). In this separate opinion, I propose to address only the question of locus standi. It is with some hesitation that I do so, considering the extensive separate opinions on this question written by my learned brothers Melo, Puno and Vitug, JJ. I agree with the great deal of what my brothers Melo, Puno and Vitug say about locus standi in their separate opinions and there is no need to go over the ground that I share
with them. Because, however, I reach a different conclusion in respect of the presence or absence of locus standi on the part of the petitioners in the case before the Court, there is an internal need (a need internal to myself) to articulate the considerations which led me to that conclusion. There is no dispute that the doctrine of locus standi reflects an important constitutional principle, that is, the principle of separation of powers which, among other things, mandates that each of the great Departments of government is responsible for performance of its constitutionally allotted tasks. Insofar as the Judicial Department is concerned, the exercise of judicial power and carrying out of judicial functions commonly take place within the context of actual cases or controversies. This, in turn, reflects the basic notion of judicial power as the power to resolve actual disputes and of the traditional business of courts as the hearing and deciding of specific controversies brought before them. In our own jurisdiction, and at least since the turn of the present century, judicial power has always included the power of judicial review, understood as the authority of courts (more specifically the Supreme Court) to assay contested legislative and executive acts in terms of their constitutionality or legality. Thus, the general proposition has been that a petitioner who assails the legal or constitutional quality of an executive or legislative act must be able to show that he has locus standi. Otherwise, the petition becomes vulnerable to prompt dismissal by the court. There is, upon the other hand, little substantive dispute that the possession of locus standi 1 is not, in each and every case, a rigid and absolute requirement for access to the courts. Certainly that is the case where great issues of public law are at stake, issues which cannot be approached in the same way that a court approaches a suit for the collection of a sum of money or a complaint for the recovery of possession of a particular piece of land. The broad question is when, or in what types of cases, the court should insist on a clear showing of locus standi understood as a direct and personal interest in the subject matter of the case at bar, and when the court may or should relax that apparently stringent requirement and proceed to deal with the legal or constitutional issues at stake in a particular case. I submit, with respect, that it is not enough for the Court simply to invoke "public interest" or even "paramount considerations of national interest," and to say that the specific requirements of such public interest can only be ascertained on a "case to case" basis. For one thing, such an approach is not intellectually satisfying. For another, such an answer appears to come too close to saying that locus standi exists whenever at least a majority of the Members of this Court participating in a case feel that an appropriate case for judicial intervention has arisen. This is not, however, to say that there is somewhere an over-arching juridical principle or theory, waiting to be discovered, that permits a ready answer to the question of when, or in what types of cases, the need to showlocus standi may be relaxed in greater or lesser degree. To my knowledge, no satisfactory principle or theory has been discovered and none has been crafted, whether in our jurisdiction or in the United States. 2 I have neither the competence nor the opportunity to try to craft such principle or formula. It might, however, be useful to attempt to indicate the considerations of principle which, in the present case, appear to me to require an affirmative answer to the question of whether or not petitioners are properly regarded as imbued with the standing necessary to bring and maintain the present petition.
Firstly, the character of the funds or other assets involved in the case is of major importance. In the case presently before the Court, the funds involved are clearly public in nature. The funds to be generated by the proposed lottery are to be raised from the population at large. Should the proposed operation be as successful as its proponents project, those funds will come from well-nigh every town and barrio of Luzon. The funds here involved are public in another very real sense: they will belong to the PCSO, a government owned or controlled corporation and an instrumentality of the government and are destined for utilization in social development projects which, at least in principle, are designed to benefit the general public. My learned brothers Melo, Puno and Vitug, JJ. concede that taxpayers' suits have been recognized as an exception to the traditional requirement of recognized as an exception to the traditional requirement of locus standi. They insist, however, that because the funds here involved will not have been generated by the exercise of the taxing power of the Government, the present petition cannot be regarded as a taxpayer's suit and therefore, must be dismissed by the Court. It is my respectful submission that that constitutes much too narrow a conception of the taxpayer's suit and of the public policy that it embodies. It is also to overlook the fact that tax monies, strictly so called, constitute only one (1) of the major categories of funds today raised and used for public purposes. It is widely known that the principal sources of funding for government operations today include, not just taxes and customs duties, but also revenues derived from activities of the Philippine Amusement Gaming Corporation (PAGCOR), as well as the proceeds of privatization of government owned or controlled corporations and other government owned assets. The interest of a private citizen in seeing to it that public funds, from whatever source they may have been derived, go only to the uses directed and permitted by law is as real and personal and substantial as the interest of a private taxpayer in seeing to it that tax monies are not intercepted on their way to the public treasury or otherwise diverted from uses prescribed or allowed by law. It is also pertinent to note that the more successful the government is in raising revenues by non-traditional methods such as PAGCOR operations and privatization measures, the lesser will be the pressure upon the traditional sources of public revenues, i.e., the pocket books of individual taxpayers and importers. A second factor of high relevance is the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government. A showing that a constitutional or legal provision is patently being disregarded by the agency or instrumentality whose act is being assailed, can scarcely be disregarded by court. The concept of locus standi which is part and parcel of the broader notion of ripeness of the case "does not operate independently and is not alone decisive. . . . [I]t is in substantial part a function of a judge's estimate of the merits of the constitutional [or legal] issue." 3 The notion of locus standi and the judge's conclusions about the merits of the case, in other words, interact with each other. Where the Court perceives a serious issue of violation of some constitutional or statutory limitation, it will be much less difficult for the Court to find locus standi in the petitioner and to confront the legal or constitutional issue. In the present case, the majority of the Court considers that a very substantial showing has been made that the Contract of Lease between the PCSO and the PGMC flies in the face of legal limitations. A third consideration of importance in the present case is the lack of any other party with a more direct and specific interest in raising the questions here being raised. Though a public bidding was held, no
losing or dissatisfied bidder has come before the Court. The Office of the Ombudsman has not, to the knowledge of the Court, raised questions about the legality or constitutionality of the Contract of Lease here involved. The National Government itself, through the Office of the Solicitor General, is defending the PCSO Contract (though it had not participated in the drafting thereof). In a situation like that here obtaining, the submission may be made that the institution, so well known in corporation law and practice, of the corporate stockholders' derivative suit furnishes an appropriate analogy and that on the basis of such an analogy, a taxpayer's derivative suit should be recognized as available. The wide range of impact of the Contract of Lease here assailed and of its implementation, constitutes still another consideration of significance. In the case at bar, the agreement if implemented will be practically nationwide in its scope and reach (the PCSO-PGMC Contract is limited in its application to the Island of Luzon; but if the PCSO Contracts with the other two [2] private "gaming management" corporations in respect of the Visayas and Mindanao are substantially similar to PCSO's Contract with PGMC, then the Contract before us may be said to be national indeed in its implications and consequences). Necessarily, the amounts of money expected to be raised by the proposed activities of the PCSO and PGMC will be very substantial, probably in the hundreds of millions of pesos. It is not easy to conceive of a contract with greater and more far-reaching consequences, literally speaking, for the country than the Contract of Lease here involved. Thus, the subject matter of the petition is not something that the Court may casually pass over as unimportant and as not warranting the expenditure of significant judicial resources. In the examination of the various features of this case, the above considerations have appeared to me to be important and as pressing for acceptance and exercise of jurisdiction on the part of this Court. It is with these considerations in mind that I vote to grant due course to the Petition and to hold that the Contract of Lease between the PCSO and PGMC in its present form and content, and given the present state of the law, is fatally defective. PADILLA, J., concurring: My views against gambling are a matter of judicial record. In Basco v. PAGCOR, (G.R. No. 91649, 14 May 1991, 197 SCRA 52) I expressed these views in a separate opinion where I was joined by that outstanding lady jurist, Mme. Justice A. Melencio-Herrera whose incisive approach to legal problems is today missed in this Court. I reproduce here those views because they are highly persuasive to the conclusions I reach in the present controversy: I concur in the result of the learned decision penned by my brother Mr. Justice Paras. This means that I agree with the decision insofar as it holds that the prohibition, control, and regulation of the entire activity known as gambling properly pertain to "state policy." It is, therefore, the political departments of government, namely, the legislative and the executive that should decide on what government should do in the entire area of gambling, and assume full responsibility to the people for such policy. The courts, as the decision states, cannot inquire into the wisdom, morality or expediency of policies adopted by the political departments of government in areas which fall within their authority, except
only when such policies pose a clear and present danger to the life, liberty or property of the individual. This case does not involve such a factual situation. However, I hasten to make of record that I do not subscribe to gambling in any form. It demeans the human personality, destroys self-confidence and eviscerates one's self-respect, which in the long run will corrode whatever is left of the Filipino moral character. Gambling has wrecked and will continue to wreck families and homes; it is an antithesis to individual reliance and reliability as well as personal industry which are the touchstones of real economic progress and national development. Gambling is reprehensible whether maintained by government or privatized. The revenues realized by the government out of "legalized" gambling will, in the long run, be more than offset and negated by the irreparable damage to the people's moral values. Also, the moral standing of the government in its repeated avowals against "illegal gambling" is fatally flawed and becomes untenable when it itself engages in the very activity it seeks to eradicate. One can go through the Court's decision today and mentally replace the activity referred to therein as gambling, which is legal only because it is authorized by law and run by the government, with the activity known as prostitution. Would prostitution be any less reprehensible were it to be authorized by law, franchised, and "regulated" by the government, in return for the substantial revenues it would yield the government to carry out its laudable projects, such as infrastructure and social amelioration? The question, I believe, answers itself. I submit that the sooner the legislative department outlaws all forms of gambling, as a fundamental state policy, and the sooner the executive implements such policy, the better it will be for the nation. We presently have the sweepstakes lotteries; we already have the PAGCOR's gambling casinos; the Filipino people will soon, if plans do not miscarry, be initiated into an even more sophisticated and encompassing nationwide gambling network known as the "on-line hi-tech lotto system." To be sure, it is not wealth producing; it is not export oriented. It will draw from existing wealth in the hands of Filipinos and transfer it into the coffers of the PCSO and its foreign partners at a price of further debasement of the moral standards of the Filipino people, the bulk of whom are barely subsisting below the poverty line. 1. It is said that petitioners 1 have no locus standi to bring this suit even as they challenge the legality and constitutionality of a contract of lease between the PCSO, a government-owned corporation and the PGMC, a private corporation with substantial (if not controlling) foreign composition and content. Such contract of lease contains the terms and conditions under which an "on-line hi-tech lotto system" will operate in the country. As the ponente of the extended, unsigned en banc resolution in Valmonte v. PCSO, (G.R. No. 78716 and G.R. No. 79084, 22 September 1987), I would be the last to downgrade the rule, therein reiterated, that in order to maintain a suit challenging the constitutionality and/or legality of a statute, order or regulation or assailing a particular governmental action as done with grave abuse of discretion or with lack of jurisdiction, the petitioner must show that he has a clear personal or legal right that would be
violated with the enforcement of the challenged statute, order or regulation or the implementation of the questioned governmental action. But, in my considered view, this rule maybe (and should be) relaxed when the issue involved or raised in the petition is of such paramount national interest and importance as to dwarf the above procedural rule into a barren technicality. As a unanimous Court en banc aptly put it in De Guia vs. COMELEC, G.R. No. 104712, 6 May 1992, 208 SCRA 420. Before addressing the crux of the controversy, the Court observes that petitioner does not allege that he is running for re-election, much less, that he is prejudiced by the election, by district, in Paraaque. As such, he does not appear to have locus standi, a standing in law, a personal or substantial interest. (Sanidad vs. COMELEC, G.R. No. L-4640, October 12, 1976. 73 SCRA 333; Municipality of Malabang vs. Benito, G.R. No. L-28113, March 28, 1969, 27 SCRA 533) He does not also allege any legal right that has been violated by respondent. If for this alone, petitioner does not appear to have any cause of action. However, considering the importance of the issue involved, concerning as it does the political exercise of qualified voters affected by the apportionment, and petitioner alleging abuse of discretion and violation of the Constitution by respondent, We resolved to brush aside the question of procedural infirmity, even as We perceive the petition to be one of declaratory relief. We so held similarly through Mr. Justice Edgardo L. Paras in Osmea vs. Commission on Elections. I view the present case as falling within the De Guia case doctrine. For, when the contract of lease in question seeks to establish and operate a nationwide gambling network with substantial if not controlling foreign participation, then the issue is of paramount national interest and importance as to justify and warrant a relaxation of the above-mentioned procedural rule on locus standi. 2. The charter of the PCSO Republic Act No. 1169 as amended by BP No. 42 insofar as relevant, reads: Sec. 1. The Philippine Charity Sweepstakes Office. The Philippine Charity Sweepstakes Office, hereinafter designated the Office, shall be the principal government agency for raising and providing for funds for health programs, medical assistance and services and charities of national character, and as such shall have the general powers conferred in section thirteen of Act Numbered One Thousand Four Hundred Fifty-Nine, as amended, and shall have the authority: A. To hold and conduct charity sweepstakes races, lotteries and other similar activities, in such frequency and manner, as shall be determined, and subject to such rules and regulations as shall be promulgated by the Board of Directors. B. Subject to the approval of the Minister of Human Settlements, to engage in health and welfarerelated investments, programs, projects and activities which may be profit-oriented, by itself or in collaboration, association or joint venture with any person, association, company or entity, whether domestic or foreign, except for the activities mentioned in the preceding paragraph (A), for the purpose of providing for permanent and continuing sources of funds for health programs, including the expansion of existing ones, medical assistance and services, and/or charitable grants: Provided, That
such investments will not compete with the private sector in areas where investments are adequate as may be determined by the National Economic and Development Authority. It is at once clear from the foregoing legal provisions that, while the PCSO charter allows the PCSO to itself engage in lotteries, it does not however permit the PCSO to undertake or engage in lotteries in "collaboration, association or joint venture" with others. The palpable reason for this prohibition is, that PCSO should not and cannot be made a vehicle for an otherwise prohibited foreign or domestic entity to engage in lotteries (gambling activities) in the Philippines. The core question then is whether the lease contract between PCSO and PGMC is a device whereby PCSO will engage in lottery in collaboration, association or joint venture with another, i.e. PGMC. I need not go here into the details and different specific features of the contract to show that it is a joint venture between PCSO and PGMC. That has been taken care of in the opinion of Mr. Justice Davide to which I fully subscribe. On a slightly different plane and, perhaps simplified, I consider the agreement or arrangement between the PCSO and PGMC a joint venture because each party to the contract contributes its share in the enterprise or project. PGMC contributes its facilities, equipment and know-how (expertise). PCSO contributes (aside from its charter) the market, directly or through dealers and this to me is most important in the totality or mass of the Filipinogambling elements who will invest in lotto tickets. PGMC will get its 4.9% of gross receipts (with assumption of certain risks in the course of lotto operations); the residue of the whole exercise will go to PCSO. To any person with a minimum of business know-how, this is a joint venture between PCSO and PGMC, plain and simple. But assuming ex gratia argumenti that such arrangement between PCSO and PGMC is not a joint venture between the two of them to install and operate an "on-line hi-tech lotto system" in the country, it can hardly be denied that it is, at the very least, an association or collaboration between PCSO and PGMC. For one cannot do without the other in the installation, operation and, most importantly, marketing of the entire enterprise or project in this country. Indeed, the contract of lease in question is a clear violation of Republic Act No. 1169 as amended by BP No. 42 (the PCSO charter). Having arrived at the conclusion that the contract of lease in question between the PCSO and PGMC is illegal and, therefore, invalid, I find it unnecessary to dwell on the other issues raised in the pleadings and arguments of the parties. I, therefore, vote to give DUE COURSE to the petition and to declare the contract of lease in question between PCSO and PGMC, for the reasons aforestated, of no force and effect. MELO, J., dissenting: I submit that the petition before the Court deserves no less than outright dismissal for the reason that petitioners, as concerned citizens and as taxpayers and as members of Congress, do not possess the necessary legal standing to assail the validity of the contract of lease entered into by the Philippine
Charity Sweepstakes Office and the Philippine Gaming Management Corporation relative to the establishment and operation of an "On-line Hi-Tech Lottery System" in the country. As announced in Lamb vs. Phipps (22 Phil. [1912], 559), "[J]udicial power in its nature, is the power to hear and decide causes pending between parties who have the right to sue and be sued in the courts of law and equity." Necessarily, this implies that a party must show a personal stake in the outcome of the controversy or an injury to himself that can be addressed by a favorable decision so as to warrant his invocation of the court's jurisdiction and to justify the court's remedial powers in his behalf (Warth vs. Seldin, 422 U.S. 490; Guzman vs. Marrero, 180 U.S. 81; McMicken vs. United States, 97 U.S. 204). Here, we have yet to see any of petitioners acquiring a personal stake in the outcome of the controversy or being placed in a situation whereby injury may be sustained if the contract of lease in question is implemented. It may be that the contract has somehow evoked public interest which petitioners claim to represent. But the alleged public interest which they pretend to represent is not only broad and encompassing but also strikingly and veritably indeterminate that one cannot truly say whether a handful of the public, like herein petitioners, may lay a valid claim of representation in behalf of the millions of citizens spread all over the land who may have just as many varied reactions relative to the contract in question. Any effort to infuse personality on petitioners by considering the present case as a "taxpayer's suit" could not cure the lack of locus standi on the part of petitioners. As understood in this jurisdiction, a "taxpayer's suit" refers to a case where the act complained of directly involves the illegal disbursement of public funds derived from taxation (Pascual vs. Secretary of Public Works, 110 Phil. [1960] 331; Maceda vs. Macaraig, 197 SCRA [1991]; Lozada vs. COMELEC, 120 SCRA [1983] 337; Dumlao vs. COMELEC, 95 SCRA [1980] 392; Gonzales vs. Marcos, 65 SCRA [1975] 624). It cannot be overstressed that no public fund raised by taxation is involved in this case. In fact, it is even doubtful if the rentals which the PCSO will pay to the lessor for its operation of the lottery system may be regarded as "public fund". The PCSO is not a revenue- collecting arm of the government. Income or money realized by it from its operations will not and need not be turned over to the National Treasury. Rather, this will constitute corporate funds which will remain with the corporation to finance its various activities as authorized in its charter. And if ever some semblance of "public character" may be said to attach to its earnings, it is simply because PCSO is a government-owned or controlled entity and not a purely private enterprise. It must be conceded though that a "taxpayer's suit" had been allowed in a number of instances in this jurisdiction. For sure, after the trial was blazed by Pascual vs. Secretary of Public Works, supra, several more followed. It is to be noted, however, that in those occasions where this Court allowed such a suit, the case invariably involved either the constitutionality of a statute or the legality of the disbursement of public funds through the enforcement of what was perceived to be an invalid or unconstitutional statute or legislation (Pascual, supra; Philippine Constitution Association, Inc. vs. Jimenez, 15 SCRA [1965] 479; Philippine Constitution Association, Inc. vs. Mathay, 18 SCRA [1966] 300; Tolentino vs. COMELEC, 41 SCRA [1971] 702; Pelaez vs. Auditor General, 15 SCRA [1965] 569; Iloilo Palay and Corn Planters Association vs. Feliciano, 13 SCRA [1965] 377).
The case before us is not a challenge to the validity of a statute or an attempt to restrain expenditure of public funds pursuant to an alleged invalid congressional enactment. What petitioners ask us to do is to nullify a simple contract of lease entered into by a government-owned corporation with a private entity. That contract, as earlier pointed out, does not involve the disbursement of public funds but of strictly corporate money. If every taxpayer, claiming to have interest in the contract, no matter how remote, could come to this Court and seek nullification of said contract, the day may come when the activities of government corporate entities will ground to a standstill on account of nuisance suits filed against them by persons whose supposed interest in the contract is as remote and as obscure as the interest of any man in the street. The dangers attendant thereto are not hard to discern and this Court must not allow them to come to pass. One final observation must be emphasized. When the petition at bench was filed, the Court decided to hear the case on oral argument on the initial perception that a constitutional issue could be involved. However, it now appears that no question of constitutional dimension is at stake as indeed the majority barely touches on such an issue, concentrating as it does on its interpretation of the contract between the Philippine Charity Sweepstakes Office and the Philippine Gaming Management Corporation. I, therefore, vote to dismiss the petition. PUNO, J., dissenting: At the outset, let me state that my religious faith and family upbringing compel me to regard gambling, regardless of its garb, with hostile eyes. Such antagonism tempts me to view the case at bench as a struggle between good and evil, a fight between the forces of light against the forces of darkness. I will not, however, yield to that temptation for we are not judges of the Old Testament type who were not only arbiters of law but were also high priests of morality. I will therefore strictly confine the peregrinations of my mind to the legal issues for resolution: (1) whether or not the petitioners have the Locus standi to file the petition at bench; and (2) assuming their locus standi, whether or not the Contract of Lease between PCSO and PGMC is null and void considering: (a) section 1 of R.A. No. 1169, as amended by B.P. Blg. 42 (Charter of PCSO) which prohibits PCSO from holding and conducting lotteries "in collaboration, association or joint venture with any person, association, company or entity"; (b) Act No. 3836 which requires a congressional franchise before any person or entity can establish and operate a telecommunication system; (c) section 11, Art. XII of the Constitution, which requires that for a corporation to operate a public utility, at least 60% of its capital must be owned by Filipino citizens; and (d) R.A. No. 7042, otherwise known as the "Foreign Investments Act", which includes all forms of gambling in its "negative list." While the legal issues abound, I deferentially submit that the threshold issue is the locus standi, or standing to sue, of petitioners. The petition describes petitioner Kilosbayan, Inc., as a non-stock corporation composed of "civic spirited citizens, pastors, priests, nuns, and lay leaders who are committed to the cause of truth, justice, and national renewal." 1 Petitioners Jovito R. Salonga, Cirilo A. Rigos, Ernie Camba, Emilio C. Capulong, Jr., Jose Abcede, Christine Tan, Felipe L. Gozon, Rafael G. Fernando, Raoul V. Victorino, Jose Cunanan, and Quintin S. Doromal joined the petition in their capacity
as trustees of Kilosbayan, Inc., and as taxpayers and concerned citizens. 2 Petitioners Freddie Webb and Wigberto Taada joined the petition as senators, taxpayers and concerned citizens. 3 Petitioner Joker P. Arroyo joined the petition as a member of the House of Representative, a taxpayer and a concerned citizen. 4 With due respect to the majority opinion, I wish to focus on the interstices of locus standi, a concept described by Prof. Paul Freund as "among the most amorphous in the entire domain of public law." The requirement of standing to sue inheres from the definition of judicial power. It is not merely a technical rule of procedure which we are at liberty to disregard. Section 1, Article VIII of the Constitution provides: xxx xxx xxx Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Italics supplied) The phrase "actual controversies involving rights which are legally demandable and enforceable" has acquired a cultivated meaning given by courts. It spells out the requirements that must be satisfied before one can come to court to litigate a constitutional issue. Our distinguished colleague, Mr. Justice Isagani A. Cruz, gives a shorthand summary of these requirements when he states that no constitutional question will be heard and decided by courts unless there is a showing of the following: . . . (1) there must be an actual case or controversy; (2) the question of constitutionality must be raised by the proper party; (3) the constitutional question must be raised at the earliest possible opportunity; and (4) the decision of the constitutional question must be necessary to the determination of the case itself. 5 The complexion of the rule on locus standi has been undergoing a change. Mr. Justice Cruz has observed the continuing relaxation of the rule on standing, 6 thus: xxx xxx xxx A proper party is one who has sustained or is in immediate danger of sustaining an injury as a result of the act complained of. Until and unless such actual or potential injury is established, the complainant cannot have the legal personality to raise the constitutional question. In Tileson v. Ullmann, a physician questioned the constitutionality of a law prohibiting the use of contraceptives, upon the ground that it might prove dangerous to the life or health of some of his patients whose physical condition would not enable them to bear the rigors of childbirth. The court dismissed the challenge, holding that the patients of the physician and not the physician himself were the proper parties. In Cuyegkeng v. Cruz, the petitioner challenged in a quo warranto proceeding the title of the respondent who, he claimed, had been appointed to the board of medical examiners in violation of the provisions of the Medical Act of 1959. The Supreme Court dismissed the petition, holding that Cuyegkeng had not
made a claim to the position held by Cruz and therefore could not be regarded as a proper party who had sustained an injury as a result of the questioned act. In People v. Vera, it was held that the Government of the Philippines was a proper party to challenge the constitutionality of the Probation Act because, more than any other, it was the government itself that should be concerned over the validity of its own laws. In Ex Parte Levitt, the petitioner, an American taxpayer and member of the bar, filed a motion for leave to question the qualifications of Justice Black who, he averred, had been appointed to the U.S. Supreme Court in violation of the Constitution of the United States. The Court dismissed the petition, holding that Levitt was not a proper party since he was not claiming the position held by Justice Black. The rule before was that an ordinary taxpayer did not have the proper party personality to question the legality of an appropriation law since his interest in the sum appropriated was not substantial enough. Thus, in Custodio v. Senate President, a challenge by an ordinary taxpayer to the validity of a law granting back pay to government officials, including members of Congress, during the period corresponding to the Japanese Occupation was dismissed as having been commenced by one who was not a proper party. Since the first Emergency Powers Cases, however, the rule has been changed and it is now permissible for an ordinary taxpayer, or a group of taxpayers, to raise the question of the validity of an appropriation law. As the Supreme Court then put it. "The transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure." In Tolentino v. Commission on Elections, it was held that a senator had the proper party personality to seek the prohibition of a plebiscite for the ratification of a proposed constitutional amendment. InPHILCONSA v. Jimenez, an organization of taxpayers and citizens was held to be a proper party to question the constitutionality of a law providing for special retirement benefits for members of the legislature. In Sanidad v. Commission on Elections, the Supreme Court upheld the petitioners as proper parties, thus As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo C. Sanidad and Pablito V. Sanidad) possess locus standi to challenge the constitutional premise of Presidential Decree Nos. 991, 1031, and 1033. It is now an ancient rule that the valid source of a statute Presidential Decrees are of such nature may be contested by one who will sustain a direct injury as a result of its enforcement. At the instance of taxpayers, laws providing for the disbursement of public funds may be enjoined, upon the theory that the expenditure of public funds by an officer of the State for the purpose of executing an unconstitutional act constitutes a misapplication of such funds. The breadth of Presidential Decree No. 991 carries an appropriation of Five Million Pesos for the effective implementation of its purposes. Presidential Decree No. 1031 appropriates the sum of Eight Million Pesos to carry out its provisions. The interest of the aforenamed petitioners as taxpayers in the lawful expenditure of these amounts of public
money sufficiently clothes them with that personality to litigate the validity of the Decrees appropriating said funds. Moreover, as regard taxpayer's suits, this Court enjoys that open discretion to entertain the same or not. For the present case, We deem it sound to exercise that discretion affirmatively so that the authority upon which the disputed Decrees are predicated may be inquired into. In Lozada v. Commission on Elections, however, the petitioners were held without legal standing to demand the filling of vacancies in the legislature because they had only "a generalized interest' shared with the rest of the citizenry." Last July 30, 1993, we further relaxed the rule on standing in Oposa, et al. v. Hon. Fulgencio S. Factoran, Jr., 7where we recognized the locus standi of minors representing themselves as well as generations unborn to protect their constitutional right to a balanced and healthful ecology. I am perfectly at peace with the drift of our decisions liberalizing the rule on locus standi. The once stubborn disinclination to decide constitutional issues due to lack of locus standi is incompatible with the expansion of judicial power mandated in section 1 of Article VIII of the Constitution, i.e., "to determine whether or not there has been a grave abuse of discretion, amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government." As we held thru the ground breaking ponencia of Mr. Justice Cruz in Daza v. Singson, 8 this provision no longer precludes the Court from resolving political questions in proper cases. But even perusing this provision as a constitutional warrant for the court to enter the once forbidden political thicket, it is clear that the requirement of locus standi has not been jettisoned by the Constitution for it still commands courts in no uncertain terms to settle only "actual controversies involving rights which are legally demandable and enforceable." Stated otherwise, courts are neither free to decide all kinds of cases dumped into their laps nor are they free to open their doors to all parties or entities claiming a grievance. The rationale for this constitutional requirement of locus standi is by no means trifle. It is intended "to assure a vigorous adversary presentation of the case, and, perhaps more importantly to warrant the judiciary's overruling the determination of a coordinate, democratically elected organ of government." 9 It thus goes to the very essence of representative democracies. As Mr. Justice Powell carefully explained in U.S. v. Richardson, 10 viz: Relaxation of standing requirements is directly related to the expansion of judicial power. It seems to me inescapable that allowing unrestricted taxpayer or citizen standing would significantly alter the allocation of power at the national level, with a shift away from a democratic form of government. I also believe that repeated and essentially head-on confrontations between the life-tenured branch and the representative branches of government will not, in the long run, be beneficial to either. The public confidence essential to the former and the vitality critical to the latter may well erode if we do not exercise self- restraint in the utilization of our power to negative the actions of the other branches. We should be ever mindful of the contradictions that would arise if a democracy were to permit at large oversight of the elected branches of government by a non-representative, and in large measure insulated, judicial branch. Moreover, the argument that the Court should allow unrestricted taxpayer or citizen standing underestimates the ability of the representative branches of the Federal Government to respond to the citizen pressure that has been responsible in large measure for the current drift toward
expanded standing. Indeed, taxpayer or citizen advocacy, given its potentially broad base, is precisely the type of leverage that in a democracy ought to be employed against the branches that were intended to be responsive to public attitudes about the appropriate operation of government. "We must as judges recall that, as Mr. Justice Holmes wisely observed, the other branches of Government are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts." Unrestrained standing in federal taxpayer or citizen suits would create a remarkably illogical system of judicial supervision of the coordinate branches of the Federal Government. Randolph's proposed Council of Revision, which was repeatedly rejected by the Framers, at least had the virtue of being systematic; every law passed by the legislature automatically would have been previewed by the judiciary before the law could take effect. On the other hand, since the judiciary cannot select the taxpayers or citizens who bring suit or the nature of the suits, the allowance of public actions would produce uneven and sporadic review, the quality of which would be influenced by the resources and skill of the particular plaintiff. And issues would be presented in abstract form, contrary to the Court's recognition that "judicial review is effective largely because it is not available simply at the behest of a partisan faction, but is exercised only to remedy a particular, concrete injury." Sierra Club v. Morton, 405 U.S. 727, 740741, n. 16 (1972). A lesser but not insignificant reason for screening the standing of persons who desire to litigate constitutional issues is economic in character. Given the sparseness of our resources, the capacity of courts to render efficient judicial service to our people is severely limited. For courts to indiscriminately open their doors to all types of suits and suitors is for them to unduly overburden their dockets, and ultimately render themselves ineffective dispensers of justice. To be sure, this is an evil that clearly confronts our judiciary today. Prescinding from these premises, and with great reluctance, I am not prepared to concede the standing to sue of petitioners. On a personal level, they have not shown that elemental injury in fact which will endow them with a standing to sue. It must be stressed that petitioners are in the main, seeking the nullity not of a law but of a Contract of Lease. Not one of the petitioners is a party to the Contract of Lease executed between PCSO and PGMC. None of the petitioners participated in the bidding, and hence they are not losing bidders. They are complete strangers to the contract. They stand neither to gain nor to lose economically by its enforcement. It seems to me unusual that an unaffected third party to a contract could be allowed to question its validity. Petitioner Kilosbayan cannot justify this officious interference on the ground of its commitment to "truth, justice and national renewal." Such commitment to truth, justice and national renewal, however noble it may be, cannot give Kilosbayan a roving commission to check the validity of contracts entered into by the government and its agencies. Kilosbayan is not a private commission on audit. Neither can I perceive how the other petitioners can be personally injured by the Contract of Lease between PCSO and PGMC even if petitioner Salonga assails as unmitigated fraud the statistical probability of winning the lotto as he compared it to the probability of being struck twice by lightning. The reason is obvious: none of the petitioners will be exposed to this alleged fraud for all of them
profess to abjure playing the lotto. It is self-evident that lotto cannot physically or spiritually injure him who does not indulge in it. Petitioners also contend they have locus standi as taxpayers. But the case at bench does not involve any expenditure of public money on the part of PCSO. In fact, paragraph 2 of the Contract of Lease provides that it is PGMC that shall build, furnish, and maintain at its own expense and risk the facilities for the OnLine Lottery System of PCSO and shall bear all maintenance and other costs. Thus, PGMC alleged it has already spent P245M in equipment and fixtures and would be investing close to P1 billion to supply adequately the technology and other requirements of PCSO. 11 If no tax money is being illegally deflected in the Contract of Lease between PCSO and PGMC, petitioners have no standing to impugn its validity as taxpayers. Our ruling in Dumlao v. Comelec, 12 settled this issue well enough, viz: However, the statutory provisions questioned in this case, namely, sec. 7, BP Blg. 51, and sections 4, 1, and 5 BP Blg. 52, do not directly involve the disbursement of public funds. While, concededly, the elections to be held involve the expenditure of public moneys, nowhere in their Petition do said petitioners allege that their tax money is "being extracted and spent in violation of specific constitutional protections against abuses of legislative power" (Flast v. Cohen, 392 U.S. 83 [1960]), or that there is a misapplication of such funds by respondent COMELEC (see Pascual vs. Secretary of Public Works, 110 Phil. 331 [1960]), or that public money is being deflected to any improper purpose. Neither do petitioners seek to restrain respondent from wasting public funds through the enforcement of an invalid or unconstitutional law. (Philippine Constitution Association vs. Mathay, 18 SCRA 300 [1966]), citing Philippine Constitution Association vs. Gimenez, 15 SCRA 479 [1965]). Besides, the institution of a taxpayer's suit, per se, is no assurance of judicial review. As held by this Court in Yan vs. Macapagal (43 SCRA 677 [1972]), speaking through our present Chief Justice, this Court is vested with discretion as to whether or not a taxpayer's suit should be entertained. Next, petitioners plead their standing as "concerned citizens." As citizens, petitioners are pleading that they be allowed to advocate the constitutional rights of other persons who are not before the court and whose protection is allegedly their concern. A citizen qua citizen suit urges a greater relaxation of the rule on locus standi. I feel no aversion to the further relaxation of the rule on standing to accommodate what in other jurisdictions is known as an assertion of jus tertii in constitutional litigation provided the claimant can demonstrate: (1) an injury in fact to himself, and (2) the need to prevent the erosion of a preferred constitutional right of a third person. As stressed before, the first requirement of injury in fact cannot be abandoned for it is an essential element for the exercise of judicial power. Again, as stressed by Mr. Justice Powell, viz: 13 The revolution in standing doctrine that has occurred, particularly in the 12 years since Baker v. Carr, supra, has not meant, however, that standing barriers have disappeared altogether. As the Court noted in Sierra Club, "broadening the categories of injury that may be alleged in support of standing is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury." 405 U.S., at 738 . . . Indeed, despite the diminution of standing requirements in the last decade, the Court has not broken with the traditional requirement that, in the absence of a specific
statutory grant of the right of review, a plaintiff must allege some particularized injury that sets him apart from the man on the street. I recognize that the Court's allegiance to a requirement of particularized injury has on occasion required a reading of the concept that threatens to transform it beyond recognition. E.G., Baker v. Carr, supra; Flast v. Cohen, supra. But despite such occasional digressions, the requirement remains, and I think it does so for the reasons outlined above. In recognition of those considerations, we should refuse to go the last mile towards abolition of standing requirements that is implicit in broadening the "precarious opening" for federal taxpayers created by Flast, see 392 U.S., at 116 (Mr. Justice Fortas, concurring) or in allowing a citizen qua citizen to invoke the power of the federal courts to negative unconstitutional acts of the Federal Government. In sum, I believe we should limit the expansion of federal taxpayer and citizen standing in the absence of specific statutory authorization to an outer boundary drawn by the results in Flast and Baker v. Carr. I think we should face up to the fact that all such suits are an effort "to employ a federal court as a forum in which to air . . . generalized grievances about the conduct of government or the allocation of power in the Federal System." Flast v. Cohen, 392 U.S., at 106. The Court should explicitly reaffirm traditional prudential barriers against such public actions. My reasons for this view are rooted in respect for democratic processes and in the conviction that "[t]he powers of the federal judiciary will be adequate for the great burdens placed upon them only if they are employed prudently, with recognition of the strengths as well as the hazards that go with our kind of representative government." Id., at 131 The second requirement recognizes society's right in the protection of certain preferred rights in the Constitution even when the rightholders are not before the court. The theory is that their dilution has a substantial fall out detriment to the rights of others, hence the latter can vindicate them. In the case at bench, it is difficult to see how petitioners can satisfy these two requirements to maintain a jus tertiiclaim. They claim violation of two constitutional provisions, to wit: Section 1, Article XIII. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good. To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments. and Section 11, Article XII. - No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines at least sixty per centum of whose capital is owned by such citizens, nor shall such franchise, certificate, or authorizations be exclusive in character or for a longer period than fifty years. Neither shall any such franchise or right be granted except under the condition
that it shall be subject to amendment, alteration, or repeal by the Congress when the common good so requires. The State shall encourage equity participation in public utilities by the general public. The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital, and all the executive and managing officers of such corporation or association must be citizen of the Philippines. Section 1, Article XIII of the Constitution cannot be the matrix of petitioners' jus tertii claim for it expresses no more than a policy direction to the legislative in the discharge of its ordained duty to give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities and remove cultural inequities by equitably diffusing wealth and political power for the common good. Whether the act of the legislature in amending the charter of PCSO by giving it the authority to conduct lotto and whether the Contract of Lease entered into between PCSO and PGMC are incongruent to the policy direction of this constitutional provision is a highly debatable proposition and can be endlessly argued. Respondents steadfastly insist that the operation of lotto will increase the revenue base of PCSO and enable government to provide a wider range of social services to the people. They also allege that the operation of high-tech lotto will eradicate illegal jueteng. Petitioners are scandalized by this submission. They dismiss gambling as evil per se and castigate government for attempting to correct a wrong by committing another wrong. In any event, the proper forum for this debate, however cerebrally exciting it may be, is not this court but congress. So we held in PCSO v. Inopiquez, to wit: 14 By bringing their suit in the lower court, the private respondents in G.R. No. 79084 do not question the power of PCSO to conduct the Instant Sweepstakes game. Rather, they assail the wisdom of embarking upon this project because of their fear of the "pernicious repercussions" which may be brought about by the Instant Sweepstakes Game which they have labelled as "the worst form of gambling" which thus "affects the moral values" of the people. The Court, as held in several cases, does not pass upon questions of wisdom, justice, or expediency of legislation and executive acts. It is not the province of the courts to supervise legislation or executive orders as to keep them within the bounds of propriety, moral values and common sense. That is primarily and even exclusively a concern of the political departments of the government; otherwise, there will be a violation of the principle of separation of powers. (Italics supplied) I am not also convinced that petitioners can justify their locus standi to advocate the rights of hypothetical third parties not before the court by invoking the need to keep inviolate section 11, Article XII of the Constitution which imposes a nationality requirement on operators of a public utility. For even assuming arguendo that PGMC is a public utility, still, the records do not at the moment bear out the claim of petitioners that PGMC is a foreign owned and controlled corporation. This factual issue remains unsettled and is still the subject of litigation by the parties in the Securities and Exchange Commission. We are not at liberty to anticipate the verdict on this contested factual issue. But over and above this consideration, I respectfully submit that this constitutional provision does not confer on third parties any right of a preferred status comparable to the Bill of Rights whose dilution will justify petitioners to vindicate them in behalf of its rightholders. The legal right of hypothetical third parties they profess to
advocate is to my mind too impersonal, too unsubstantial, too indirect, too amorphous to justify their access to this Court and the further lowering of the constitutional barrier of locus standi. Again, with regret, I do not agree that the distinguished status of some of the petitioners as lawmakers gives them the appropriate locus standi. I cannot perceive how their constitutional rights and prerogatives as legislators can be adversely affected by the contract in question. Their right to enact laws for the general conduct of our society remains unimpaired and undiminished. 15 Their status as legislators, notwithstanding, they have to demonstrate that the said contract has caused them to suffer a personal, direct, and substantial injury in fact. They cannot simply advance a generic grievance in common with the people in general. I am not unaware of our ruling in De Guia v. Comelec, 16 viz: Before addressing the crux of the controversy, the Court observes that petitioner does not allege that he is running for reelection, much less, that he is prejudiced by the election, by district, in Paraaque. As such, he does not appear to have locus standi, a standing in law, a personal or substantial interest. (Sanidad vs. COMELEC, G.R. No. L-44640, October 12, 1976, 73 SCRA 333; Municipality of Malabang vs. Benito, G.R. No. L-28113, March 28, 1969, 27 SCRA 533). He does not also allege any legal right that has been violated by respondent. If for this alone, petitioner does not appear to have any cause of action. However, considering the importance of the issue involved, concerning as it does the political exercise of qualified voters affected by the apportionment, and petitioner alleging abuse of discretion and violation of the Constitution by respondent, We resolved to brush aside the question of procedural infirmity, even as We perceive the petition to be one of declaratory relief. We so held similarly through Mr. Justice Edgardo L. Paras in Osmena vs. Commission on Elections. It is my respectful submission, however, that we should re-examine de Guia. It treated the rule on locus standi as a mere procedural rule. It is not a plain procedural rule but a constitutional requirement derived from section 1, Article VIII of the Constitution which mandates courts of justice to settle only "actual controversies involving rights which are legally demandable and enforceable." The phrase has been construed since time immemorial to mean that a party in a constitutional litigation must demonstrate a standing to sue. By downgrading the requirement onlocus standi as a procedural rule which can be discarded in the name of public interest, we are in effect amending the Constitution by judicial fiat. De Guia would also brush aside the rule on locus standi if a case raises an important issue. In this regard, I join the learned observation of Mr. Justice Feliciano: "that it is not enough for the Court simply to invoke 'public interest' or even 'paramount considerations of national interest,' and to say that the specific requirements of such public interest can only be ascertained on a 'case to case' basis. For one thing, such an approach is not intellectually satisfying. For another, such an answer appears to come too close to saying that locus standi exists whenever at least a majority of the Members of this Court participating in a case feel that an appropriate case for judicial intervention has arisen."
I also submit that de Guia failed to perceive that the rule on locus standi has little to do with the issue posed in a case, however, important it may be. As well pointed out in Flast v. Cohen: 17 The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated. The "gist of the question of standing" is whether the party seeking relief has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S. 186, 204 (1962). In other words, when standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable. Thus, a party may have standing in a particular case, but the federal court may nevertheless decline to pass on the merits of the case because, for example, it presents a political question. A proper party is demanded so that federal courts will not be asked to decide "ill-defined controversies over constitutional issues," United public Workers v. Mitchell, 330 U.S. 75, 90 (1947), or a case which is of "a hypothetical or abstract character," Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 240 (1937). It is plain to see that in de Guia, the court took an unorthodox posture, to say the least. It held there was no proper party before it, and yet it resolved the issues posed by the petition. As there was no proper party before the court, its decision is vulnerable to be criticized as an advisory opinion. With due respect, the majority decision appears to have set a dangerous precedent by unduly trivializing the rule on locus standi. By its decision, the majority has entertained a public action to annul a private contract. In so doing, the majority may have given sixty (60) million Filipinos the standing to assail contracts of government and its agencies. This is an invitation for chaos to visit our law on contract, and certainly will not sit well with prospective foreign investors. Indeed, it is difficult to tread the path of the majority on this significant issue. The majority granted locus standi to petitioners because of lack of any other party with more direct and specific interest. But one has standing because he has standing on his own and standing cannot be acquired because others with standing have refused to come to court. The thesis is also floated that petitioners have standing as they can be considered taxpayers with right to file derivative suit like a stockholder's derivative suit in private corporations. The fact, however, is that PCSO is not a private but a quasi-public corporation. Our law on private corporation categorically sanctions stockholder's derivative suit. In contrast, our law on public corporation does not recognize this so-called taxpayer's derivative suit. Hence, the idea of a taxpayer's derivative suit, while alluring, has no legal warrant. Our brethren in the majority have also taken the unprecedented step of striking down a contrast at the importunings of strangers thereto, but without justifying the interposition of judicial power on any felt need to prevent violation of an important constitutional provision. The contract in question was voided on the sole ground that it violated an ordinary statute, section 1 of R.A. 1169, as amended by B.P. Blg. 42. If there is no provision of the Constitution that is involved in the case at bench, it boggles the mind how the majority can invoke considerations of national interest to justify its abandonment of the rule on locus standi. The volume of noise created by the case cannot magically convert it to a case of
paramount national importance. By its ruling, the majority has pushed the Court in unchartered water bereft of any compass, and it may have foisted the false hope that it is the repository of all remedies. If I pay an unwavering reverence to the rule of locus standi, it is because I consider it as a touchstone in maintaining the proper balance of power among the three branches of our government. The survival of our democracy rests in a large measure on our ability to maintain this delicate equipoise of powers. For this reason, I look at judicial review from a distinct prism. I see it both as a power and a duty. It is a power because it enables the judiciary to check excesses of the Executive and the Legislative. But, it is also a duty because its requirement of locus standi, among others, Executive and the Legislative. But, it is also a duty because its requirement oflocus standi, among others, keeps the judiciary from overreaching the powers of the other branches of government. By balancing this duality, we are able to breathe life to the principle of separation of powers and prevent tyranny. To be sure, it is our eternal concern to prevent tyranny but that includes tyranny by ourselves. The Constitution did not install a government by the judiciary, nay, not a government by the unelected. In offering this submission, I reject the sublimal fear that an unyielding insistence on the rule on locus standi will weaken the judiciary vis-a-vis the other branches of government. The hindsight of history ought to tell us that it is not powerper se that strengthens. Power unused is preferable than power misused. We contribute to constitutionalism both by the use of our power to decide and its non use. As well said, the cases we decide are as significant as the cases we do not decide. Real power belongs to him who has power over power. IN VIEW WHEREOF, and strictly on the ground of lack of locus standi on the part of petitioners, I vote to DENY the petition. VITUG, J., dissenting: Judicial power encompasses both an authority and duty to resolve "actual controversies involving rights which are legally demandable and enforceable" (Article VIII, Section 1, 1987 Constitution). As early as the case of Lamb vs. Phipps, 1 this Court ruled: "Judicial power, in its nature, is the power to hear and decide causes pending between parties who have the right to sue in the courts of law and equity." 2 An essential part of, and corollary to, this principle is the locus standi of a party litigant, referring to one who is directly affected by, and whose interest is immediate and substantial in, the controversy. The rule requires that a party must show a personal stake in the outcome of the case or an injury to himself that can be redressed by a favorable decision so as to warrant his invocation of the court's jurisdiction and to justify the exercise of the court's remedial powers in his behalf. 3 If it were otherwise, the exercise of that power can easily become too unwieldy by its sheer magnitude and scope to a point that may, in no small degree, adversely affect its intended essentiality, stability and consequentiality. Locus standi, nevertheless, admits of the so-called "taxpayer's suit." Taxpayer's suits are actions or proceedings initiated by one or more taxpayers in their own behalf or, conjunctively, in representation of others similarly situated for the purpose of declaring illegal or unauthorized certain acts of public officials which are claimed to be injurious to their common interests as such taxpayers (Cf. 71 Am Jur 2d., 179-180). The principle is predicated upon the theory that taxpayers are, in equity, the cestui
que trust of tax funds, and any illegal diminution thereof by public officials constitutes a breach of trust even as it may result in an increased burden on taxpayers (Haddock vs. Board of Public Education, 86 A 2d 157; Henderson vs. McCormick, 17 ALR 2d 470). Justice Brandeis of the United States Supreme Court, in his concurring opinion in Ashwander vs. Tennessee Valley Authority (297 U.S. 288), said: . . . . The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. Tyler v. The Judges, 179 U.S. 405; Hendrick v. Maryland, 234 U.S. 610, 621. Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right. Thus, the challenge by a public official interested only in the performance of his official duty will not be entertained. Columbus & Greenville Ry. v. Miller, 283 U.S. 96, 99-100. In Fairchild v. Hughes, 258 U.S. 126, the Court affirmed the dismissal of a suit brought by a citizen who sought to have the Nineteenth Amendment declared unconstitutional. In Massachusetts v. Mellon, 262 U.S. 447, the challenge of the federal Maternity Act was not entertained although made by the Commonwealth on behalf of all its citizens." Justice Brandeis' view, shared by Justice Frankfurter in Joint Anti-Fascist Refugee Commission vs. McGrath(351 U.S. 123), was adopted by the U.S. Supreme Court in Flast vs. Cohen (392 U.S. 83) which held that it is only when a litigant is able to show such a personal stake in the controversy as to assure a concrete adverseness in the issues submitted that legal standing can attach. A "taxpayer's suit," enough to confer locus standi to a party, we have held before, is understood to be a case where the act complained of directly involves the illegal disbursement of public funds derived from taxation. 4 It is not enough that the dispute concerns public funds. A contrary rule could easily lead to a limitless application of the term "taxpayer's suit," already by itself a broad concept, since a questioned act of government would almost so invariably entail, as a practical matter, a financial burden of some kind. To be sure, serious doubts have even been raised on the propriety and feasibility of unqualifiedly recognizing the "taxpayer's suit" as an exception from the standard rule of requiring a party who invokes the exercise of judicial power to have a real and personal interest or a direct injury in the outcome of a controversy. This Court has heretofore spoken on the matter, at times even venturing beyond the usual understanding of its applicability in the name of national or public interest. It is remarkable, nevertheless, that the accepted connotation of locus standi has still managed to be the rule, sanctioning, by way of exception, the so-called "taxpayer's suit" which courts accept on valid and compelling reasons. A provision which has been introduced by the 1987 Constitution is a definition, for the first time in our fundamental law, of the term "judicial power," as such authority and duty of courts of justice "to settle actual controversies involving rights which are legally demandable and enforceable and to determine whether or not there has been a grave abuse of discretion, amounting to lack or excess of jurisdiction, on the part of any branch or instrumentality of the Government" (Article VIII, Section 1, Constitution). I take it that the provision has not been intended to unduly mutate, let alone to disregard, the long established rules on locus standi. Neither has it been meant, I most respectfully submit, to do away with
the principle of separation of powers and its essential incidents such as by, in effect, conferring omnipotence on, or allowing an intrusion by, the courts in respect to purely political decisions, the exercise of which is explicitly vested elsewhere, and subordinate, to that of their own, the will of either the Legislative Department or the Executive Department both co- equal, independent and coordinate branches, along with the Judiciary, in our system of government. Again, if it were otherwise, there indeed would be truth to the charge, in the words of some constitutionalists, that "judicial tyranny" has been institutionalized by the 1987 Constitution, an apprehension which should, I submit, rather be held far from truth and reality. In sum, while any act of government, be it executive in nature or legislative in character, may be struck down and declared a nullity either because it contravenes an express provision of the Constitution or because it is perceived and found to be attended by or the result of grave abuse of discretion, amounting to lack or excess of jurisdiction, that issue, however, must first be raised in a proper judicial controversy. The Court's authority to look into and grant relief in such cases would necessitate locus standi on the part of party litigants. This requirement, in my considered view, is not merely procedural or technical but goes into the essence of jurisdiction and the competence of courts to take cognizance of justiciable disputes. In Bugnay Construction and Development Corporation vs. Laron, 5 this Court ruled: . . . . Considering the importance to the public of a suit assailing the constitutionality of a tax law, and in keeping with the Court's duty, specially explicated in the 1987 Constitution, to determine whether or not the other branches of the Government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them, the Supreme Court may brush aside technicalities of procedure and take cognizance of the suit. (Citing Kapatiran vs. Tan, G.R. No. 81311, June 30, 1988.) However, for the above rule to apply, it is exigent that the taxpayer-plaintiff sufficiently show that he would be benefited or injured by the judgment or entitled to the avails of the suit as a real party in interest. (Citing Estate of George Litton vs. Mendoza, G.R. No. 49120, June 30, 1988.) Before he can invoke the power of judicial review, he must specifically prove that he has sufficient interest in preventing the illegal expenditure of money raised by taxation (citing 11 Am. Jur. 761; Dumlao, et al. vs. Commission on Elections, 95 SCRA 392) and that he will sustain a direct injury as a result of the enforcement of the questioned statute or contract. (Citing Sanidad, et al. vs. Commission on Elections, et al., 73 SCRA 333.) It is not sufficient that he has merely a general interest common to all members of the public. (Citing Ex Parte Levitt, 302 U.S. 633, cited in 15 SCRA 497, Annotation.) As so well pointed out by Mr. Justice Camilo D. Quiason during the Court's deliberations, "due respect and proper regard for the rule on locus standi would preclude the rendition of advisory opinions and other forms of pronouncement on abstract issues, avoid an undue interference on matters which are not justiciable in nature and spare the Court from getting itself involved in political imbroglio." The words of Senate President Edgardo J. Angara, carry wisdom; we quote:
The powers of the political branches of our government over economic policies is rather clear: the Congress is to set in broad but definite strokes the legal framework and structures for economic development, while the Executive provides the implementing details for realizing the economic ends identified by Congress and executes the same. xxx xxx xxx If each economic decision made by the political branches of government, particularly by the executive, are fully open to re-examination by the judicial branch, then very little, if any, reliance can be placed by private economic actors on those decisions. Investors would always have to factor in possible costs arising from judicially-determined changes affecting their immediate business, notwithstanding assurances by executive authorities. Judicial decisions are, in addition, inflexible and can never substitute for sound decision-making at the level of those who are assigned to execute the laws of the land. Since judicial power cannot be exercised unless an actual controversy is brought before the courts for resolution, decisions cannot be properly modified unless another appropriate controversy arises." (Sen. Edgardo J. Angara, "The Supreme Court in Economic Policy Making," Policy Review A Quarterly Journal of Policy Studies, Vol. 1, No. 1, January-March 1994, published by the Senate Policy Studies Group, pp. 2-3.) A further set-back in entertaining the petition is that it unfortunately likewise strikes at factual issues. The allegations to the effect that irregularities have been committed in the processing and evaluation of the bids to favor respondent PGMC; that the Malacaang Special Review Committee did not verify warranties embodied in the contract; that the operation of telecommunication facilities is indispensable in the operation of the lottery system; the involvement of multi-national corporations in the operation of the on-line "hi-tech" lottery system, and the like, require the submission of evidence. This Court is not a trier of facts, and it cannot, at this time, resolve the above issues. Just recently, the Court has noted petitioners' manifestation of its petition with the Securities and Exchange Commission "for the nullification of the General Information Sheets of PGMC" in respect particularly to the nationality holdings in the corporation. The doctrine of primary jurisdiction would not justify a disregard of the jurisdiction of, nor would it permit us to now preempt, said Commission on the matter. Petitioners strongly assert, in an attempt to get the Court's concurrence in accepting the petition, that since lottery is a game of chance, the "lotto" system would itself be a "crime against morals" defined by Articles 195-199 6 of the Revised Penal Code. Being immoral and a criminal offense under the Revised Penal Code, petitioners contend, any special law authorizing gambling must, by all canons of statutory constructions, be interpreted strictly against the grantee. Citing previous decisions of this Court, they maintain that lottery is gambling, pure and simple, 7 and that this Court has consistently condemned the immorality and illegality of gambling to be a "national offense and not a minor transgression;" 8 "that it is a social scourge which must be stamped out;" 9 and, "that it is pernicious to the body politic and detrimental to the nation and its citizens." 10
I most certainly will not renounce this Court's above concerns. Nevertheless, the Court must recognize the limitations of its own authority. Courts neither legislate nor ignore legal mandates. Republic Act No. 1169, as amended, explicitly gives public respondent PCSO the authority and power "to hold and conduct sweepstakes races, lotteries, and other similar activities." In addition, it is authorized: c. To undertake any other activity that will enhance its funds generation, operations and funds management capabilities, subject to the same limitations provided for in the preceding paragraph. It shall have a Board of Directors, hereinafter designated the Board, composed of five members who shall be appointed, and whose compensation and term of office shall be fixed, by the President. xxx xxx xxx Sec.9. Powers and functions of the Board of Directors. The Board of Directors of the Office shall have the following powers and functions. (a) To adopt or amend such rules and regulations to implement the provisions of this Act. xxx xxx xxx (d) To promulgate rules and regulations for the operation of the Office and to do such act or acts as may be necessary for the attainment of its purposes and objectives. (Emphasis supplied). In People vs. Dionisio, 11 cited by the petitioners themselves, we remarked: "What evils should be corrected as pernicious to the body politic, and how correction should be done, is a matter primarily addressed to the discretion of the legislative department, not of the courts . . . ." In Valmonte vs. PCSO, 12 we also said: The Court, as held in several cases, does not pass upon questions of wisdom, justice or expediency of legislation and executive acts. It is not the province of the courts to supervise legislation or executive orders as to keep them within the bounds of propriety, moral values and common sense. That is primarily and even exclusively a concern of the political departments of the government; otherwise, there will be a violation of the principle of separation of powers. The constraints on judicial power are clear. I feel, the Court must thus beg off, albeit not without reluctance, from giving due course to the instant petition. Accordingly, I vote for the dismissal of the petition. KAPUNAN, J., dissenting: I regret that I am unable to join my colleagues in the majority in spite of my own personal distaste for gambling and other gaming operations. Such considerations aside, I feel there are compelling reasons why the instant petition should be dismissed. I shall forthwith state the reasons why.
Petitioners anchor their principal objections against the contract entered into between the Philippine Charity Sweepstakes Office (PCSO) and the PGMC on the ground that the contract entered into by the PCSO with the PGMC violates the PCSO Charter (R.A. No. 1169 as amended by B.P. Blg 427, specifically section 1 thereof which bars the said body from holding conducting lotteries "in collaboration, association or joint venture with any person association, company or entity."). However, a perusal of the petition reveals that the compelling reasons behind it, while based on apparently legal questions involving the contract between the PCSO and the PGMC, are prompted by the petitioners' moral objections against the whole idea of gambling operations operated by the government through the PCSO. The whole point of the petition, in essence, is a fight between good and evil, between the morality or amorality of lottery operations conducted on a wide scale involving millions of individuals and affecting millions of lives. Their media of opposition are the above stated defects in the said contract which they assail to be fatally defective. They come to this Court, as taxpayers and civic spirted citizens, asserting a right of standing on a transcendental issue which they assert to be of paramount public interest. Moral or legal questions aside, I believe that there are unfortunately certain standards 1 that have to be followed in the exercise of this Court's awesome power of review before this Court could even begin to assay the validity of the contract between the PCSO and the PGMC. This, in spite of the apparent expansion of judicial power granted by Section 1 of Article VIII of the 1987 Constitution. It is fundamental that such standards be complied with before this Court could even begin to explore the substantive issues raised by any controversy brought before it, for no issue brought before this court could possibly be so fundamental and paramount as to warrant a relaxation of the requisite rules for judicial review developed by settled jurisprudence inorder to avoid entangling this court in controversies which properly belong to the legislative or executive branches of our government. The potential harm to our system of government, premised on the concept of separation of powers, by the Court eager to exercise its powers and prerogatives at every turn, cannot be gainsaid. The Constitution does not mandate this Court to wield the power of judicial review with excessive vigor and alacrity in every area or at every turn, except in appropriate cases and controversies which meet established requirements for constitutional adjudication. Article VIII Sec. 1 of the Constitution notwithstanding, there are questions which I believe are still beyond the pale of judicial power. Moreover, it is my considered opinion that the instant petition does not meet the requirements set by this court for a valid exercise of judicial review. Our Constitution expressly defines judicial power as including "the duty to settle actual cases and controversiesinvolving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to a lack or excess of jurisdiction on the part of any branch or instrumentality of the government." 2 This constitutional requirement for an actual case and controversy limits this Court's power of review to precisely those suits between adversary litigants with real interests at stake 2 thus preventing it from making all sorts of hypothetical pronouncements on abstract, contingent and amorphous issues. The Court will therefore not pass upon the validity of an act of government or a statute passed by a legislative body without a requisite showing of injury. 3 A personal stake is essential, which absence renders our pronouncements gratuitous and certainly violative of the constitutional requirement for actual cases and controversies.
The requirement for standing based on personal injury may of course be bypassed, as the petitioners in this case attempt to do, by considering the case as a "taxpayer suit" which would thereby clothe them with the personality they would lack under ordinary circumstances. However, the act assailed by the petitioners on the whole involves the generation rather than disbursement of public funds. In a line of cases starting from Pascual v. Secretary of Public Works 4 "taxpayer suits" have been understood to refer only to those cases where the act or statute assailed involves the illegal or unconstitutional disbursement of public funds derived from taxation. The main premise behind the "taxpayer suit" is that the pecuniary interest of the taxpayer is involved whenever there is an illegal or wasteful use of public funds which grants them the right to question the appropriation or disbursement on the basis of their contribution to government funds. 5 Since it has not been alleged that an illegal appropriation or disbursement of a fund derived from taxation would be made in the instant case, I fail to see how the petitioners in this case would be able to satisfy the locus standi requirement on the basis of a "taxpayer's suit". This alone should inhibit this Court from proceeding with the case at bench. The interest alleged and the potential injury asserted are far too general and hypothetical for us to rush into a judicial determination of what to me appears to be judgment better left to executive branch of our government. This brings me to one more important point: The idea that a norm of constitutional adjudication could be lightly brushed aside on the mere supposition that an issue before the Court is of paramount public concern does great harm to a democratic system which espouses a delicate balance between three separate but co-equal branches of government. It is equally of paramount public concern, certainly paramount to the survival of our democracy, that acts of the other branches of government are accorded due respect by this Court. Such acts, done within their sphere of competence, have been and should always be accorded with a presumption of regularity. When such acts are assailed as illegal or unconstitutional, the burden falls upon those who assail these acts to prove that they satisfy the essential norms of constitutional adjudication, because when we finally proceed to declare an act of the executive or legislative branch of our government unconstitutional or illegal, what we actually accomplish is the thwarting of the will of the elected representatives of the people in the executive or legislative branches government.6 Notwithstanding Article VIII, Section 1 of the Constitution, since the exercise of the power of judicial review by this Court is inherently antidemocratic, this Court should exercise a becoming modesty in acting as a revisor of an act of the executive or legislative branch. The tendency of a frequent and easy resort to the function of judicial review, particularly in areas of economic policy has become lamentably too common as to dwarf the political capacity of the people expressed through their representatives in the policy making branches of government and to deaden their sense of moral responsibility. 7 This court has been accused, of late, of an officious tendency to delve into areas better left to the political branches of government. 8 This tendency, if exercised by a court running riot over the other coequal branches of government, poses a greater danger to our democratic system than the perceived danger real or imagined of an executive branch espousing economic or social policies of doubtful moral worth. Moreover economic policy decisions in the current milieu- including the act challenged in the instant case-involve complex factors requiring flexibility and a wide range of discretion on the part of
our economic managers which this Court should respect because our power of review, under the constitution, is a power to check, not to supplant those acts or decisions of the elected representatives of the people. Finally, the instant petition was brought to this Court on the assumption that the issue at bench raises primarily constitutional issues. As it has ultimately turned out, the core foundation of the petitioners' objections to the LOTTO operations was based on the validity of the contract between the PCSO and the PGMC in the light of Section 1 of R.A. 1169 as amended by B.P. Blg. 427. It might have been much more appropriate for the issue to have taken its normal course in the courts below. I vote to deny the petition. # Footnotes 1 PGMC's Comment, 3-4; Rollo, 181-182. 2 Annex "A," Id.; Id., 207-220. 3 Rollo, 210-211. 4 Rollo, 213. 5 Id., 215. 6 Id., 220. 7 PGMC's Comment, 7; Rollo, 184. 8 Annex "P" of Petition. 9 Annexes "L" and "N" of Petition. 10 Petition, 9; Rollo, 10. The announcement also stated that G-Tech Philippines, Inc. and the Tanjong Public Limited Company had likewise been authorized to operate separate lotto systems. 11 Id.; Id. 12 Annex "C" of Petition. 13 Petition, 10; Rollo, 11. The meeting was called to deliberate on the proposed nationwide on-line lottery program. 14 Id.; Id. 15 Id.; Id. 16 Annex "J" of Petition. 17 Annex "H" of Petition.
18 Rollo, 13-14. 19 Rollo, 16-19. 20 Id., 27-28; 30-32. 21 Id., 27. 22 Rollo, 35. 23 Id., 180-181. 24 Citing Teresa Electric & Power Co., Inc. vs. Public Service Commission, 21 SCRA 198 [1967]. 25 175 SCRA 262 [1989]. 26 G.R. No. 78716, 22 September 1987. 27 Philippine Christian Lawyers Fellowship, Inc., Gamaliel G. Bongco, Oscar Karaan, and Jedideoh Sincero (Rollo, 147); Catholic Lawyer's Guild of the Philippines, Inc., Enrique Syquia, and Pacifico Ma. Castro (Id., 154). 28 Rollo, 249 et seq. 29 G.R. No. L-2044 (Araneta vs. Dinglasan); G.R. No. L-2756 (Araneta vs. Angeles); G.R. No. L-3054 (Rodriguez vs. Tesorero de Filipinas); G.R No. L-3055 (Guerrero vs. Commissioner of Customs); and G.R. No. L-3056 (Barredo vs. Commission on Elections), 84 Phil. 368 [1949]. 30 Tan vs. Macapagal, 43 SCRA 677, 680 [1972]. 31 Sanidad vs. Commission on Elections, 73 SCRA 333 [1976]. 32 112 SCRA 294, 314-315 [1982]. 33 163 SCRA 371, 378 [1988]. 34 197 SCRA 52, 60 [1991]. 35 175 SCRA 343, 364-365 [1989] (emphasis supplied). 36 180 SCRA 496, 502 [1988]. 37 345 US 153, L ed 918, 735 Ct 609. 38 Philippine Constitution Association, Inc. vs. Gimenez, 15 SCRA 479 [1965]. 39 Civil Liberties Union vs. Executive Secretary, 194 SCRA 317 [1991]. 40 Guingona vs. Carague, 196 SCRA 221 [1991].
41 Osmea vs. Commission on Elections, 199 SCRA 750 [1991]. 42 Basco vs. Philippine Gaming and Amusement Corp., 197 SCRA 52 [1991]. 43 Carpio vs. Executive Secretary, 206 SCRA 290 [1992]. 44 Iloilo Palay and Corn Planters Association, Inc. vs. Feliciano, 13 SCRA 377 [1965]. 45 Sanidad vs. Commission on Elections, supra. 46 Laurel vs. Garcia, 187 SCRA 797 [1990]. 47 Garcia vs. Board of Investments, 177 SCRA 374 [1989]; Garcia vs. Board of Investments, 191 SCRA 288 [1990]. 48 Maceda vs. Macaraig, 197 SCRA 771 [1991]. 49 Maceda vs. Energy Regulatory Board, 199 SCRA 454 [1991]. 50 Garcia vs. Executive Secretary, 211 SCRA 219 [1992]. 51 De Guia vs. Commission on Elections, 208 SCRA 420 [1992]. 52 Pasay Law and Conscience Union, Inc. vs. Cuneta, 101 SCRA 662 [1980]. 53 62 SCRA 275 [1975]. 54 Supra. 55 Record of the Batasan, vol. Two, 993. 56 Id., 1006-1007. 57 Record of the Batasan, vol. Two, 1007 (emphasis supplied). 58 Id. 59 36 AM. JUR. 2d Franchises 26 (1968). 60 36 AM. JUR. 2d Franchises 63 (1968). 61 38 AM. JUR. 2d Gambling S 18 (1968). 62 Black's Law Dictionary, Sixth Ed., 88. 63 Id., 261. 64 Id., 121. 65 Id., 839.
66 PGMC's Comment; Rollo, 181-182. 67 It declares therein that it "has the legal authority under R.A. 1169, as amended, to hold and conduct sweepstakes races, lotteries, and other similar activities." 68 Attached to the Contract of Lease as Annex "A" is the Master Games Plan prepared by the PGMC and approved by the PCSO. FELICIANO, J. concurring: 1 The requirement of locus standi forms part of the "application of ordinary law technique to the Constitution" which historically, in the United States, promoted and reinforced the "legalization" or acceptance of the power of judicial review; S. Snowiss, Judicial Review and the Law of the Constitution, p. 197 (1990). 2 A stimulating effort is offered by Prof. Laurence H. Tribe, Constitutional Choices (1985), Chap. 8, where he examined certain trends in, and circumstances relating to, the caselaw of the Supreme Court of the United States which "make a satisfactory theory of standing specially elusive" (p. 100). 3 A.M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 169 (1962); brackets supplied. PADILLA, J. separate concurring: 1 KILOSBAYAN, INCORPORATED, a non-stock corporation composed of civic-spirited citizens, pastors, priests, nuns and lay leaders who are committed to the cause of truth, justice and national renewal as well as members of the Board of Trustees of KILOSBAYAN as taxpayers and concerned citizens and senators Freddie Webb, Wigberto Taada and Representative Joker P. Arroyo as taxpayers, concerned citizens and legislators. PUNO, J. dissenting: 1 Petition, pp. 5-6. 2 Ibid, p. 6. 3 Ibid, p. 7. 4 Ibid. 5 Philippine Political Law, 1989 ed., p. 18 citing Dumlao v. COMELEC, 95 SCRA 392. 6 Ibid., citations omitted. 7 G.R. No. 101083. 8 G.R. No. 86344, 180 SCRA 496 [1989].
9 Dorsen, Bender, Neuborne, Political and Civil Rights in the United, States, Vol. I, 4th ed., p. 1200. 10 418 U.S. 166, 194 S. Ct. 2940, 41 L. Ed. 2d 678 [1974]. 11 Manila Bulletin, April 21, 1994, pp. 1 and 8. 12 95 SCRA 392, 403. 13 US v. Richardson, op. cit. 14 G.R. No. 79084, September 22, 1987. 15 Compare Coleman v. Miller, 307 US 433 [1939]; Mitchell v. Laird, 488 F2d 611 CD.C. Cir. 1973; Kennedy v. Sampson, 511 F2d 430 CD.C. Cir. 1974. 16 G.R. No. 104712, May 6, 1992, 208 SCRA 420. 17 392 U.S. 83, 88 S. Ct. 1942, 20 L ed. 2d. 947 [1968]. VITUG, J. separate opinion: 1 22 Phil. 456, 559. 2 See also Lopez vs. Roxas, 17 SCRA 761. 3 Warth vs. Seldin, 422 U.S. 490, 498-499, 45 L.Ed. 2d 343, 95 S. Ct. 2197 (1975); Guzman vs. Marrero, 180 U.S. 81, 45 L.Ed. 436, 21 S.Ct. 293 (1901); McMicken vs. United States, 97 U.S. 204, 24 L.Ed. 947 (1978); Silver Star Citizens' Committee vs. Orlando Fla. 194 So. 2d 681 (1967); In Re Kenison's Guardianship, 72 S.D. 180, 31 N.W. 2d 326 (1948). 4 See Pascual v. Secretary of Public Works, 110 Phil. 331; Maceda v. Macaraig, 197 SCRA 771; Lozada v. COMELEC, 120 SCRA 337; Dumlao vs. COMELEC, 95 SCRA 392; Gonzales v. Marcos, 65 SCRA 624. 5 176 SCRA 240, 251. 6 The provision of Arts. 195-199 of the Revised Penal Code (Forms of Gambling and Betting), Republic Act No. 3063 (Horse Racing Bookies), Presidential Decree No. 483 (Penalizing Betting, Game-fixing or Pointshaving and Machinations in Sports Contests); No. 449, as amended (Cockfighting Law of 1974); No. 510 (Slot Machines) in relation to Opinion Nos. 33 and 97 of the Ministry of Justice; No. 1306 (JaiAlai Bookies) have been repealed by Presidential Decree No. 1602, otherwise known as the New Gambling Law (Prescribing Stiffer Penalties on Illegal Gambling). Subsequently, Letter of Instruction No. 816 was issued which excluded certain prohibited games under Presidential Decree No. 1602. 7 U.S. v. Filart, 30 Phil. 80, 83 /1915/; U.S. v. Baguio, 39 Phil. 962, 966. 8 Ly Hong v. Republic, 109 Phil. 635. 9 People v. De Gorostiza, et al., 77 Phil. 88.
10 People v. Dionisio, 22 SCRA 129. 11 22 SCRA 1299, 1302. 12 G.R. No. 78716 and G.R. No. 79084, En Banc Resolution, 22 September 1987. KAPUNAN, J. dissenting: 1 People v. Vera, 65 Phil. 56 (1937) 2 JACKSON, The Supreme Court in the American System of Government in McKay, An American Constitutional Law Reader 30 (1958). 3 Ashwander v. Tennessee Valley Authority, 297 US 288, at 346-348 (1936). 4 110 Phil. 331 (1960). See also Lozada v. COMELEC 120 SCRA 337 (1983); Dumlao v. COMELEC, 95 SCRA 392 (1980); Maceda v. Macaraig, 197 SCRA 771, (1991). 5 Appeal of Sears, Roebuck and Co., 123 Ind., App.; 109 NE 2d., 620 (1952). 6 See A. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 16-17 (1962). 7 Id., citing J.B.Thayer, JOHN MARSHALL, 106-107 (1901). 8 See Romulo, The Supreme Court and Economic Policy: A Plea for Judicial Abstinence 67 Phil. L.J. 348353 (1993). See also Fernandez, Judicial Overreaching in Selected Supreme Court Decisions Affecting Economic Policy, 67 Phil. L.J. 332-347 (1993) and Castro & Pison, The Economic Policy Determining Function of the Supreme Court in Times of National Crisis, 67 Phil. L.J. 354-411 (1993).
EN BANC
[G.R. No. 159139. January 13, 2004]
INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES, MA. CORAZON M. AKOL, MIGUEL UY, EDUARDO H. LOPEZ, AUGUSTO C. LAGMAN, REX C. DRILON, MIGUEL HILADO, LEY SALCEDO, and MANUEL ALCUAZ JR., petitioners, vs. COMMISSION ON ELECTIONS; COMELEC CHAIRMAN BENJAMIN ABALOS SR.; COMELEC BIDDING and AWARD COMMITTEE CHAIRMAN EDUARDO D. MEJOS and MEMBERS GIDEON DE GUZMAN, JOSE F. BALBUENA, LAMBERTO P. LLAMAS, and BARTOLOME SINOCRUZ JR.; MEGA PACIFIC eSOLUTIONS, INC.; and MEGA PACIFIC CONSORTIUM, respondents . DECISION
PANGANIBAN, J .:
There is grave abuse of discretion (1) when an act is done contrary to the Constitution, the law or jurisprudence; [1] or (2) when it is executed whimsically, capriciously or arbitrarily out of malice, ill will or personal bias.[2] In the present case, the Commission on Elections approved the assailed Resolution and awarded the subject Contract not only in clear violation of law and jurisprudence, but also in reckless disregard of its own bidding rules and procedure. For the automation of the counting and canvassing of the ballots in the 2004 elections, Comelec awarded the Contract to Mega Pacific Consortium an entity that had not participated in the bidding. Despite this grant, the poll body signed the actual automation Contract with Mega Pacific eSolutions, Inc., a company that joined the bidding but had not met the eligibility requirements. Comelec awarded this billion-peso undertaking with inexplicable haste, without adequately checking and observing mandatory financial, technical and legal requirements. It also accepted the proferred computer hardware and software even if, at the time of the award, they had undeniably failed to pass eight critical requirements designed to safeguard the integrity of elections, especially the following three items: They failed to achieve the accuracy rating criteria of 99.9995 percent set-up by the Comelec itself They were not able to detect previously downloaded results at various canvassing or consolidation levels and to prevent these from being inputted again They were unable to print the statutorily required audit trails of the count/canvass at different levels without any loss of data Because of the foregoing violations of law and the glaring grave abuse of discretion committed by Comelec, the Court has no choice but to exercise its solemn constitutional duty[3] to void the assailed Resolution and the subject Contract. The illegal, imprudent and hasty actions of the Commission have not only desecrated legal and jurisprudential norms, but have also cast serious doubts upon the poll bodys
ability and capacity to conduct automated elections. Truly, the pith and soul of democracy -- credible, orderly, and peaceful elections -- has been put in jeopardy by the illegal and gravely abusive acts of Comelec.
The Case Before us is a Petition [4] under Rule 65 of the Rules of Court, seeking (1) to declare null and void Resolution No. 6074 of the Commission on Elections (Comelec), which awarded Phase II of the Modernization Project of the Commission to Mega Pacific Consortium (MPC); (2) to enjoin the implementation of any further contract that may have been entered into by Comelec either with Mega Pacific Consortium and/or Mega Pacific eSolutions, Inc. (MPEI); and (3) to compel Comelec to conduct a re-bidding of the project.
The Facts The following facts are not disputed. They were culled from official documents, the parties pleadings, as well as from admissions during the Oral Argument on October 7, 2003. On June 7, 1995, Congress passed Republic Act 8046, [5] which authorized Comelec to conduct a nationwide demonstration of a computerized election system and allowed the poll body to pilot-test the system in the March 1996 elections in the Autonomous Region in Muslim Mindanao (ARMM). On December 22, 1997, Congress enacted Republic Act 8436[6] authorizing Comelec to use an automated election system (AES) for the process of voting, counting votes and canvassing/consolidating the results of the national and local elections. It also mandated the poll body to acquire automated counting machines (ACMs), computer equipment, devices and materials; and to adopt new electoral forms and printing materials. Initially intending to implement the automation during the May 11, 1998 presidential elections, Comelec -in its Resolution No. 2985 dated February 9, 1998[7] -- eventually decided against full national implementation and limited the automation to the Autonomous Region in Muslim Mindanao (ARMM). However, due to the failure of the machines to read correctly some automated ballots in one town, the poll body later ordered their manual count for the entire Province of Sulu. [8] In the May 2001 elections, the counting and canvassing of votes for both national and local positions were also done manually, as no additional ACMs had been acquired for that electoral exercise allegedly because of time constraints. On October 29, 2002, Comelec adopted in its Resolution 02-0170 a modernization program for the 2004 elections. It resolved to conduct biddings for the three (3) phases of its Automated Election System; namely, Phase I - Voter Registration and Validation System; Phase II - Automated Counting and Canvassing System; and Phase III - Electronic Transmission. On January 24, 2003, President Gloria Macapagal-Arroyo issued Executive Order No. 172, which allocated the sum of P2.5 billion to fund the AES for the May 10, 2004 elections. Upon the request of Comelec, she authorized the release of an additional P500 million. On January 28, 2003, the Commission issued an Invitation to Apply for Eligibility and to Bid, which we quote as follows:
INVITATION TO APPLY FOR ELIGIBILITY AND TO BID The Commission on Elections (COMELEC), pursuant to the mandate of Republic Act Nos. 8189 and 8436, invites interested offerors, vendors, suppliers or lessors to apply for eligibility and to bid for the procurement by purchase, lease, lease with option to purchase, or otherwise, supplies, equipment, materials and services needed for a comprehensive Automated Election System, consisting of three (3) phases: (a) registration/verification of voters, (b) automated counting and consolidation of votes, and (c) electronic transmission of election results, with an approved budget of TWO BILLION FIVE HUNDRED MILLION (Php2,500,000,000) Pesos. Only bids from the following entities shall be entertained: a. Duly licensed Filipino citizens/proprietorships; b. Partnerships duly organized under the laws of the Philippines and of which at least sixty percent (60%) of the interest belongs to citizens of the Philippines; c. Corporations duly organized under the laws of the Philippines, and of which at least sixty percent (60%) of the outstanding capital stock belongs to citizens of the Philippines; d. Manufacturers, suppliers and/or distributors forming themselves into a joint venture, i.e., a group of two (2) or more manufacturers, suppliers and/or distributors that intend to be jointly and severally responsible or liable for a particular contract, provided that Filipino ownership thereof shall be at least sixty percent (60%); and e. Cooperatives duly registered with the Cooperatives Development Authority. Bid documents for the three (3) phases may be obtained starting 10 February 2003, during office hours from the Bids and Awards Committee (BAC) Secretariat/Office of Commissioner Resurreccion Z. Borra, 7th Floor, Palacio del Governador, Intramuros, Manila, upon payment at the Cash Division, Commission on Elections, in cash or cashiers check, payable to the Commission on Elections, of a non-refundable amount of FIFTEEN THOUSAND PESOS (Php15,000.00) for each phase. For this purpose, interested offerors, vendors, suppliers or lessors have the option to participate in any or all of the three (3) phases of the comprehensive Automated Election System. A Pre-Bid Conference is scheduled on 13 February 2003, at 9:00 a.m. at the Session Hall, Commission on Elections, Postigo Street, Intramuros, Manila. Should there be questions on the bid documents, bidders are required to submit their queries in writing to the BAC Secretariat prior to the scheduled Pre-Bid Conference. Deadline for submission to the BAC of applications for eligibility and bid envelopes for the supply of the comprehensive Automated Election System shall be at the Session Hall, Commission on Elections, Postigo Street, Intramuros, Manila on 28 February 2003 at 9:00 a.m. The COMELEC reserves the right to review the qualifications of the bidders after the bidding and before the contract is executed. Should such review uncover any misrepresentation made in the eligibility statements, or any changes in the situation of the bidder to materially downgrade the substance of such statements, the COMELEC shall disqualify the bidder upon due notice without any obligation whatsoever for any expenses or losses that may be incurred by it in the preparation of its bid.[9] On February 11, 2003, Comelec issued Resolution No. 5929 clarifying certain eligibility criteria for bidders and the schedule of activities for the project bidding, as follows: 1.) Open to Filipino and foreign corporation duly registered and licensed to do business and is actually doing business in the Philippines, subject to Sec. 43 of RA 9184 (An Act providing In the Modernization Standardization and Regulation of the Procurement Activities of the Government and for other purposes etc.)
2.) Track Record: a) For counting machines should have been used in at least one (1) political exercise with no less than Twenty Million Voters; b) For verification of voters the reference site of an existing data base installation using Automated Fingerprint Identification System (AFIS) with at least Twenty Million. 3.) Ten percent (10%) equity requirement shall be based on the total project cost; and 4.) Performance bond shall be twenty percent (20%) of the bid offer. RESOLVED moreover, that: 1) A. Due to the decision that the eligibility requirements and the rest of the Bid documents shall be released at the same time, and the memorandum of Comm. Resurreccion Z. Borra dated February 7, 2003, the documents to be released on Friday, February 14, 2003 at 2:00 oclock p.m. shall be the eligibility criteria, Terms of Reference (TOR) and other pertinent documents; B. Pre-Bid conference shall be on February 18, 2003; and C. Deadline for the submission and receipt of the Bids shall be on March 5, 2003. 2) The aforementioned documents will be available at the following offices: a) Voters Validation: Office of Comm. Javier b) Automated Counting Machines: Office of Comm. Borra c) Electronic Transmission: Office of Comm. Tancangco [10] On February 17, 2003, the poll body released the Request for Proposal (RFP) to procure the election automation machines. The Bids and Awards Committee (BAC) of Comelec convened a pre-bid conference on February 18, 2003 and gave prospective bidders until March 10, 2003 to submit their respective bids. Among others, the RFP provided that bids from manufacturers, suppliers and/or distributors forming themselves into a joint venture may be entertained, provided that the Philippine ownership thereof shall be at least 60 percent. Joint venture is defined in the RFP as a group of two or more manufacturers, suppliers and/or distributors that intend to be jointly and severally responsible or liable for a particular contract.[11] Basically, the public bidding was to be conducted under a two-envelope/two stage system. The bidders first envelope or the Eligibility Envelope should establish the bidders eligibility to bid and its qualifications to perform the acts if accepted. On the other hand, the second envelope would be the Bid Envelope itself. The RFP outlines the bidding procedures as follows: 25. Determination of Eligibility of Prospective Bidders 25.1 The eligibility envelopes of prospective Bidders shall be opened first to determine their eligibility. In case any of the requirements specified in Clause 20 is missing from the first bid envelope, the BAC shall declare said prospective Bidder as ineligible to bid. Bid envelopes of ineligible Bidders shall be immediately returned unopened. 25.2 The eligibility of prospective Bidders shall be determined using simple pass/fail criteria and shall be determined as either eligible or ineligible. If the prospective Bidder is rated passed for all the legal, technical and financial requirements, he shall be considered eligible. If the prospective Bidder is rated failed in any of the requirements, he shall be considered ineligible.
26. Bid Examination/Evaluation 26.1 The BAC will examine the Bids to determine whether they are complete, whether any computational errors have been made, whether required securities have been furnished, whether the documents have been properly signed, and whether the Bids are generally in order. 26.2 The BAC shall check the submitted documents of each Bidder against the required documents enumerated under Clause 20, to ascertain if they are all present in the Second bid envelope (Technical Envelope). In case one (1) or more of the required documents is missing, the BAC shall rate the Bid concerned as failed and immediately return to the Bidder its Third bid envelope (Financial Envelope) unopened. Otherwise, the BAC shall rate the first bid envelope as passed. 26.3 The BAC shall immediately open the Financial Envelopes of the Bidders whose Technical Envelopes were passed or rated on or above the passing score. Only Bids that are determined to contain all the bid requirements for both components shall be rated passed and shall immediately be considered for evaluation and comparison. 26.4 In the opening and examination of the Financial Envelope, the BAC shall announce and tabulate the Total Bid Price as calculated. Arithmetical errors will be rectified on the following basis: If there is a discrepancy between words and figures, the amount in words will prevail. If there is a discrepancy between the unit price and the total price that is obtained by multiplying the unit price and the quantity, the unit price shall prevail and the total price shall be corrected accordingly. If there is a discrepancy between the Total Bid Price and the sum of the total prices, the sum of the total prices prevail and the Total Bid Price shall be corrected accordingly. 26.5 Financial Proposals which do not clearly state the Total Bid Price shall be rejected. Also, Total Bid Price as calculated that exceeds the approved budget for the contract shall also be rejected. 27. Comparison of Bids 27.1 The bid price shall be deemed to embrace all costs, charges and fees associated with carrying out all the elements of the proposed Contract, including but not limited to, license fees, freight charges and taxes. 27.2 The BAC shall establish the calculated prices of all Bids rated passed and rank the same in ascending order. x x x x x x x x x 29. Postqualification 29.1 The BAC will determine to its satisfaction whether the Bidder selected as having submitted the lowest calculated bid is qualified to satisfactorily perform the Contract. 29.2 The determination will take into account the Bidders financial, technical and production capabilities/resources. It will be based upon an examination of the documentary evidence of the Bidders qualification submitted by the Bidder as well as such other information as the BAC deems necessary and appropriate. 29.3 A bid determined as not substantially responsive will be rejected by the BAC and may not subsequently be made responsive by the Bidder by correction of the non-conformity. 29.4 The BAC may waive any informality or non-conformity or irregularity in a bid which does not constitute a material deviation, provided such waiver does not prejudice or affect the relative ranking of any Bidder.
29.5 Should the BAC find that the Bidder complies with the legal, financial and technical requirements, it shall make an affirmative determination which shall be a prerequisite for award of the Contract to the Bidder. Otherwise, it will make a negative determination which will result in rejection of the Bidders bid, in which event the BAC will proceed to the next lowest calculated bid to make a similar determination of that Bidders capabilities to perform satisfactorily.[12] Out of the 57 bidders,[13] the BAC found MPC and the Total Information Management Corporation (TIMC) eligible. For technical evaluation, they were referred to the BACs Technical Working Group (TWG) and the Department of Science and Technology (DOST). In its Report on the Evaluation of the Technical Proposals on Phase II, DOST said that both MPC and TIMC had obtained a number of failed marks in the technical evaluation. Notwithstanding these failures, Comelec en banc, on April 15, 2003, promulgated Resolution No. 6074 awarding the project to MPC. The Commission publicized this Resolution and the award of the project to MPC on May 16, 2003. On May 29, 2003, five individuals and entities (including the herein Petitioners Information Technology Foundation of the Philippines , represented by its president, Alfredo M. Torres; and Ma. Corazon Akol) wrote a letter[14] to Comelec Chairman Benjamin Abalos Sr. They protested the award of the Contract to Respondent MPC due to glaring irregularities in the manner in which the bidding process had been conducted. Citing therein the noncompliance with eligibility as well as technical and procedural requirements (many of which have been discussed at length in the Petition), they sought a re-bidding. In a letter-reply dated June 6, 2003, [15] the Comelec chairman -- speaking through Atty. Jaime Paz, his head executive assistant -- rejected the protest and declared that the award would stand up to the strictest scrutiny. Hence, the present Petition.[16]
The Issues In their Memorandum, petitioners raise the following issues for our consideration: 1. The COMELEC awarded and contracted with a non-eligible entity; x x x 2. Private respondents failed to pass the Technical Test as required in the RFP. Notwithstanding, such failure was ignored. In effect, the COMELEC changed the rules after the bidding in effect changing the nature of the contract bidded upon. 3. Petitioners have locus standi . 4. Instant Petition is not premature. Direct resort to the Supreme Court is justified.[17] In the main, the substantive issue is whether the Commission on Elections, the agency vested with the exclusive constitutional mandate to oversee elections, gravely abused its discretion when, in the exercise of its administrative functions, it awarded to MPC the contract for the second phase of the comprehensive Automated Election System. Before discussing the validity of the award to MPC, however, we deem it proper to first pass upon the procedural issues: the legal standing of petitioners and the alleged prematurity of the Petition.
This Courts Ruling
The Petition is meritorious.
First Procedural Issue: Locus Standi of Petitioners Respondents chorus that petitioners do not possess locus standi, inasmuch as they are not challenging the validity or constitutionality of RA 8436. Moreover, petitioners supposedly admitted during the Oral Argument that no law had been violated by the award of the Contract. Furthermore, they allegedly have no actual and material interest in the Contract and, hence, do not stand to be injured or prejudiced on account of the award. On the other hand, petitioners -- suing in their capacities as taxpayers, registered voters and concerned citizens -- respond that the issues central to this case are of transcendental importance and of national interest. Allegedly, Comelecs flawed bidding and questionable award of the Contract to an unqualified entity would impact directly on the success or the failure of the electoral process. Thus, any taint on the sanctity of the ballot as the expression of the will of the people would inevitably affect their faith in the democratic system of government. Petitioners further argue that the award of any contract for automation involves disbursement of public funds in gargantuan amounts; therefore, public interest requires that the laws governing the transaction must be followed strictly. We agree with petitioners. Our nations political and economic future virtually hangs in the balance, pending the outcome of the 2004 elections. Hence, there can be no serious doubt that the subject matter of this case is a matter of public concern and imbued with public interest; [18] in other words, it is of paramount public interest[19] and transcendental importance.[20] This fact alone would justify relaxing the rule on legal standing, following the liberal policy of this Court whenever a case involves an issue of overarching significance to our society.[21] Petitioners legal standing should therefore be recognized and upheld. Moreover, this Court has held that taxpayers are allowed to sue when there is a claim of illegal disbursement of public funds,[22] or if public money is being deflected to any improper purpose;[23] or when petitioners seek to restrain respondent from wasting public funds through the enforcement of an invalid or unconstitutional law.[24] In the instant case, individual petitioners, suing as taxpayers, assert a material interest in seeing to it that public funds are properly and lawfully used. In the Petition, they claim that the bidding was defective, the winning bidder not a qualified entity, and the award of the Contract contrary to law and regulation. Accordingly, they seek to restrain respondents from implementing the Contract and, necessarily, from making any unwarranted expenditure of public funds pursuant thereto. Thus, we hold that petitioners possess locus standi.
Second Procedural Issue: Alleged Prematurity Due to Non-Exhaustion of Administrative Remedies Respondents claim that petitioners acted prematurely, since they had not first utilized the protest mechanism available to them under RA 9184, the Government Procurement Reform Act, for the settlement of disputes pertaining to procurement contracts. Section 55 of RA 9184 states that protests against decisions of the Bidding and Awards Committee in all
stages of procurement may be lodged with the head of the procuring entity by filing a verified position paper and paying a protest fee. Section 57 of the same law mandates that in no case shall any such protest stay or delay the bidding process, but it must first be resolved before any award is made. On the other hand, Section 58 provides that court action may be resorted to only after the protests contemplated by the statute shall have been completed. Cases filed in violation of this process are to be dismissed for lack of jurisdiction. Regional trial courts shall have jurisdiction over final decisions of the head of the procuring entity, and court actions shall be instituted pursuant to Rule 65 of the 1997 Rules of Civil Procedure. Respondents assert that throughout the bidding process, petitioners never questioned the BAC Report finding MPC eligible to bid and recommending the award of the Contract to it (MPC). According to respondents, the Report should have been appealed to the Comelec en banc, pursuant to the aforementioned sections of RA 9184. In the absence of such appeal, the determination and recommendation of the BAC had become final. The Court is not persuaded. Respondent Comelec came out with its en banc Resolution No. 6074 dated April 15, 2003, awarding the project to Respondent MPC even before the BAC managed to issue its written report and recommendation on April 21, 2003. Thus, how could petitioners have appealed the BACs recommendation or report to the head of the procuring entity (the chairman of Comelec), when the Comelec en banc had already approved the award of the contract to MPC even before petitioners learned of the BAC recommendation? It is claimed [25] by Comelec that during its April 15, 2003 session, it received and approved the verbal report and recommendation of the BAC for the award of the Contract to MPC, and that the BAC subsequently re-affirmed its verbal report and recommendation by submitting it in writing on April 21, 2003. Respondents insist that the law does not require that the BAC Report be in writing before Comelec can act thereon; therefore, there is allegedly nothing irregular about the Report as well as the en banc Resolution. However, it is obvious that petitioners could have appealed the BACs report and recommendation to the head of the procuring entity (the Comelec chair) only upon their discovery thereof, which at the very earliest would have been on April 21, 2003, when the BAC actually put its report in writing and finally released it. Even then, what would have been the use of protesting/appealing the report to the Comelec chair, when by that time the Commission en banc ( including the chairman himself) had already approved the BAC Report and awarded the Contract to MPC? And even assuming arguendo that petitioners had somehow gotten wind of the verbal BAC report on April 15, 2003 (immediately after the en banc session), at that point the Commission en banc had already given its approval to the BAC Report along with the award to MPC. To put it bluntly , the Comelec en banc itself made it legally impossible for petitioners to avail themselves of the administrative remedy that the Commission is so impiously harping on. There is no doubt that they had not been accorded the opportunity to avail themselves of the process provided under Section 55 of RA 9184, according to which a protest against a decision of the BAC may be filed with the head of the procuring entity . Nemo tenetur ad impossible, [26] to borrow private respondents favorite Latin excuse. [27]
Some Observations on the BAC Report to the Comelec We shall return to this issue of alleged prematurity shortly, but at this interstice, we would just want to put forward a few observations regarding the BAC Report and the Comelec en bancs approval thereof. First , Comelec contends that there was nothing unusual about the fact that the Report submitted by the
BAC came only after the former had already awarded the Contract, because the latter had been asked to render its report and recommendation orally during the Commissions en banc session on April 15, 2003. Accordingly, Comelec supposedly acted upon such oral recommendation and approved the award to MPC on the same day, following which the recommendation was subsequently reduced into writing on April 21, 2003. While not entirely outside the realm of the possible, this interesting and unique spiel does not speak well of the process that Comelec supposedly went through in making a critical decision with respect to a multi-billion-peso contract. We can imagine that anyone else standing in the shoes of the Honorable Commissioners would have been extremely conscious of the overarching need for utter transparency. They would have scrupulously avoided the slightest hint of impropriety, preferring to maintain an exacting regularity in the performance of their duties, instead of trying to break a speed record in the award of multi-billion-peso contracts. After all, between April 15 and April 21 were a mere six (6) days. Could Comelec not have waited out six more days for the written report of the BAC, instead of rushing pell-mell into the arms of MPC? Certainly, respondents never cared to explain the nature of the Commissions dire need to act immediately without awaiting the formal, written BAC Report. In short, the Court finds it difficult to reconcile the uncommon dispatch with which Comelec acted to approve the multi-billion-peso deal, with its claim of having been impelled by only the purest and most noble of motives. At any rate, as will be discussed later on, several other factors combine to lend negative credence to Comelecs tale. Second , without necessarily ascribing any premature malice or premeditation on the part of the Comelec officials involved, it should nevertheless be conceded that this cart-before-the-horse maneuver (awarding of the Contract ahead of the BACs written report) would definitely serve as a clever and effective way of averting and frustrating any impending protest under Section 55. Having made the foregoing observations, we now go back to the question of exhausting administrative remedies. Respondents may not have realized it, but the letter addressed to Chairman Benjamin Abalos Sr. dated May 29, 2003[28] serves to eliminate the prematurity issue as it was an actual written protest against the decision of the poll body to award the Contract. The letter was signed by/for, inter alia, two of herein petitioners: the Information Technology Foundation of the Philippines, represented by its president, Alfredo M. Torres; and Ma. Corazon Akol. Such letter-protest is sufficient compliance with the requirement to exhaust administrative remedies particularly because it hews closely to the procedure outlined in Section 55 of RA 9184. And even without that May 29, 2003 letter-protest, the Court still holds that petitioners need not exhaust administrative remedies in the light of Paat v. Court of Appeals. [29] Paat enumerates the instances when the rule on exhaustion of administrative remedies may be disregarded, as follows: (1) when there is a violation of due process, (2) when the issue involved is purely a legal question, (3) when the administrative action is patently illegal amounting to lack or excess of jurisdiction, (4) when there is estoppel on the part of the administrative agency concerned, (5) when there is irreparable injury, (6) when the respondent is a department secretary whose acts as an alter ego of the President bears the implied and assumed approval of the latter,
(7) when to require exhaustion of administrative remedies would be unreasonable, (8) when it would amount to a nullification of a claim, (9) when the subject matter is a private land in land case proceedings, (10) when the rule does not provide a plain, speedy and adequate remedy, and (11) when there are circumstances indicating the urgency of judicial intervention. [30] The present controversy precisely falls within the exceptions listed as Nos. 7, 10 and 11: (7) when to require exhaustion of administrative remedies would be unreasonable; (10) when the rule does not provide a plain, speedy and adequate remedy, and (11) when there are circumstances indicating the urgency of judicial intervention. As already stated, Comelec itself made the exhaustion of administrative remedies legally impossible or, at the very least, unreasonable. In any event, the peculiar circumstances surrounding the unconventional rendition of the BAC Report and the precipitate awarding of the Contract by the Comelec en banc -- plus the fact that it was racing to have its Contract with MPC implemented in time for the elections in May 2004 (barely four months away) -have combined to bring about the urgent need for judicial intervention, thus prompting this Court to dispense with the procedural exhaustion of administrative remedies in this case.
Main Substantive Issue: Validity of the Award to MPC We come now to the meat of the controversy. Petitioners contend that the award is invalid , since Comelec gravely abused its discretion when it did the following: 1. Awarded the Contract to MPC though it did not even participate in the bidding 2. Allowed MPEI to participate in the bidding despite its failure to meet the mandatory eligibility requirements 3. Issued its Resolution of April 15, 2003 awarding the Contract to MPC despite the issuance by the BAC of its Report, which formed the basis of the assailed Resolution, only on April 21, 2003[31] 4. Awarded the Contract, notwithstanding the fact that during the bidding process, there were violations of the mandatory requirements of RA 8436 as well as those set forth in Comelecs own Request for Proposal on the automated election system 5. Refused to declare a failed bidding and to conduct a re-bidding despite the failure of the bidders to pass the technical tests conducted by the Department of Science and Technology 6. Failed to follow strictly the provisions of RA 8436 in the conduct of the bidding for the automated counting machines After reviewing the slew of pleadings as well as the matters raised during the Oral Argument, the Court deems it sufficient to focus discussion on the following major areas of concern that impinge on the issue of grave abuse of discretion: A. Matters pertaining to the identity, existence and eligibility of MPC as a bidder B. Failure of the automated counting machines (ACMs) to pass the DOST technical tests
C. Remedial measures and re-testings undertaken by Comelec and DOST after the award, and their effect on the present controversy
A. Failure to Establish the Identity, Existence and Eligibility of the Alleged Consortium as a Bidder On the question of the identity and the existence of the real bidder, respondents insist that, contrary to petitioners allegations, the bidder was not Mega Pacific eSolutions, Inc. (MPEI), which was incorporated only on February 27, 2003, or 11 days prior to the bidding itself. Rather, the bidder was Mega Pacific Consortium (MPC), of which MPEI was but a part. As proof thereof, they point to the March 7, 2003 letter of intent to bid, signed by the president of MPEI allegedly for and on behalf of MPC. They also call attention to the official receipt issued to MPC, acknowledging payment for the bidding documents, as proof that it was the consortium that participated in the bidding process. We do not agree. The March 7, 2003 letter, signed by only one signatory -- Willy U. Yu, President, Mega Pacific eSolutions, Inc., (Lead Company/ Proponent) For: Mega Pacific Consortium -- and without any further proof, does not by itself prove the existence of the consortium. It does not show that MPEI or its president have been duly pre-authorized by the other members of the putative consortium to represent them, to bid on their collective behalf and, more important, to commit them jointly and severally to the bid undertakings. The letter is purely self-serving and uncorroborated. Neither does an official receipt issued to MPC, acknowledging payment for the bidding documents, constitute proof that it was the purported consortium that participated in the bidding. Such receipts are issued by cashiers without any legally sufficient inquiry as to the real identity or existence of the supposed payor. To assure itself properly of the due existence (as well as eligibility and qualification) of the putative consortium, Comelecs BAC should have examined the bidding documents submitted on behalf of MPC. They would have easily discovered the following fatal flaws.
Two-Envelope, Two-Stage System As stated earlier in our factual presentation, the public bidding system designed by Comelec under its RFP (Request for Proposal for the Automation of the 2004 Election) mandated the use of a two-envelope, two-stage system. A bidders first envelope (Eligibility Envelope) was meant to establish its eligibility to bid and its qualifications and capacity to perform the contract if its bid was accepted, while the second envelope would be the Bid Envelope itself. The Eligibility Envelope was to contain legal documents such as articles of incorporation, business registrations, licenses and permits, mayors permit, VAT certification, and so forth; technical documents containing documentary evidence to establish the track record of the bidder and its technical and production capabilities to perform the contract; and financial documents , including audited financial statements for the last three years, to establish the bidders financial capacity. In the case of a consortium or joint venture desirous of participating in the bidding, it goes without saying that the Eligibility Envelope would necessarily have to include a copy of the joint venture agreement, the consortium agreement or memorandum of agreement -- or a business plan or some other instrument of similar import -- establishing the due existence, composition and scope of such aggrupation. Otherwise, how
would Comelec know who it was dealing with, and whether these parties are qualified and capable of delivering the products and services being offered for bidding?[32] In the instant case, no such instrument was submitted to Comelec during the bidding process. This fact can be conclusively ascertained by scrutinizing the two-inch thick Eligibility Requirements file submitted by Comelec last October 9, 2003, in partial compliance with this Courts instructions given during the Oral Argument. This file purports to replicate the eligibility documents originally submitted to Comelec by MPEI allegedly on behalf of MPC, in connection with the bidding conducted in March 2003. Included in the file are the incorporation papers and financial statements of the members of the supposed consortium and certain certificates, licenses and permits issued to them. However, there is no sign whatsoever of any joint venture agreement, consortium agreement, memorandum of agreement, or business plan executed among the members of the purported consortium. The only logical conclusion is that no such agreement was ever submitted to the Comelec for its consideration, as part of the bidding process. It thus follows that, prior the award of the Contract, there was no documentary or other basis for Comelec to conclude that a consortium had actually been formed amongst MPEI, SK C&C and WeSolv, along with Election.com and ePLDT. [33] Neither was there anything to indicate the exact relationships between and among these firms; their diverse roles, undertakings and prestations, if any, relative to the prosecution of the project, the extent of their respective investments (if any) in the supposed consortium or in the project; and the precise nature and extent of their respective liabilities with respect to the contract being offered for bidding. And apart from the self-serving letter of March 7, 2003, there was not even any indication that MPEI was the lead company duly authorized to act on behalf of the others. So, it necessarily follows that, during the bidding process, Comelec had no basis at all for determining that the alleged consortium really existed and was eligible and qualified; and that the arrangements among the members were satisfactory and sufficient to ensure delivery on the Contract and to protect the governments interest. Notwithstanding such deficiencies, Comelec still deemed the consortium eligible to participate in the bidding, proceeded to open its Second Envelope, and eventually awarded the bid to it, even though -- per the Comelecs own RFP -- the BAC should have declared the MPC ineligible to bid and returned the Second (Bid) Envelope unopened. Inasmuch as Comelec should not have considered MPEI et al. as comprising a consortium or joint venture, it should not have allowed them to avail themselves of the provision in Section 5.4 (b) (i) of the IRR for RA 6957 (the Build-Operate-Transfer Law), as amended by RA 7718. This provision states in part that a joint venture/consortium proponent shall be evaluated based on the individual or collective experience of the member-firms of the joint venture or consortium and of the contractor(s) that it has engaged for the project. Parenthetically, respondents have uniformly argued that the said IRR of RA 6957, as amended, have suppletory application to the instant case. Hence, had the proponent MPEI been evaluated based solely on its own experience, financial and operational track record or lack thereof, it would surely not have qualified and would have been immediately considered ineligible to bid, as respondents readily admit. At any rate, it is clear that Comelec gravely abused its discretion in arbitrarily failing to observe its own rules, policies and guidelines with respect to the bidding process, thereby negating a fair, honest and competitive bidding.
Commissioners Not Aware of Consortium
In this regard, the Court is beguiled by the statements of Commissioner Florentino Tuason Jr., given in open court during the Oral Argument last October 7, 2003. The good commissioner affirmed that he was aware, of his own personal knowledge , that there had indeed been a written agreement among the consortium members, [34] although it was an internal matter among them, [35] and of the fact that it would be presented by counsel for private respondent. [36] However, under questioning by Chief Justice Hilario G. Davide Jr. and Justice Jose C. Vitug, Commissioner Tuason in effect admitted that, while he was the commissioner-in-charge of Comelecs Legal Department, he had never seen, even up to that late date, the agreement he spoke of . [37] Under further questioning, he was likewise unable to provide any information regarding the amounts invested into the project by several members of the claimed consortium.[38] A short while later, he admitted that the Commission had not taken a look at the agreement (if any).[39] He tried to justify his position by claiming that he was not a member of the BAC. Neither was he the commissioner-in-charge of the Phase II Modernization project (the automated election system); but that, in any case, the BAC and the Phase II Modernization Project Team did look into the aspect of the composition of the consortium. It seems to the Court, though, that even if the BAC or the Phase II Team had taken charge of evaluating the eligibility, qualifications and credentials of the consortium-bidder, still, in all probability, the former would have referred the task to Commissioner Tuason, head of Comelecs Legal Department. That task was the appreciation and evaluation of the legal effects and consequences of the terms, conditions, stipulations and covenants contained in any joint venture agreement, consortium agreement or a similar document -assuming of course that any of these was available at the time. The fact that Commissioner Tuason was barely aware of the situation bespeaks the complete absence of such document, or the utter failure or neglect of the Comelec to examine it -- assuming it was available at all -- at the time the award was made on April 15, 2003. In any event, the Court notes for the record that Commissioner Tuason basically contradicted his statements in open court about there being one written agreement among all the consortium members, when he subsequently referred [40] to the four (4) Memoranda of Agreement (MOAs) executed by them. [41] At this juncture, one might ask: What, then, if there are four MOAs instead of one or none at all? Isnt it enough that there are these corporations coming together to carry out the automation project? Isnt it true, as respondent aver, that nowhere in the RFP issued by Comelec is it required that the members of the joint venture execute a single written agreement to prove the existence of a joint venture. Indeed, the intention to be jointly and severally liable may be evidenced not only by a single joint venture agreement, but also by supplementary documents executed by the parties signifying such intention. What then is the big deal? The problem is not that there are four agreements instead of only one. The problem is that Comelec never bothered to check. It never based its decision on documents or other proof that would concretely establish the existence of the claimed consortium or joint venture or agglomeration. It relied merely on the self-serving representation in an uncorroborated letter signed by only one individual, claiming that his company represented a consortium of several different corporations. It concluded forthwith that a consortium indeed existed, composed of such and such members, and thereafter declared that the entity was eligible to bid. True, copies of financial statements and incorporation papers of the alleged consortium members were submitted. But these papers did not establish the existence of a consortium, as they could have been provided by the companies concerned for purposes other than to prove that they were part of a consortium or joint venture. For instance, the papers may have been intended to show that those companies were each
qualified to be a sub-contractor (and nothing more) in a major project. Those documents did not by themselves support the assumption that a consortium or joint venture existed among the companies. In brief, despite the absence of competent proof as to the existence and eligibility of the alleged consortium (MPC), its capacity to deliver on the Contract, and the members joint and several liability therefor, Comelec nevertheless assumed that such consortium existed and was eligible. It then went ahead and considered the bid of MPC, to which the Contract was eventually awarded, in gross violation of the formers own bidding rules and procedures contained in its RFP. Therein lies Comelecs grave abuse of discretion.
Sufficiency of the Four Agreements Instead of one multilateral agreement executed by, and effective and binding on, all the five consortium members -- as earlier claimed by Commissioner Tuason in open court -- it turns out that what was actually executed were four (4) separate and distinct bilateral Agreements . [42] Obviously, Comelec was furnished copies of these Agreements only after the bidding process had been terminated, as these were not included in the Eligibility Documents. These Agreements are as follows: A Memorandum of Agreement between MPEI and SK C&C A Memorandum of Agreement between MPEI and WeSolv A Teaming Agreement between MPEI and Election.com Ltd. A Teaming Agreement between MPEI and ePLDT. In sum, each of the four different and separate bilateral Agreements is valid and binding only between MPEI and the other contracting party, leaving the other consortium members total strangers thereto. Under this setup, MPEI dealt separately with each of the members, and the latter (WeSolv, SK C&C, Election.com, and ePLDT) in turn had nothing to do with one another, each dealing only with MPEI. Respondents assert that these four Agreements were sufficient for the purpose of enabling the corporations to still qualify (even at that late stage) as a consortium or joint venture, since the first two Agreements had allegedly set forth the joint and several undertakings among the parties, whereas the latter two clarified the parties respective roles with regard to the Project, with MPEI being the independent contractor and Election.com and ePLDT the subcontractors. Additionally, the use of the phrase particular contract in the Comelecs Request for Proposal (RFP), in connection with the joint and several liabilities of companies in a joint venture, is taken by them to mean that all the members of the joint venture need not be solidarily liable for the entire project or joint venture, because it is sufficient that the lead company and the member in charge of a particular contract or aspect of the joint venture agree to be solidarily liable. At this point, it must be stressed most vigorously that the submission of the four bilateral Agreements to Comelec after the end of the bidding process did nothing to eliminate the grave abuse of discretion it had already committed on April 15, 2003.
Deficiencies Have Not Been Cured In any event, it is also claimed that the automation Contract awarded by Comelec incorporates all
documents executed by the consortium members, even if these documents are not referred to therein. The basis of this assertion appears to be the passages from Section 1.4 of the Contract, which is reproduced as follows: All Contract Documents shall form part of the Contract even if they or any one of them is not referred to or mentioned in the Contract as forming a part thereof. Each of the Contract Documents shall be mutually complementary and explanatory of each other such that what is noted in one although not shown in the other shall be considered contained in all, and what is required by any one shall be as binding as if required by all, unless one item is a correction of the other. The intent of the Contract Documents is the proper, satisfactory and timely execution and completion of the Project, in accordance with the Contract Documents. Consequently, all items necessary for the proper and timely execution and completion of the Project shall be deemed included in the Contract. Thus, it is argued that whatever perceived deficiencies there were in the supplementary contracts -those entered into by MPEI and the other members of the consortium as regards their joint and several undertakings -- have been cured. Better still, such deficiencies have supposedly been prevented from arising as a result of the above-quoted provisions, from which it can be immediately established that each of the members of MPC assumes the same joint and several liability as the other members. The foregoing argument is unpersuasive. First , the contract being referred to, entitled The Automated Counting and Canvassing Project Contract, is between Comelec and MPEI , not the alleged consortium, MPC. To repeat, it is MPEI -- not MPC -- that is a party to the Contract. Nowhere in that Contract is there any mention of a consortium or joint venture, of members thereof, much less of joint and several liability . Supposedly executed sometime in May 2003, [43] the Contract bears a notarization date of June 30, 2003, and contains the signature of Willy U. Yu signing as president of MPEI (not for and on behalf of MPC), along with that of the Comelec chair. It provides in Section 3.2 that MPEI (not MPC) is to supply the Equipment and perform the Services under the Contract, in accordance with the appendices thereof; nothing whatsoever is said about any consortium or joint venture or partnership. Second , the portions of Section 1.4 of the Contract reproduced above do not have the effect of curing (much less preventing) deficiencies in the bilateral agreements entered into by MPEI with the other members of the consortium, with respect to their joint and several liabilities. The term Contract Documents, as used in the quoted passages of Section 1.4, has a well-defined meaning and actually refers only to the following documents: The Contract itself along with its appendices The Request for Proposal (also known as Terms of Reference) issued by the Comelec, including the Tender Inquiries and Bid Bulletins The Tender Proposal submitted by MPEI In other words, the term Contract Documents cannot be understood as referring to or including the MOAs and the Teaming Agreements entered into by MPEI with SK C&C, WeSolv, Election.com and ePLDT. This much is very clear and admits of no debate. The attempt to use the provisions of Section 1.4 to shore up the MOAs and the Teaming Agreements is simply unwarranted. Third and last, we fail to see how respondents can arrive at the conclusion that, from the above-quoted provisions, it can be immediately established that each of the members of MPC assumes the same joint and several liability as the other members. Earlier, respondents claimed exactly the opposite -- that the two MOAs (between MPEI and SK C&C, and between MPEI and WeSolv) had set forth the joint and several undertakings among the parties; whereas the two Teaming Agreements clarified the parties respective roles with regard to the Project, with MPEI being the independent contractor and Election.com and ePLDT the subcontractors.
Obviously, given the differences in their relationships, their respective liabilities cannot be the same. Precisely, the very clear terms and stipulations contained in the MOAs and the Teaming Agreements -entered into by MPEI with SK C&C, WeSolv, Election.com and ePLDT -- negate the idea that these members are on a par with one another and are, as such, assuming the same joint and several liability. Moreover, respondents have earlier seized upon the use of the term particular contract in the Comelecs Request for Proposal (RFP), in order to argue that all the members of the joint venture did not need to be solidarily liable for the entire project or joint venture. It was sufficient that the lead company and the member in charge of a particular contract or aspect of the joint venture would agree to be solidarily liable. The glaring lack of consistency leaves us at a loss. Are respondents trying to establish the same joint and solidary liability among all the members or not?
Enforcement of Liabilities Problematic Next, it is also maintained that the automation Contract between Comelec and the MPEI confirms the solidary undertaking of the lead company and the consortium member concerned for each particular Contract, inasmuch as the position of MPEI and anyone else performing the services contemplated under the Contract is described therein as that of an independent contractor . The Court does not see, however, how this conclusion was arrived at. In the first place, the contractual provision being relied upon by respondents is Article 14, Independent Contractors, which states: Nothing contained herein shall be construed as establishing or creating between the COMELEC and MEGA the relationship of employee and employer or principal and agent, it being understood that the position of MEGA and of anyone performing the Services contemplated under this Contract, is that of an independent contractor. Obviously, the intent behind the provision was simply to avoid the creation of an employer-employee or a principal-agent relationship and the complications that it would produce. Hence, the Article states that the role or position of MPEI, or anyone else performing on its behalf, is that of an independent contractor. It is obvious to the Court that respondents are stretching matters too far when they claim that, because of this provision, the Contract in effect confirms the solidary undertaking of the lead company and the consortium member concerned for the particular phase of the project. This assertion is an absolute non sequitur.
Enforcement of Liabilities Under the Civil Code Not Possible In any event, it is claimed that Comelec may still enforce the liability of the consortium members under the Civil Code provisions on partnership , reasoning that MPEI et al. represented themselves as partners and members of MPC for purposes of bidding for the Project. They are, therefore, liable to the Comelec to the extent that the latter relied upon such representation. Their liability as partners is solidary with respect to everything chargeable to the partnership under certain conditions. The Court has two points to make with respect to this argument. First , it must be recalled that SK C&C, WeSolv, Election.com and ePLDT never represented themselves as partners and members of MPC, whether for purposes of bidding or for something else. It was MPEI alone that represented them to be members of a consortium it supposedly headed. Thus, its acts may not necessarily be held against the other members. Second , this argument of the OSG in its Memorandum[44] might possibly apply in the absence of a joint venture agreement or some other writing that discloses the relationship of the members with one another.
But precisely, this case does not deal with a situation in which there is nothing in writing to serve as reference, leaving Comelec to rely on mere representations and therefore justifying a falling back on the rules on partnership. For, again, the terms and stipulations of the MOAs entered into by MPEI with SK C&C and WeSolv, as well as the Teaming Agreements of MPEI with Election.com and ePLDT (copies of which have been furnished the Comelec) are very clear with respect to the extent and the limitations of the firms respective liabilities. In the case of WeSolv and SK C&C, their MOAs state that their liabilities, while joint and several with MPEI, are limited only to the particular areas of work wherein their services are engaged or their products utilized. As for Election.com and ePLDT, their separate Teaming Agreements specifically ascribe to them the role of subcontractor vis--vis MPEI as contractor and, based on the terms of their particular agreements, neither Election.com nor ePLDT is, with MPEI, jointly and severally liable to Comelec . [45] It follows then that in the instant case, there is no justification for anyone, much less Comelec, to resort to the rules on partnership and partners liabilities.
Eligibility of a Consortium Based on the Collective Qualifications of Its Members Respondents declare that, for purposes of assessing the eligibility of the bidder, the members of MPC should be evaluated on a collective basis. Therefore, they contend, the failure of MPEI to submit financial statements (on account of its recent incorporation) should not by itself disqualify MPC, since the other members of the consortium could meet the criteria set out in the RFP. Thus, according to respondents , the collective nature of the undertaking of the members of MPC, their contribution of assets and sharing of risks, and the community of their interest in the performance of the Contract lead to these reasonable conclusions: (1) that their collective qualifications should be the basis for evaluating their eligibility; (2) that the sheer enormity of the project renders it improbable to expect any single entity to be able to comply with all the eligibility requirements and undertake the project by itself; and (3) that, as argued by the OSG, the RFP allows bids from manufacturers, suppliers and/or distributors that have formed themselves into a joint venture, in recognition of the virtual impossibility of a single entitys ability to respond to the Invitation to Bid. Additionally, argues the Comelec, the Implementing Rules and Regulations of RA 6957 (the BuildOperate-Transfer Law) as amended by RA 7718 would be applicable, as proponents of BOT projects usually form joint ventures or consortiums. Under the IRR, a joint venture/consortium proponent shall be evaluated based on the individual or the collective experience of the member-firms of the joint venture/consortium and of the contractors the proponent has engaged for the project. Unfortunately, this argument seems to assume that the collective nature of the undertaking of the members of MPC, their contribution of assets and sharing of risks, and the community of their interest in the performance of the Contract entitle MPC to be treated as a joint venture or consortium; and to be evaluated accordingly on the basis of the members collective qualifications when, in fact, the evidence before the Court suggest otherwise. This Court in Kilosbayan v. Guingona [46] defined joint venture as an association of persons or companies jointly undertaking some commercial enterprise; generally, all contribute assets and share risks. It requires a community of interest in the performance of the subject matter, a right to direct and govern the policy in connection therewith, and [a] duty, which may be altered by agreement to share both in profit and losses. Going back to the instant case, it should be recalled that the automation Contract with Comelec was not
executed by the consortium MPC -- or by MPEI for and on behalf of MPC -- but by MPEI, period . The said Contract contains no mention whatsoever of any consortium or members thereof. This fact alone seems to contradict all the suppositions about a joint undertaking that would normally apply to a joint venture or consortium: that it is a commercial enterprise involving a community of interest, a sharing of risks, profits and losses, and so on. Now let us consider the four bilateral Agreements, starting with the Memorandum of Agreement between MPEI and WeSolv Open Computing, Inc., dated March 5, 2003. The body of the MOA consists of just seven (7) short paragraphs that would easily fit in one page. It reads as follows: 1. The parties agree to cooperate in successfully implementing the Project in the substance and form as may be most beneficial to both parties and other subcontractors involved in the Project. 2. Mega Pacific shall be responsible for any contract negotiations and signing with the COMELEC and, subject to the latters approval, agrees to give WeSolv an opportunity to be present at meetings with the COMELEC concerning WeSolvs portion of the Project. 3. WeSolv shall be jointly and severally liable with Mega Pacific only for the particular products and/or services supplied by the former for the Project. 4. Each party shall bear its own costs and expenses relative to this agreement unless otherwise agreed upon by the parties. 5. The parties undertake to do all acts and such other things incidental to, necessary or desirable or the attainment of the objectives and purposes of this Agreement. 6. In the event that the parties fail to agree on the terms and conditions of the supply of the products and services including but not limited to the scope of the products and services to be supplied and payment terms, WeSolv shall cease to be bound by its obligations stated in the aforementioned paragraphs. 7. Any dispute arising from this Agreement shall be settled amicably by the parties whenever possible. Should the parties be unable to do so, the parties hereby agree to settle their dispute through arbitration in accordance with the existing laws of the Republic of the Philippines. (Underscoring supplied.) Even shorter is the Memorandum of Agreement between MPEI and SK C&C Co. Ltd., dated March 9, 2003, the body of which consists of only six (6) paragraphs, which we quote: 1. All parties agree to cooperate in achieving the Consortiums objective of successfully implementing the Project in the substance and form as may be most beneficial to the Consortium members and in accordance w/ the demand of the RFP. 2. Mega Pacific shall have full powers and authority to represent the Consortium with the Comelec, and to enter and sign, for and in behalf of its members any and all agreement/s which maybe required in the implementation of the Project. 3. Each of the individual members of the Consortium shall be jointly and severally liable with the Lead Firm for the particular products and/or services supplied by such individual member for the project, in accordance with their respective undertaking or sphere of responsibility. 4. Each party shall bear its own costs and expenses relative to this agreement unless otherwise agreed upon by the parties. 5. The parties undertake to do all acts and such other things incidental to, necessary or desirable for the attainment of the objectives and purposes of this Agreement.
6. Any dispute arising from this Agreement shall be settled amicably by the parties whenever possible. Should the parties be unable to do so, the parties hereby agree to settle their dispute through arbitration in accordance with the existing laws of the Republic of the Philippines. (Underscoring supplied.) It will be noted that the two Agreements quoted above are very similar in wording. Neither of them contains any specifics or details as to the exact nature and scope of the parties respective undertakings, performances and deliverables under the Agreement with respect to the automation project. Likewise, the two Agreements are quite bereft of pesos-and-centavos data as to the amount of investments each party contributes, its respective share in the revenues and/or profit from the Contract with Comelec, and so forth -all of which are normal for agreements of this nature. Yet, according to public and private respondents, the participation of MPEI, WeSolv and SK C&C comprises fully 90 percent of the entire undertaking with respect to the election automation project, which is worth about P1.3 billion. As for Election.com and ePLDT, the separate Teaming Agreements they entered into with MPEI for the remaining 10 percent of the entire project undertaking are ironically much longer and more detailed than the MOAs discussed earlier. Although specifically ascribing to them the role of subcontractor vis--vis MPEI as contractor, these Agreements are, however, completely devoid of any pricing data or payment terms. Even the appended Schedules supposedly containing prices of goods and services are shorn of any price data. Again, as mentioned earlier, based on the terms of their particular Agreements, neither Election.com nor ePLDT -- with MPEI -- is jointly and severally liable to Comelec. It is difficult to imagine how these bare Agreements -- especially the first two -- could be implemented in practice; and how a dispute between the parties or a claim by Comelec against them, for instance, could be resolved without lengthy and debilitating litigations. Absent any clear-cut statement as to the exact nature and scope of the parties respective undertakings, commitments, deliverables and covenants, one party or another can easily dodge its obligation and deny or contest its liability under the Agreement; or claim that it is the other party that should have delivered but failed to. Likewise, in the absence of definite indicators as to the amount of investments to be contributed by each party, disbursements for expenses, the parties respective shares in the profits and the like, it seems to the Court that this situation could readily give rise to all kinds of misunderstandings and disagreements over money matters. Under such a scenario, it will be extremely difficult for Comelec to enforce the supposed joint and several liabilities of the members of the consortium. The Court is not even mentioning the possibility of a situation arising from a failure of WeSolv and MPEI to agree on the scope, the terms and the conditions for the supply of the products and services under the Agreement. In that situation, by virtue of paragraph 6 of its MOA, WeSolv would perforce cease to be bound by its obligations -- including its joint and solidary liability with MPEI under the MOA -- and could forthwith disengage from the project. Effectively, WeSolv could at any time unilaterally exit from its MOA with MPEI by simply failing to agree. Where would that outcome leave MPEI and Comelec? To the Court, this strange and beguiling arrangement of MPEI with the other companies does not qualify them to be treated as a consortium or joint venture, at least of the type that government agencies like the Comelec should be dealing with. With more reason is it unable to agree to the proposal to evaluate the members of MPC on a collective basis. In any event, the MPC members claim to be a joint venture/consortium; and respondents have consistently been arguing that the IRR for RA 6957, as amended, should be applied to the instant case in order to allow a collective evaluation of consortium members. Surprisingly, considering these facts, respondents have not deemed it necessary for MPC members to comply with Section 5.4 (a) (iii) of the IRR for RA 6957 as amended. According to the aforementioned provision, if the project proponent is a joint venture or consortium, the members or participants thereof are required to submit a sworn statement that, if awarded the contract, they
shall bind themselves to be jointly, severally and solidarily liable for the project proponents obligations thereunder. This provision was supposed to mirror Section 5 of RA 6957, as amended, which states: In all cases, a consortium that participates in a bid must present proof that the members of the consortium have bound themselves jointly and severally to assume responsibility for any project. The withdrawal of any member of the consortium prior to the implementation of the project could be a ground for the cancellation of the contract. The Court has certainly not seen any joint and several undertaking by the MPC members that even approximates the tenor of that which is described above. We fail to see why respondents should invoke the IRR if it is for their benefit, but refuse to comply with it otherwise.
B. DOST Technical Tests Flunked by the Automated Counting Machines Let us now move to the second subtopic, which deals with the substantive issue: the ACMs failure to pass the tests of the Department of Science and Technology (DOST). After respondent consortium and the other bidder, TIM, had submitted their respective bids on March 10, 2003, the Comelecs BAC -- through its Technical Working Group (TWG) and the DOST -- evaluated their technical proposals. Requirements that were highly technical in nature and that required the use of certain equipment in the evaluation process were referred to the DOST for testing. The Department reported thus:
TEST RESULTS MATRIX [47] [Technical Evaluation of Automated Counting Machine] KEY REQUIREMENTS [QUESTIONS] 1. Does the machine have an accuracy rating of at least 99.995 percent At COLD environmental condition At NORMAL environmental conditions At HARSH environmental conditions 2. Accurately records and reports the date and time of the start and end of counting of ballots per precinct? 3. Prints election returns without any loss of date MEGA-PACIFIC CONSORTIUM YES NO TOTAL INFORMATION MANAGEMENT YES NO
during generation of such reports? 4. Uninterruptible back-up power system, that will engage immediately to allow operation of at least 10 minutes after outage, power surge or abnormal electrical occurrences?
Note: This particular requirement needs further verification
5. Machine reads two-sided ballots in one pass?
6. Machine can detect previously counted ballots and prevent previously counted ballots from being counted more than once? 7. Stores results of counted votes by precinct in external (removable) storage device?
Note: This particular requirement needs further verification Note: This particular requirement needs further verification Note: This particular requirement needs further verification
8. Data stored in external media is encrypted?
9. Physical key or similar device allows, limits, or restricts operation of the machine?
10. CPU speed is at least 400mHz?
11. Port to allow use of dotmatrix printers? 12. Generates printouts of the election returns in a format specified by the
COMELEC? Generates printouts In format specified by COMELEC 13. Prints election returns without any loss of data during generation of such report? 14. Generates an audit trail of the counting machine, both hard copy and soft copy? Hard copy Soft copy 15. Does the City/Municipal Canvassing System consolidate results from all precincts within it using the encrypted soft copy of the data generated by the counting machine and stored on the removable data storage device? 16. Does the City/Municipal Canvassing System consolidate results from all precincts within it using the encrypted soft copy of the data generated by the counting machine and transmitted through an electronic transmission media? 17. Does the system output a Zero City/Municipal Canvass Report, which is
Note: This particular requirement needs further verification Note: This particular requirement needs further verification
printed on election day prior to the conduct of the actual canvass operation, that shows that all totals for all the votes for all the candidates and other information, are indeed zero or null? 18. Does the system consolidate results from all precincts in the city/municipality using the data storage device coming from the counting machine?
Note: This particular requirement needs further verification Note: This particular requirement needs further verification Note: This particular requirement needs further verification
19. Is the machine 100% accurate?
20. Is the Program able to detect previously downloaded precinct results and prevent these from being inputted again into the System? 21. The System is able to print the specified reports and the audit trail without any loss of data during generation of the abovementioned reports? Prints specified reports Audit Trail 22. Can the result of the city/municipal consolidation be stored in a data storage device?
Note: This particular requirement needs further verification Note: This particular requirement needs further
23. Does the system consolidate results from all precincts in the provincial/district/ national using the data storage device from different levels of consolidation? 24. Is the system 100% accurate? 25. Is the Program able to detect previously downloaded precinct results and prevent these from being inputted again into the System?
verification Note: This particular requirement needs further verification Note: This particular requirement needs further verification Note: This particular requirement needs further verification
26. The System is able to print the specified reports and the audit trail without any loss of data during generation of the abovementioned reports? Prints specified reports Audit Trail
27. Can the results of the provincial/district/national consolidation be stored in a data storage device?
According to respondents, it was only after the TWG and the DOST had conducted their separate tests and submitted their respective reports that the BAC, on the basis of these reports formulated its comments/recommendations on the bids of the consortium and TIM. The BAC, in its Report dated April 21, 2003, recommended that the Phase II project involving the acquisition of automated counting machines be awarded to MPEI. It said: After incisive analysis of the technical reports of the DOST and the Technical Working Group for Phase II Automated Counting Machine, the BAC considers adaptability to advances in modern technology to ensure an effective and efficient method, as well as the security and integrity of the system. The results of the evaluation conducted by the TWG and that of the DOST (14 April 2003 report), would show the apparent advantage of Mega-Pacific over the other competitor, TIM. The BAC further noted that both Mega-Pacific and TIM obtained some failed marks in the technical evaluation. In general, the failed marks of Total Information Management as enumerated above affect the counting machine itself which are material in nature, constituting non-compliance to the RFP. On the other hand, the failed marks of MegaPacific are mere formalities on certain documentary requirements which the BAC may waive as clearly indicated in the Invitation to Bid. In the DOST test, TIM obtained 12 failed marks and mostly attributed to the counting machine itself as stated earlier. These are requirements of the RFP and therefore the BAC cannot disregard the same. Mega-Pacific failed in 8 items however these are mostly on the software which can be corrected by reprogramming the software and therefore can be readily corrected. The BAC verbally inquired from DOST on the status of the retest of the counting machines of the TIM and was informed that the report will be forthcoming after the holy week. The BAC was informed that the retest is on a different parameters theyre being two different machines being tested. One purposely to test if previously read ballots will be read again and the other for the other features such as two sided ballots. The said machine and the software therefore may not be considered the same machine and program as submitted in the Technical proposal and therefore may be considered an enhancement of the original proposal. Advance information relayed to the BAC as of 1:40 PM of 15 April 2003 by Executive Director Ronaldo T. Viloria of DOST is that the result of the test in the two counting machines of TIM contains substantial errors that may lead to the failure of these machines based on the specific items of the RFP that DOST has to certify.
OPENING OF FINANCIAL BIDS The BAC on 15 April 2003, after notifying the concerned bidders opened the financial bids in their presence and the results were as follows: Mega-Pacific: Option 1 Outright purchase: Bid Price of Php1,248,949,088.00 Option 2 Lease option:
70% Down payment of cost of hardware or Php642,755,757.07 Remainder payable over 50 months or a total of Php642,755,757.07 Discount rate of 15% p.a. or 1.2532% per month. Total Number of Automated Counting Machine 1,769 ACMs (Nationwide) TIM:
Total Bid Price Php1,297,860,560.00

Total Number of Automated Counting Machine 2,272 ACMs (Mindanao and NCR only)
Premises considered, it appears that the bid of Mega Pacific is the lowest calculated responsive bid, and therefore, the Bids and Awards Committee (BAC) recommends that the Phase II project re Automated Counting Machine be awarded to Mega Pacific eSolutions, Inc. [48]
The BAC, however, also stated on page 4 of its Report: Based on the 14 April 2003 report (Table 6) of the DOST, it appears that both Mega-Pacific and TIM (Total Information Management Corporation) failed to meet some of the requirements. Below is a comparative presentation of the requirements wherein MegaPacific or TIM or both of them failed: x x x. What followed was a list of key requirements, referring to technical requirements, and an indication of which of the two bidders had failed to meet them.
Failure to Meet the Required Accuracy Rating The first of the key requirements was that the counting machines were to have an accuracy rating of at least 99.9995 percent. The BAC Report indicates that both Mega Pacific and TIM failed to meet this standard. The key requirement of accuracy rating happens to be part and parcel of the Comelecs Request for Proposal (RFP). The RFP, on page 26, even states that the ballot counting machines and ballot counting software must have an accuracy rating of 99.9995% (not merely 99.995%) or better as certified by a reliable independent testing agency. When questioned on this matter during the Oral Argument, Commissioner Borra tried to wash his hands by claiming that the required accuracy rating of 99.9995 percent had been set by a private sector group in tandem with Comelec. He added that the Commission had merely adopted the accuracy rating as part of the groups recommended bid requirements, which it had not bothered to amend even after being advised by DOST that such standard was unachievable. This excuse, however, does not in any way lessen Comelecs responsibility to adhere to its own published bidding rules, as well as to see to it that the consortium indeed meets the accuracy standard. Whichever accuracy rating is the right standard -- whether 99.995 or 99.9995 percent -- the fact remains that the machines of the so-called consortium failed to even reach the lesser of the two. On this basis alone, it ought to have been disqualified and its bid rejected outright. At this point, the Court stresses that the essence of public bidding is violated by the practice of requiring very high standards or unrealistic specifications that cannot be met -- like the 99.9995 percent accuracy rating in this case -- only to water them down after the bid has been award. Such scheme, which discourages the entry of prospective bona fide bidders, is in fact a sure indication of fraud in the bidding, designed to eliminate fair competition. Certainly, if no bidder meets the mandatory requirements, standards or specifications, then no award should be made and a failed bidding declared.
Failure of Software to Detect Previously Downloaded Data Furthermore, on page 6 of the BAC Report, it appears that the consortium as well as TIM failed to meet another key requirement -- for the counting machines software program to be able to detect previously downloaded precinct results and to prevent these from being entered again into the counting machine. This same deficiency on the part of both bidders reappears on page 7 of the BAC Report, as a result of the recurrence of their failure to meet the said key requirement. That the ability to detect previously downloaded data at different canvassing or consolidation levels is deemed of utmost importance can be seen from the fact that it is repeated three times in the RFP. On page 30 thereof, we find the requirement that the city/municipal canvassing system software must be able to detect previously downloaded precinct results and prevent these from being inputted again into the system. Again, on page 32 of the RFP, we read that the provincial/district canvassing system software must be able to detect previously downloaded city/municipal results and prevent these from being inputted again into the system. And once more, on page 35 of the RFP, we find the requirement that the national canvassing system software must be able to detect previously downloaded provincial/district results and prevent these from being inputted again into the system. Once again, though, Comelec chose to ignore this crucial deficiency, which should have been a cause for the gravest concern. Come May 2004, unscrupulous persons may take advantage of and exploit such deficiency by repeatedly downloading and feeding into the computers results favorable to a particular candidate or candidates. We are thus confronted with the grim prospect of election fraud on a massive scale by means of just a few key strokes. The marvels and woes of the electronic age!
Inability to Print the Audit Trail But that grim prospect is not all. The BAC Report, on pages 6 and 7, indicate that the ACMs of both bidders were unable to print the audit trail without any loss of data. In the case of MPC, the audit trail system was not yet incorporated into its ACMs. This particular deficiency is significant, not only to this bidding but to the cause of free and credible elections. The purpose of requiring audit trails is to enable Comelec to trace and verify the identities of the ACM operators responsible for data entry and downloading, as well as the times when the various data were downloaded into the canvassing system, in order to forestall fraud and to identify the perpetrators. Thus, the RFP on page 27 states that the ballot counting machines and ballot counting software must print an audit trail of all machine operations for documentation and verification purposes. Furthermore, the audit trail must be stored on the internal storage device and be available on demand for future printing and verifying. On pages 30-31, the RFP also requires that the city/municipal canvassing system software be able to print an audit trail of the canvassing operations, including therein such data as the date and time the canvassing program was started, the log-in of the authorized users (the identity of the machine operators), the date and time the canvass data were downloaded into the canvassing system, and so on and so forth. On page 33 of the RFP, we find the same audit trail requirement with respect to the provincial/district canvassing system software ; and again on pages 35-36 thereof, the same audit trail requirement with respect to the national canvassing system software . That this requirement for printing audit trails is not to be lightly brushed aside by the BAC or Comelec itself as a mere formality or technicality can be readily gleaned from the provisions of Section 7 of RA 8436, which authorizes the Commission to use an automated system for elections.
The said provision which respondents have quoted several times, provides that ACMs are to possess certain features divided into two classes: those that the statute itself considers mandatory and other features or capabilities that the law deems optional. Among those considered mandatory are provisions for audit trails! Section 7 reads as follows: The System shall contain the following features: (a) use of appropriate ballots; (b) stand-alone machine which can count votes and an automated system which can consolidate the results immediately; (c) with provisions for audit trails ; (d) minimum human intervention; and (e) adequate safeguard/security measures. (Italics and emphases supplied.) In brief, respondents cannot deny that the provision requiring audit trails is indeed mandatory, considering the wording of Section 7 of RA 8436. Neither can Respondent Comelec deny that it has relied on the BAC Report, which indicates that the machines or the software was deficient in that respect. And yet, the Commission simply disregarded this shortcoming and awarded the Contract to private respondent, thereby violating the very law it was supposed to implement.
C. Inadequacy of Post Facto Remedial Measures Respondents argue that the deficiencies relating to the detection of previously downloaded data, as well as provisions for audit trails, are mere shortcomings or minor deficiencies in software or programming, which can be rectified. Perhaps Comelec simply relied upon the BAC Report, which states on page 8 thereof that Mega Pacific failed in 8 items[;] however these are mostly on the software which can be corrected by reprogramming x x x and therefore can be readily corrected. The undersigned ponentes questions, some of which were addressed to Commissioner Borra during the Oral Argument, remain unanswered to this day. First of all, who made the determination that the eight fail marks of Mega Pacific were on account of the software -- was it DOST or TWG? How can we be sure these failures were not the results of machine defects? How was it determined that the software could actually be re-programmed and thereby rectified? Did a qualified technical expert read and analyze the source code [49] for the programs and conclude that these could be saved and remedied? (Such determination cannot be done by any other means save by the examination and analysis of the source code.) Who was this qualified technical expert? When did he carry out the study? Did he prepare a written report on his findings? Or did the Comelec just make a wild guess? It does not follow that all defects in software programs can be rectified, and the programs saved. In the information technology sector, it is common knowledge that there are many badly written programs, with significant programming errors written into them; hence it does not make economic sense to try to correct the programs; instead, programmers simply abandon them and just start from scratch. Theres no telling if any of these programs is unrectifiable, unless a qualified programmer reads the source code. And if indeed a qualified expert reviewed the source code, did he also determine how much work would be needed to rectify the programs? And how much time and money would be spent for that effort? Who would carry out the work? After the rectification process, who would ascertain and how would it be ascertained that the programs have indeed been properly rectified, and that they would work properly thereafter? And of course, the most important question to ask: could the rectification be done in time for the elections in 2004? Clearly, none of the respondents bothered to think the matter through. Comelec simply took the word of the BAC as gospel truth, without even bothering to inquire from DOST whether it was true that the deficiencies noted could possibly be remedied by re-programming the software. Apparently, Comelec did not care about the software, but focused only on purchasing the machines.
What really adds to the Courts dismay is the admission made by Commissioner Borra during the Oral Argument that the software currently being used by Comelec was merely the demo version, inasmuch as the final version that would actually be used in the elections was still being developed and had not yet been finalized. It is not clear when the final version of the software would be ready for testing and deployment. It seems to the Court that Comelec is just keeping its fingers crossed and hoping the final product would work. Is there a Plan B in case it does not? Who knows? But all these software programs are part and parcel of the bidding and the Contract awarded to the Consortium. Why is it that the machines are already being brought in and paid for, when there is as yet no way of knowing if the final version of the software would be able to run them properly, as well as canvass and consolidate the results in the manner required? The counting machines, as well as the canvassing system, will never work properly without the correct software programs. There is an old adage that is still valid to this day: Garbage in, garbage out. No matter how powerful, advanced and sophisticated the computers and the servers are, if the software being utilized is defective or has been compromised, the results will be no better than garbage. And to think that what is at stake here is the 2004 national elections -- the very basis of our democratic life.
Correction of Defects? To their Memorandum, public respondents proudly appended 19 Certifications issued by DOST declaring that some 285 counting machines had been tested and had passed the acceptance testing conducted by the Department on October 8-18, 2003. Among those tested were some machines that had failed previous tests, but had undergone adjustments and thus passed re-testing. Unfortunately, the Certifications from DOST fail to divulge in what manner and by what standards or criteria the condition, performance and/or readiness of the machines were re-evaluated and re-appraised and thereafter given the passing mark. Apart from that fact, the remedial efforts of respondents were, not surprisingly, apparently focused again on the machines -- the hardware. Nothing was said or done about the software -- the deficiencies as to detection and prevention of downloading and entering previously downloaded data, as well as the capability to print an audit trail. No matter how many times the machines were tested and re-tested, if nothing was done about the programming defects and deficiencies, the same danger of massive electoral fraud remains. As anyone who has a modicum of knowledge of computers would say, Thats elementary! And only last December 5, 2003, an Inq7.net news report quoted the Comelec chair as saying that the new automated poll system would be used nationwide in May 2004, even as the software for the system remained unfinished. It also reported that a certain Titus Manuel of the Philippine Computer Society, which was helping Comelec test the hardware and software , said that the software for the counting still had to be submitted on December 15, while the software for the canvassing was due in early January. Even as Comelec continues making payments for the ACMs, we keep asking ourselves: who is going to ensure that the software would be tested and would work properly? At any rate, the re-testing of the machines and/or the 100 percent testing of all machines (testing of every single unit) would not serve to eradicate the grave abuse of discretion already committed by Comelec when it awarded the Contract on April 15, 2003, despite the obvious and admitted flaws in the bidding process, the failure of the winning bidder to qualify, and the inability of the ACMs and the intended software to meet the bid requirements and rules.
Comelecs Latest
Assurances Are Unpersuasive Even the latest pleadings filed by Comelec do not serve to allay our apprehensions. They merely affirm and compound the serious violations of law and gravely abusive acts it has committed. Let us examine them. The Resolution issued by this Court on December 9, 2003 required respondents to inform it as to the number of ACMs delivered and paid for, as well as the total payment made to date for the purchase thereof. They were likewise instructed to submit a certification from the DOST attesting to the number of ACMs tested, the number found to be defective; and whether the reprogrammed software has been tested and found to have complied with the requirements under Republic Act No. 8436. [50] In its Partial Compliance and Manifestation dated December 29, 2003, Comelec informed the Court that 1,991 ACMs had already been delivered to the Commission as of that date. It further certified that it had already paid the supplier the sum of P849,167,697.41, which corresponded to 1,973 ACM units that had passed the acceptance testing procedures conducted by the MIRDC-DOST [51] and which had therefore been accepted by the poll body. In the same submission, for the very first time, Comelec also disclosed to the Court the following: The Automated Counting and Canvassing Project involves not only the manufacturing of the ACM hardware but also the development of three (3) types of software, which are intended for use in the following: 1. Evaluation of Technical Bids 2. Testing and Acceptance Procedures 3. Election Day Use.
Purchase of the First Type of Software Without Evaluation In other words, the first type of software was to be developed solely for the purpose of enabling the evaluation of the bidders technical bid. Comelec explained thus: In addition to the presentation of the ACM hardware, the bidders were required to develop a base software program that will enable the ACM to function properly. Since the software program utilized during the evaluation of bids is not the actual software program to be employed on election day, there being two (2) other types of software program that will still have to be developed and thoroughly tested prior to actual election day use, defects in the base software that can be readily corrected by reprogramming are considered minor in nature, and may therefore be waived. In short, Comelec claims that it evaluated the bids and made the decision to award the Contract to the winning bidder partly on the basis of the operation of the ACMs running a base software. That software was therefore nothing but a sample or demo software, which would not be the actual one that would be used on election day. Keeping in mind that the Contract involves the acquisition of not just the ACMs or the hardware, but also the software that would run them, it is now even clearer that the Contract was awarded without Comelec having seen, much less evaluated, the final product -- the software that would finally be utilized come election day. (Not even the near-final product, for that matter). What then was the point of conducting the bidding, when the software that was the subject of the Contract was still to be created and could conceivably undergo innumerable changes before being
considered as being in final form? And that is not all!
No Explanation for Lapses in the Second Type of Software The second phase, allegedly involving the second type of software, is simply denominated Testing and Acceptance Procedures. As best as we can construe, Comelec is claiming that this second type of software is also to be developed and delivered by the supplier in connection with the testing and acceptance phase of the acquisition process. The previous pleadings, though -- including the DOST reports submitted to this Court -- have not heretofore mentioned any statement, allegation or representation to the effect that a particular set of software was to be developed and/or delivered by the supplier in connection with the testing and acceptance of delivered ACMs. What the records do show is that the imported ACMs were subjected to the testing and acceptance process conducted by the DOST. Since the initial batch delivered included a high percentage of machines that had failed the tests, Comelec asked the DOST to conduct a 100 percent testing; that is, to test every single one of the ACMs delivered. Among the machines tested on October 8 to 18, 2003, were some units that had failed previous tests but had subsequently been re-tested and had passed. To repeat, however, until now, there has never been any mention of a second set or type of software pertaining to the testing and acceptance process. In any event, apart from making that misplaced and uncorroborated claim, Comelec in the same submission also professes (in response to the concerns expressed by this Court) that the reprogrammed software has been tested and found to have complied with the requirements of RA 8436. It reasoned thus: Since the software program is an inherent element in the automated counting system, the certification issued by the MIRDC-DOST that one thousand nine hundred seventy-three (1,973) units passed the acceptance test procedures is an official recognition by the MIRDC-DOST that the software component of the automated election system, which has been reprogrammed to comply with the provisions of Republic Act No. 8436 as prescribed in the Ad Hoc Technical Evaluation Committees ACM Testing and Acceptance Manual, has passed the MIRDC-DOST tests. The facts do not support this sweeping statement of Comelec. A scrutiny of the MIRDC-DOST letter dated December 15, 2003, [52] which it relied upon, does not justify its grand conclusion. For claritys sake, we quote in full the letter-certification, as follows: 15 December 2003 HON. RESURRECCION Z. BORRA Commissioner-in-Charge Phase II, Modernization Project Commission on Elections Intramuros, Manila Attention: Atty. Jose M. Tolentino, Jr. Project Director Dear Commissioner Borra: We are pleased to submit 11 DOST Test Certifications representing 11 lots and covering 158 units of automated counting machines (ACMs) that we have tested from 02-12 December 2003. To date, we have tested all the 1,991 units of ACMs, broken down as follow: (sic)
1st batch - 30 units 4th batch - 438 units 2nd batch - 288 units 5th batch - 438 units 3rd batch - 414 units 6th batch - 383 units It should be noted that a total of 18 units have failed the test. Out of these 18 units, only one (1) unit has failed the retest. Thank you and we hope you will find everything in order. Very truly yours, ROLANDO T. VILORIA, CESO III Executive Director cum Chairman, DOST-Technical Evaluation Committee Even a cursory glance at the foregoing letter shows that it is completely bereft of anything that would remotely support Comelecs contention that the software component of the automated election system x x x has been reprogrammed to comply with RA 8436, and has passed the MIRDC-DOST tests. There is no mention at all of any software reprogramming. If the MIRDC-DOST had indeed undertaken the supposed reprogramming and the process turned out to be successful, that agency would have proudly trumpeted its singular achievement. How Comelec came to believe that such reprogramming had been undertaken is unclear. In any event, the Commission is not forthright and candid with the factual details. If reprogramming has been done, who performed it and when? What exactly did the process involve? How can we be assured that it was properly performed? Since the facts attendant to the alleged reprogramming are still shrouded in mystery, the Court cannot give any weight to Comelecs bare allegations. The fact that a total of 1,973 of the machines has ultimately passed the MIRDC-DOST tests does not by itself serve as an endorsement of the soundness of the software program, much less as a proof that it has been reprogrammed. In the first place, nothing on record shows that the tests and re-tests conducted on the machines were intended to address the serious deficiencies noted earlier. As a matter of fact, the MIRDCDOST letter does not even indicate what kinds of tests or re-tests were conducted, their exact nature and scope, and the specific objectives thereof. [53] The absence of relevant supporting documents, combined with the utter vagueness of the letter, certainly fails to inspire belief or to justify the expansive confidence displayed by Comelec. In any event, it goes without saying that remedial measures such as the alleged reprogramming cannot in any way mitigate the grave abuse of discretion already committed as early as April 15, 2003.
Rationale of Public Bidding Negated by the Third Type of Software Respondent Comelec tries to assuage this Courts anxiety in these words: The reprogrammed software that has already passed the requirements of Republic Act No. 8436 during the MIRDC-DOST testing and acceptance procedures will require further customization since the following additional elements, among other things, will have to be considered before the final software can be used on election day: 1. Final Certified List of Candidates x x x 2. Project of Precincts x x x 3. Official Ballot Design and Security Features x x x 4. Encryption, digital certificates and digital signatures x x x. The certified list of candidates for national elective positions will be finalized on or before 23 January 2004 while the final list of projects of precincts will
be prepared also on the same date. Once all the above elements are incorporated in the software program, the Test Certification Group created by the Ad Hoc Technical Evaluation Committee will conduct meticulous testing of the final software before the same can be used on election day. In addition to the testing to be conducted by said Test Certification Group, the Comelec will conduct mock elections in selected areas nationwide not only for purposes of public information but also to further test the final election day program. Public respondent Comelec, therefore, requests that it be given up to 16 February 2004 to comply with this requirement. The foregoing passage shows the imprudent approach adopted by Comelec in the bidding and acquisition process. The Commission says that before the software can be utilized on election day, it will require customization through addition of data -- like the list of candidates, project of precincts, and so on. And inasmuch as such data will become available only in January 2004 anyway, there is therefore no perceived need on Comelecs part to rush the supplier into producing the final (or near-final) version of the software before that time. In any case, Comelec argues that the software needed for the electoral exercise can be continuously developed, tested, adjusted and perfected, practically all the way up to election day, at the same time that the Commission is undertaking all the other distinct and diverse activities pertinent to the elections. Given such a frame of mind, it is no wonder that Comelec paid little attention to the counting and canvassing software during the entire bidding process, which took place in February-March 2003. Granted that the software was defective, could not detect and prevent the re-use of previously downloaded data or produce the audit trail -- aside from its other shortcomings -- nevertheless, all those deficiencies could still be corrected down the road. At any rate, the software used for bidding purposes would not be the same one that will be used on election day, so why pay any attention to its defects? Or to the Comelecs own bidding rules for that matter? Clearly, such jumbled ratiocinations completely negate the rationale underlying the bidding process mandated by law. At the very outset, the Court has explained that Comelec flagrantly violated the public policy on public biddings (1) by allowing MPC/MPEI to participate in the bidding even though it was not qualified to do so; and (2) by eventually awarding the Contract to MPC/MPEI. Now, with the latest explanation given by Comelec, it is clear that the Commission further desecrated the law on public bidding by permitting the winning bidder to change and alter the subject of the Contract (the software), in effect allowing a substantive amendment without public bidding. This stance is contrary to settled jurisprudence requiring the strict application of pertinent rules, regulations and guidelines for public bidding for the purpose of placing each bidder, actual or potential, on the same footing . The essence of public bidding is, after all, an opportunity for fair competition, and a fair basis for the precise comparison of bids. In common parlance, public bidding aims to level the playing field. That means each bidder must bid under the same conditions; and be subject to the same guidelines, requirements and limitations, so that the best offer or lowest bid may be determined, all other things being equal . Thus, it is contrary to the very concept of public bidding to permit a variance between the conditions under which bids are invited and those under which proposals are submitted and approved; or, as in this case, the conditions under which the bid is won and those under which the awarded Contract will be complied with. The substantive amendment of the contract bidded out, without any public bidding -- after the bidding process had been concluded -- is violative of the public policy on public biddings, as well as the spirit and intent of RA 8436. The whole point in going through the public bidding exercise was completely lost. The very rationale of public bidding was totally subverted by the Commission. From another perspective, the Comelec approach also fails to make sense. Granted that, before election day, the software would still have to be customized to each precinct, municipality, city, district, and
so on, there still was nothing at all to prevent Comelec from requiring prospective suppliers/bidders to produce, at the very start of the bidding process, the next-to-final versions of the software (the best software the suppliers had) -- pre-tested and ready to be customized to the final list of candidates and project of precincts, among others, and ready to be deployed thereafter. The satisfaction of such requirement would probably have provided far better bases for evaluation and selection, as between suppliers, than the so-called demo software. Respondents contend that the bidding suppliers counting machines were previously used in at least one political exercise with no less than 20 million voters. If so, it stands to reason that the software used in that past electoral exercise would probably still be available and, in all likelihood, could have been adopted for use in this instance. Paying for machines and software of that category (already tried and proven in actual elections and ready to be adopted for use) would definitely make more sense than paying the same hundreds of millions of pesos for demo software and empty promises of usable programs in the future. But there is still another gut-level reason why the approach taken by Comelec is reprehensible. It rides on the perilous assumption that nothing would go wrong; and that, come election day, the Commission and the supplier would have developed, adjusted and re-programmed the software to the point where the automated system could function as envisioned. But what if such optimistic projection does not materialize? What if, despite all their herculean efforts, the software now being hurriedly developed and tested for the automated system performs dismally and inaccurately or, worse, is hacked and/or manipulated?[54] What then will we do with all the machines and defective software already paid for in the amount of P849 million of our tax money? Even more important, what will happen to our country in case of failure of the automation? The Court cannot grant the plea of Comelec that it be given until February 16, 2004 to be able to submit a certification relative to the additional elements of the software that will be customized, because for us to do so would unnecessarily delay the resolution of this case and would just give the poll body an unwarranted excuse to postpone the 2004 elections. On the other hand, because such certification will not cure the gravely abusive actions complained of by petitioners, it will be utterly useless. Is this Court being overly pessimistic and perhaps even engaging in speculation? Hardly. Rather, the Court holds that Comelec should not have gambled on the unrealistic optimism that the suppliers software development efforts would turn out well. The Commission should have adopted a much more prudent and judicious approach to ensure the delivery of tried and tested software, and readied alternative courses of action in case of failure. Considering that the nations future is at stake here, it should have done no less.
Epilogue Once again, the Court finds itself at the crossroads of our nations history. At stake in this controversy is not just the business of a computer supplier, or a questionable proclamation by Comelec of one or more public officials. Neither is it about whether this country should switch from the manual to the automated system of counting and canvassing votes. At its core is the ability and capacity of the Commission on Elections to perform properly, legally and prudently its legal mandate to implement the transition from manual to automated elections. Unfortunately, Comelec has failed to measure up to this historic task. As stated at the start of this Decision, Comelec has not merely gravely abused its discretion in awarding the Contract for the automation of the counting and canvassing of the ballots. It has also put at grave risk the holding of credible and peaceful elections by shoddily accepting electronic hardware and software that admittedly failed to pass legally mandated technical requirements. Inadequate as they are, the remedies it proffers post facto do not cure the grave abuse of discretion it already committed (1) on April 15, 2003, when it illegally made the award; and (2) sometime in May 2003 when it executed the Contract for the purchase of defective
machines and non-existent software from a non-eligible bidder. For these reasons, the Court finds it totally unacceptable and unconscionable to place its imprimatur on this void and illegal transaction that seriously endangers the breakdown of our electoral system. For this Court to cop-out and to close its eyes to these illegal transactions, while convenient, would be to abandon its constitutional duty of safeguarding public interest. As a necessary consequence of such nullity and illegality, the purchase of the machines and all appurtenances thereto including the still-to-be-produced (or in Comelecs words, to be reprogrammed) software, as well as all the payments made therefor, have no basis whatsoever in law. The public funds expended pursuant to the void Resolution and Contract must therefore be recovered from the payees and/or from the persons who made possible the illegal disbursements, without prejudice to possible criminal prosecutions against them. Furthermore, Comelec and its officials concerned must bear full responsibility for the failed bidding and award, and held accountable for the electoral mess wrought by their grave abuse of discretion in the performance of their functions. The State, of course, is not bound by the mistakes and illegalities of its agents and servants. True, our country needs to transcend our slow, manual and archaic electoral process. But before it can do so, it must first have a diligent and competent electoral agency that can properly and prudently implement a well-conceived automated election system. At bottom, before the country can hope to have a speedy and fraud-free automated election, it must first be able to procure the proper computerized hardware and software legally, based on a transparent and valid system of public bidding. As in any democratic system, the ultimate goal of automating elections must be achieved by a legal, valid and above-board process of acquiring the necessary tools and skills therefor. Though the Philippines needs an automated electoral process, it cannot accept just any system shoved into its bosom through improper and illegal methods. As the saying goes, the end never justifies the means. Penumbral contracting will not produce enlightened results. WHEREFORE, the Petition is GRANTED . The Court hereby declares NULL and VOID Comelec Resolution No. 6074 awarding the contract for Phase II of the CAES to Mega Pacific Consortium (MPC). Also declared null and void is the subject Contract executed between Comelec and Mega Pacific eSolutions (MPEI). [55] Comelec is further ORDERED to refrain from implementing any other contract or agreement entered into with regard to this project. Let a copy of this Decision be furnished the Office of the Ombudsman which shall determine the criminal liability, if any, of the public officials (and conspiring private individuals, if any) involved in the subject Resolution and Contract. Let the Office of the Solicitor General also take measures to protect the government and vindicate public interest from the ill effects of the illegal disbursements of public funds made by reason of the void Resolution and Contract. SO ORDERED. Carpio, Austria-Martinez, Carpio-Morales, and Callejo, Sr., JJ., concur . Davide, Jr., C.J., Vitug, and Ynares-Santiago, JJ., see separate opinion. Puno, J., concur, and also joins the opinion of J. Ynares-Santiago . Quisumbing, J., in the result. Sandoval-Gutierrez, J., see concurring opinion. Corona, and Azcuna, JJ., joins the dissent of J. Tinga . Tinga, J., pls. see dissenting opinion.
[1] Republic v. Cocofed, 372 SCRA 462, 493, December 14, 2001.
[2] Taada v. Angara, 272 SCRA 18, 79, May 2, 1997. [3] Francisco v. House of Representatives, GR No. 160261 and consolidated cases, November 10, 2003, per Morales, J. [4] Rollo, Vol. I, pp. 3-48. While petitioners labeled their pleading as one for prohibition and mandamus, its allegations qualify it also as one for certiorari. [5] An act authorizing the Commission on Elections to conduct a nationwide demonstration of a computerized election system and pilot-test it in the March 1996 elections in the Autonomous Region in Muslim Mindanao (ARMM) and for other purposes. [6] An act authorizing the Commission on Elections to use an automated election system in the May 11, 1998 national or local elections and in subsequent national and local electoral exercises, providing funds therefor and for other purposes. [7] Section 6 of RA 8436 provides [i]f in spite of its diligent efforts to implement this mandate in the exercise of this authority, it becomes evident by February 9, 1998 that the Commission cannot fully implement the automated election system for national positions in the May 11, 1998 elections, the elections for both national and local positions shall be done manually except in the Autonomous Region in Muslim Mindanao (ARMM) where the automated election system shall be used for all positions. [8] Loong v. Comelec, 365 Phil. 386, April 14, 1999; see also Panganiban, Leadership by Example, 1999 ed., pp. 201-249. [9] Annex 7 of the Comment of Private Respondents MPC and MPEI, rollo , Vol. II, p. 638. [10] Annex 8 of the Comment of Private Respondents MPC and MPEI, rollo , Vol. II, pp. 641-642. [11] Annex G of the Petition, Request for Proposal, p. 12; rollo , Vol. I, p. 71. [12] Id. , pp. 21-23 & 80-82. [13] According to Public Respondent Comelecs Memorandum prepared by the OSG, p. 8; rollo , Vol. IV, p. 2413. [14] Photocopy appended as Annex B of the Petition; rollo , Vol. I, pp. 52-53. [15] Photocopy appended as Annex C of the Petition; rollo , Vol. I, pp. 54-55. [16] The case was deemed submitted for decision on November 5, 2003, upon this Courts receipt of Private Respondent MPC/MPEIs Memorandum, which was signed by Attys. Alfredo V. Lazaro Jr., Juanito I. Velasco Jr. and Ma. Concepcion V. Murillo of the Lazaro Law Firm. On October 27, 2003, the Court received petitioners Memorandum, which was signed by Atty. Alvin Jose B. Felizardo of Pastelero Law Office, and Public Respondent Comelecs Memorandum, signed by Comelec Comm. Florentino A. Tuason Jr. Apart from these, the Office of the Solicitor General (OSG) filed another Memorandum on behalf of Comelec, also on October 27, 2003, signed by Asst. Sol. Gen. Carlos N. Ortega, Asst. Sol. Gen. Renan E. Ramos, Sol. Jane E. Yu and Asso. Sol. Catherine Joy R. Mallari, with a note that Sol. Gen. Alfredo L. Benipayo inhibited himself. The writing of the Decision in this case was initially raffled to Justice Dante O. Tinga. However, during the Courts deliberations, the present ponentes then Dissenting Opinion to the draft report of Justice Tinga was upheld by the majority. Hence, the erstwhile Dissent was rewritten into this full ponencia. [17] Page 11; rollo , Vol. IV, p. 2390. During the Oral Argument on October 7, 2003, the Court limited the issues to the following: (1) locus standi of petitioners; (2) prematurity of the Petition because of non-exhaustion of administrative remedies for failure to avail of protest mechanisms; and (3) validity of the award and the Contract being challenged in the Petition. [18] Chavez v. Presidential Commission on Good Government, 360 Phil. 133, December 9, 1998, per Panganiban, J. [19] Kilosbayan, Inc. v. Morato, 320 Phil. 171, November 16, 1995, per Mendoza, J. [20] Tatad v. Secretary of the Department of Energy, 346 Phil. 321, November 5, 1997, per Puno, J. [21] Del Mar v. Philippine Amusement and Gaming Corporation, 346 SCRA 485, November 29, 2000, per Puno, J. [22] Kilosbayan, Inc. v. Morato, supra . [23] Dumlao v. Comelec, 95 SCRA 392, January 22, 1980, per Melencio-Herrera, J. [24] Philconsa v. Mathay, 124 Phil. 890, October 4, 1966, per Reyes J. B.L., J.
[25] Respondent Comelecs Memorandum, pp. 50-51. [26] The law obliges no one to perform the impossible. [27] See private respondents Memorandum, p. 60. [28] Photocopy appended as Annex B of the petition. [29] 334 Phil. 146, January 10, 1997. [30] Id. , p. 153, per Torres Jr., J. [31] Although by its Resolution 6074, Comelec awarded the bid to MPC, the actual Contract was entered into by Comelec with MPEI. The Contract did not indicate an exact date of execution (except that it was allegedly done on the ____ day of May,) but it was apparently notarized on June 30, 2003. [32] In connection with this, public respondents, in their Memorandum made reference to the Implementing Rules and Regulations of RA 6957 as amended by RA 7718 (the Build-Operate-Transfer Law), and considered said IRR as being applicable to the instant case on a suppletory basis, pending the promulgation of implementing rules for RA 9184 (the Government Procurement Act). For our purposes, it is well worth noting that Sec. 5.4 of the IRR for RA 6957 as amended, speaks of prequalification requirements for project proponents, and in sub-section (b)(i), it provides that, for purposes of evaluating a joint venture or consortium, it shall submit as part of its prequalification statement a business plan which shall among others identify its members and its contractor(s), and the description of the respective roles said members and contractors shall play or undertake in the project. If undecided on a specific contractor, the proponent may submit a short list of contractors from among which it will select the final contractor. Short listed contractors are required to submit a statement indicating willingness to participate in the project and capacity to undertake the requirements of the project. The business plan shall disclose which of the members of the joint venture/consortium shall be the lead member, the financing arm, and/or facility operator(s), and the contractor(s). In other words, since public respondents argue that the IRR of RA 6957 as amended would be suppletorily applicable to this bidding, they could not have been unaware of the requirement under Sec. 5.4 (b)(i) thereof, in respect of submission of the requisite business plan by a joint venture or consortium participating in a bidding. [33] Now, what would prevent an enterprising individual from obtaining copies of the Articles of Incorporation and financial statements of, let us say, San Miguel Corporation and Ayala Corporation from the SEC, and using these to support ones claim that these two giant conglomerates have formed a consortium with ones own penny-ante company for the purpose of bidding for a multi-billion peso contract? As far as Comelec is concerned, the answer seems to be: Nothing. [34] TSN, October 7, 2003, p. 104. [35] Ibid. [36] Id. , pp. 104-105. [37] Id. , pp. 103-108. [38] Id. , pp. 108-114. [39] Id. , pp. 142-145. [40] On pp. 42-43 of the Memorandum of public respondents, filed with this Court on October 27, 2003, Comm. Tuason himself signed this pleading in his capacity as counsel of all the public respondents. [41] Copies of these four agreements were belatedly submitted to this Court by MPEI through a Manifestation with Profuse Apologies filed on October 9, 2003. [42] Copies of the four separate bilateral agreements were submitted to the Court last October 9, 2003. [43] The date was carelessly stated as ____ May, 2003. [44] At p. 38. [45] During the Oral Argument, counsel for public respondents admitted that Comelec was aware that not all the members of the
consortium had agreed to be jointly and solidarily liable with MPEI. [46] 232 SCRA 110, 144, May 5, 1994, per Davide Jr., J. (now CJ). [47] Culled from table 6, DOST Report; rollo , Vol. II, pp. 1059-1072. [48] Annex I of the Petition, Vol. I, pp. 116-118. [49] Source code is the program instructions in their original form. Initially, a programmer writes a computer program in a particular programming language. This form of the program is called the source program, or more generically, source code. To execute the program, however, the programmer must translate it into machine language, the language that the computer understands. Source code is the only format that is readable by humans. When you purchase programs, you usually receive them in their machine-language format. This means that you can execute them directly, but you cannot read or modify them. Some software manufacturers provide source code, but this is useful only if you are an experienced programmer. [50] The key passages of the Courts Resolution of December 9, 2003 were cited and reproduced verbatim in the Comelecs Partial Compliance and Manifestation. [51] Metals Industry Research and Development Center (MIRDC) of the Department of Science & Technology (DOST). [52] Photocopy of the MIRDC-DOST letter of Dec. 15, 2003 is attached as Annex A to Respondent Comelecs Partial Compliance and Manifestation. However, the 11 Test Certifications of the DOST (covering 11 lots or 158 ACMs) which were purportedly attached to this letter, have not been reproduced and submitted to the Court, for reasons known only to respondents. [53] For example, one can conduct tests to see if certain machines will tip over and fall on their sides when accidentally bumped, or if they have a tendency to collapse under their own weight. A less frivolous example might be that of conducting the same tests, but lowering the bar or passing mark. [54] In the December 15, 2003 issue of the Philippine Daily Inquirer is an item titled Digital dagdag-bawas: a nonpartisan issue by Dean Jorge Bocobo, from which the following passages appear: The Commission on Elections will use automated counting machines to tally paper ballots in the May elections, and a telecommunications network to transmit the results to headquarters, along with CDs of the data. Yet, with only five months to go, the application software packages for that crucial democratic exercise--several hundred thousand lines of obscure and opaque code--has not yet even been delivered in its final form, Comelec Chairman Benjamin Abalos admitted last week. My jaw dropped in amazement. Having built software for General Electric Co.'s medical systems business and military aircraft engines division (in another lifetime), I have learned the hard and painful way that 90 percent of unintended fatal problems with complex software lies in the last 10 percent of the code produced. From experience, I can assure you now with metaphysical certainty that not even the people furiously writing that software know whether it will actually work as intended on May 10, much less guarantee it. Simply put, the proposed software-hardware combination has neither been tested completely nor verified to comply with specifications. [55] Dated ____ May, 2003 but notarized on June 30, 2003.
426
SUPREME COURT REPORTS ANNOTATED People vs. Tigle G.R. No. 148334. January 21, 2004.
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ARTURO M. TOLENTINO and ARTURO C. MOJICA, petitioners, vs. COMMISSION ON ELECTIONS, SENATOR RALPH G. RECTO and SENATOR GREGORIO B. HONASAN, respondents.
Election Law; Special Elections; Senate Electoral Tribunal; Powers; The Senate Electoral Tribunal is the sole judge of all contests relating to the qualifications of the members of the Senate. A quo warranto proceeding is, among others, one to determine the right of a public officer in the exercise of his office and to oust him from its enjoyment if his claim is not well-founded. Under Section 17, Article VI of the Constitution, the Senate Electoral Tribunal is the sole judge of all contests relating to the qualifications of the members of the Senate. Same; Same; Parties; Locus Standi; The requirement of standing, which necessarily sharpens the presentation of issues, relates to the constitutional mandate that this Court settle only actual cases or controversies.Legal standing or locus standi refers to a personal and substantial interest in a case such that the party has sustained or will sustain direct injury because of the challenged governmental act. The requirement of
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EN BANC.
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VOL. 420, JANUARY 21, 2004 Tolentino vs. Commission on Elections
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standing, which necessarily sharpens the presentation of issues,
relates to the constitutional mandate that this Court settle only actual cases or controversies. Thus, generally, a party will be allowed to litigate only when (1) he can show that he has personally suffered some actual or threatened injury because of the allegedly illegal conduct of the government; (2) the injury is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by a favorable action. Same; Same; Same; Same; In not a few cases, the court has adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able to craft an issue of transcendental significance to the people. This Court has the discretion to take cognizance of a suit which does not satisfy the requirement of legal standing when paramount interest is involved. In not a few cases, the court has adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able to craft an issue of transcendental significance to the people. Thus, when the issues raised are of paramount importance to the public, the Court may brush aside technicalities of procedure. Same; Same; Commission on Elections; Section 2 of R.A. 6645 provides for the procedure in calling a special election. In case a vacancy arises in Congress at least one year before the expiration of the term, Section 2 of R.A. No. 6645, as amended, requires COMELEC: (1) to call a special election by fixing the date of the special election, which shall not be earlier than sixty (60) days nor later than ninety (90) after the occurrence of the vacancy but in case of a vacancy in the Senate, the special election shall be held simultaneously with the next succeeding regular election; and (2) to give notice to the voters of, among other things, the office or offices to be voted for. Same; Same; Same; In a special election to fill a vacancy, the rule is that a statute that expressly provides that an election to fill a vacancy shall be held at the next general elections fixes the date at which the special election is to be held and operates as the call for that election. The calling of an election, that is, the giving notice of the time and place of its occurrence, whether made by the legislature directly or by the body with the duty to give such call, is indispensable to the elections validity. In a general election, where the law fixes the date of the election, the election is valid without any call by the body charged to administer the election. In a special election to fill a vacancy, the rule is that a statute that expressly provides that an election to fill a vacancy shall be held at the next general elections fixes the date at which the special election is to be held and operates as the call for that election. Consequently, an election held at the time thus prescribed is not invalidated by the fact that the body charged by law with the duty of calling the election failed to do so. This is because the right and duty to hold the election emanate from the statute and not
440
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SUPREME COURT REPORTS ANNOTATED Tolentino vs. Commission on Elections
from any call for the election by some authority and the law thus charges voters with knowledge of the time and place of the election. Conversely, where the law does not fix the time and place for holding a special election but empowers some authority to fix the time and place after the happening of a condition precedent, the statutory provision on the giving of notice is considered mandatory, and failure to do so will render the election a nullity. Same; Same; Same; Lack of notice to a sufficient number of voters of the special election renders the same void. The test in determining the validity of a special election in relation to the failure to give notice of the special election is whether the want of notice has resulted in misleading a sufficient number of voters as would change the result of the special election. If the lack of official notice misled a substantial number of voters who wrongly believed that there was no special election to fill a vacancy, a choice by a small percentage of voters would be void. The required notice to the voters in the 14 May 2001 special senatorial election covers two matters. First, that COMELEC will hold a special election to fill a vacant single three-year term Senate seat simultaneously with the regular elections scheduled on the same date. Second, that COMELEC will proclaim as winner the senatorial candidate receiving the 13th highest number of votes in the special election. Same; Same; Same; The consistent rule has been to respect the electorates will and let the results of the election stand, despite irregularities that may have attended the conduct of the elections. Indeed, this Court is loathe to annul elections and will only do so when it is impossible to distinguish what votes are lawful and what are unlawful, or to arrive at any certain result whatever, or that the great body of the voters have been prevented by violence, intimidation, and threats from exercising their franchise. Otherwise, the consistent rule has been to respect the electorates will and let the results of the election stand, despite irregularities that may have attended the conduct of the elections. This is but to acknowledge the purpose and role of elections in a democratic society such as ours, which is: to give the voters a direct participation in the affairs of their government, either in determining who shall be their public officials or in deciding some question of public interest; and for that purpose all of the legal voters should be permitted, unhampered and unmolested, to cast their ballot. When that is done and no frauds have been committed,
the ballots should be counted and the election should not be declared null. Innocent voters should not be deprived of their participation in the affairs of their government for mere irregularities on the part of the election officers, for which they are in no way responsible. A different rule would make the manner and method of performing a public duty of greater importance than the duty itself.
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Same; Same; Same; The COMELEC should be allowed considerable latitude in devising means and methods that will insure the accomplishment of the great objective for which it was createdfree, orderly and honest elections. The Commission on Elections is a constitutional body. It is intended to play a distinct and important part in our scheme of government. In the discharge of its functions, it should not be hampered with restrictions that would be fully warranted in the case of a less responsible organization. The Commission may err, so may this Court also. It should be allowed considerable latitude in devising means and methods that will insure the accomplishment of the great objective for which it was createdfree, orderly and honest elections. We may not agree fully with its choice of means, but unless these are clearly illegal or constitute gross abuse of discretion, this court should not interfere.
Puno, J. , Dissenting Opinion:

Constitutional Law; Sovereignty; Modes; An outstanding feature of the 1987 Constitution is the expansion of the democratic space giving the people greater power to exercise their sovereignty.An outstanding feature of the 1987 Constitution is the expansion of the democratic space giving the people greater power to exercise their sovereignty. Thus, under the 1987 Constitution, the people can directly exercise their sovereign authority through the following modes, namely: (1) elections; (2) plebiscite; (3) initiative; (4) recall; and (5) referendum. Through elections, the people choose the representatives to whom they will entrust the exercise of powers of government. In a plebiscite, the people ratify any amendment to or revision of the Constitution and may introduce amendments to the constitution. Indeed, the Constitution mandates Congress to provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject
any law or part thereof passed by the Congress or local legislative body. . . It also directs Congress to enact a local government code which shall provide for effective mechanisms of recall, initiative, and referendum. Pursuant to this mandate, Congress enacted the Local Government Code of 1991 which defines local initiative as the legal process whereby the registered voters of a local government unit may directly propose, enact, or amend any ordinance through an election called for the purpose. Recall is a method of removing a local official from office before the expiration of his term because of loss of confidence. In a referendum, the people can approve or reject a law or an issue of national importance. Section 126 of the Local Government Code of 1991 defines a local referendum as the legal process whereby the registered voters of the local government units may approve, amend or reject any ordinance enacted by the sanggunian.
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Same; Same; Right to Suffrage; The existence of the right of suffrage is a threshold for the preservation and enjoyment of all other rights.The right to vote or of suffrage is an important political right appertaining to citizenship. Each individual qualified to vote is a particle of popular sovereignty. In People v. Corral, we held that (t)he modern conception of suffrage is that voting is a function of government. The right to vote is not a natural right but it is a right created by law. Suffrage is a privilege granted by the State to such persons as are most likely to exercise it for the public good. The existence of the right of suffrage is a threshold for the preservation and enjoyment of all other rights that it ought to be considered as one of the most sacred parts of the constitution. In Geronimo v. Ramos, et al., we held that the right is among the most important and sacred of the freedoms inherent in a democratic society and one which must be most vigilantly guarded if a people desires to maintain through self-government for themselves and their posterity a genuinely functioning democracy in which the individual may, in accordance with law, have a voice in the form of his government and in the choice of the people who will run that government for him. The U.S. Supreme Court recognized in Yick Wo v. Hopkins that voting is a fundamental political right, because [it is] preservative of all rights. In Wesberry v. Sanders, the U.S. Supreme Court held that no right is more precious in a free country than that of having a voice in the election of those who make the laws, under which, as good citizens, we must live. Other rights, even the most basic, are
illusory if the right to vote is undermined. Voting makes government more responsive to community and individual needs and desires. Especially for those who feel disempowered and marginalized or that government is not responsive to them, meaningful access to the ballot box can be one of the few counterbalances in their arsenal. Same; Same; Same; The purpose of election laws is to safeguard the will of the people, the purity of elections being one of the most important and fundamental requisites of popular government.Thus, elections are substantially regulated for them to be fair and honest, for order rather than chaos to accompany the democratic processes. This Court has consistently ruled from as early as the oft-cited 1914 case of Gardiner v. Romulo that the purpose of election laws is to safeguard the will of the people, the purity of elections being one of the most important and fundamental requisites of popular government. We have consistently made it clear that we frown upon any interpretation of the law or the rules that would hinder in any way not only the free and intelligent casting of the votes in an election but also the correct ascertainment of the results. To preserve the purity of elections, comprehensive and sometimes complex election codes are enacted, each provision of whichwhether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itselfinevitably affects the individuals right to vote. As the right to vote in a free and unimpaired manner is preservative of other
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basic civil and political rights, Chief Justice Warren, speaking for the U.S. Supreme Court in Reynolds v. Sims cautioned that any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized. It was to promote free, orderly and honest elections and to preserve the sanctity of the right to vote that the Commission on Elections was created. The 1987 Constitution mandates the COMELEC to ensure free, orderly, honest, peaceful, and credible elections. Same; Right to Information; As worded in the 1973 and 1987 Constitution, the right to information is self-executory. As worded in the 1973 and 1987 Constitution, the right to information is selfexecutory. It is a public right where the real parties in interest are the people. Thus, every citizen has standing to challenge any
violation of the right and may seek its enforcement. The right to information, free speech and press and of assembly and petition and association which are all enshrined in the Bill of Rights are cognate rights for they all commonly rest on the premise that ultimately it is an informed and critical public opinion which alone can protect and uphold the values of democratic government. Same; Same; An informed citizenry with access to the diverse currents in political, moral and artistic thought and data relative to them, and the free exchange of ideas and discussion of issues thereon is vital to the democratic government envisioned under our Constitution.An informed citizenry with access to the diverse currents in political, moral and artistic thought and data relative to them, and the free exchange of ideas and discussion of issues thereon is vital to the democratic government envisioned under our Constitution. The cornerstone of this republican system of government is delegation of power by the people to the State. In this system, governmental agencies and institutions operate within the limits of the authority conferred by the people. Denied access to information on the inner workings of government, the citizenry can become prey to the whims and caprices of those to whom the power had been delegated . . . x x x x x x x x x . . .The right of access to information ensures that these freedoms are not rendered nugatory by the governments monopolizing pertinent information. For an essential element of these freedoms is to keep open a continuing dialogue or process of communication between the government and the people. It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the peoples will. Yet, this open dialogue can be effective only to the extent that the citizenry is informed and thus able to formulate its will intelligently. Only when the participants in a discussion are aware of the issues and have access to information relating thereto can such bear fruit. The right to information is an essential premise of a meaningful right to speech and expression. But this is not to say that the right to information is merely an adjunct of and therefore restricted in application by the exercise of the freedoms of speech
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and of the press. Far from it. The right to information goes handin-hand with the constitutional policies of full public disclosure (footnote omitted) and honesty in the public service (footnote omitted). It is meant to enhance the widening role of the citizenry in
governmental decision-making as well as in checking abuse in government. Same; Same; An informed citizenry is essential to the existence and proper functioning of any democracy.These twin provisions (on right to information under Section 7, Article III and the policy of full public disclosure under Section 28, Article II) of the Constitution seek to promote transparency in policy-making and in the operations of the government, as well as provide the people sufficient information to exercise effectively other constitutional rights. These twin provisions are essential to the exercise of freedom of expression. If the government does not disclose its official acts, transactions and decisions to citizens, whatever citizens may say, even if expressed without any restraint, will be speculative and amount to nothing. These twin provisions are also essential to hold public officials at all times x x x accountable to the people, (footnote omitted) for unless citizens have the proper information, they cannot hold public officials accountable for anything. Armed with the right information, citizens can participate in public discussions leading to the formulation of government policies and their effective implementation. An informed citizenry is essential to the existence and proper functioning of any democracy. Same; Same; Notice to the electors that a vacancy exists and that an election is to be held to fill it for the unexpired term, is essential to give validity to the meeting of an electoral body to discharge that particular duty, and is also an essential and characteristic element of a popular election. Although there is not unanimity of judicial opinion as to the requirement of official notice, if the vacancy is to be filled at the time of a general election, yet it appears to be almost universally held that if the great body of the electors are misled by the want of such notice and are instead led to believe that no such election is in fact to be held, an attempted choice by a small percentage of the voters is void. Wilson v. Brown, 109 Ky 229, 139 Ky 397, 58 SW 595; Wooton v. Wheeler , 149 Ky 62, 147 SW 914; Secord v. Foutch, 44 Mich 89, 6 NW 110; Bolton v. Good , 41 NJL 296 (other citations omitted). Notice to the electors that a vacancy exists and that an election is to be held to fill it for the unexpired term, is essential to give validity to the meeting of an electoral body to discharge that particular duty, and is also an essential and characteristic element of a popular election. Public policy requires that it should be given in such form as to reach the body of the electorate. Here there had been no nominations to fill the vacancy, either by the holding of a special primary election, or by nomination by county political conventions or party committees. The designation of the office to be filled was not upon the official ballot. As before
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noted, except for the vacancy, it would have no place there, as the term of office of the incumbent, if living, would not expire until January 1, 1947.
SPECIAL CIVIL ACTION in the Supreme Court. Prohibition. The facts are stated in the opinion of the Court. Arturo M. Tolentino and Arturo C. Mojica for and in their own behalf. Romulo B. Macalintal for private respondent Recto. Edmund A.M. Batara for Sen. G. Honasan. CARPIO, J. :
The Case This is a petition for prohibition to set aside Resolution No. NBC 01-005 dated 5 June 2001 (Resolution No. 01-005) and Resolution No. NBC 01-006 dated 20 July 2001 (Resolution No. 01-006) of respondent Commission on Elections (COMELEC). Resolution No. 01-005 proclaimed the 13 candidates elected as Senators in the 14 May 2001 elections while Resolution No. 01-006 declared official and final the ranking of the 13 Senators proclaimed in Resolution No. 01-005. The Facts Shortly after her succession to the Presidency in January 2001, President Gloria Macapagal-Arroyo nominated then Senator Teofisto T. Guingona, Jr. (Senator Guingona) as Vice-President. Congress confirmed the nomination of Senator Guingona who took his oath as Vice-President on 9 February 2001. Following Senator Guingonas confirmation, the Senate on 8 February 2001 passed Resolution No. 84 (Resolution No. 84) certifying to the existence of a vacancy in the Senate. Resolution No. 84 called on COMELEC to fill the vacancy through a special election to be held simultaneously with the regular elections on 14 May 2001.
Twelve Senators, with 1a 6-year term each, were due to be elected in that election. Resolution No. 84 further provided that the Senatorial candidate garnering the 13th highest number of
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1
As provided under Section 2 of Republic Act. No. 7166, as
amended. 446
446
votes shall serve only for the unexpired term of former Senator Teofisto T. Guingona, Jr., which ends on 30 June 2 2004. On 5 June 2001, after COMELEC had canvassed the election results from all the provinces but one (Lanao del Norte), COMELEC issued Resolution No. 01-005 provisionally proclaiming 13 candidates as the elected Senators. Resolution No. 01-005 also provided that the first twelve (12) Senators shall serve for a term of six (6) years and the thirteenth (13th) Senator shall serve the unexpired term of three (3) years of Senator Teofisto T. 3 Guingona, Jr. who was appointed Vice-President. Respondents Ralph Recto (Recto)
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2
Resolution No. 84 reads:
WHEREAS, the Honorable Teofisto Guingona, Jr. was elected Senator of the Philippines in 1998 for a term which will expire on June 30, 2004; WHEREAS, on February 6, 2001, Her Excellency President Gloria Macapagal-Arroyo nominated Senator Guingona as Vice-President of the Philippines; WHEREAS, the nomination of Senator Guingona has been conferred by a majority vote of all the members of both Houses of Congress, voting separately; WHEREAS, Senator Guingona will take his Oath of Office as Vice-President of the Philippines on February 9, 2001; WHEREAS, Republic Act No. 7166 provides that the election for twelve (12) Senators, all elective Members of the House of Representatives, and all elective provincial, city and municipal officials shall be held on the second Monday of May and every three years thereafter. Now, therefore be it Resolved by the Senate, as it is hereby resolved to certify as it hereby certifies, the existence of a vacancy in the Senate and calling the Commission on Elections (COMELEC) to fill up said vacancy through election to be held simultaneously with the
regular election on May 14, 2001 and the senatorial candidate garnering the thirteenth (13th) highest number of votes shall serve only for the unexpired term of former Senator Teofisto T Guingona, Jr. (Emphasis supplied)
3
Resolution No. 01-005 reads:
WHEREAS, the Commission on Elections, sitting [E]n [B]anc as the National Board of Canvassers for the election of Senators of the Philippines, officially canvassed in open and public proceedings the certificates of canvass of votes cast nationwide for senators in the national and local elections conducted on May 14, 2001.
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and Gregorio Honasan (Honasan) ranked 12th and 13th, respectively, in Resolution No. 01-005. On 20 June 2001, petitioners Arturo Tolentino, and Arturo Mojica (petitioners), as voters and taxpayers, filed the instant petition for prohibition, impleading only COMELEC as respondent.
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Based on the canvass of the Certificates of Canvass submitted by seventy-eight (78) out of seventy-nine (79) Provincial Boards of Canvassers, twenty (20) City Boards of Canvassers of cities comprising one (1) or more legislative districts, two (2) District Boards of Canvassers of Metro Manila, and one (1) Absentee Voting, and the remaining uncanvassed certificate of canvass which will not anymore affect the results, the Commission on Elections sitting En Banc as the National Board of Canvassers finds that the following candidates for senators in said elections obtained as of June 04, 2001 the following number of votes as indicated opposite their names:
Name NOLI DE CASTRO JUAN M. FLAVIER SERGIO R. OSMEA, III FRANKLIN M. DRILON RAMON B. MAGSAYSAY, JR. JOKER P. ARROYO MANUEL B. VILLAR, JR. FRANCIS N. PANGILINAN EDGARDO J. ANGARA PANFILO M. LACSON LUISA P. EJERCITO ESTRADA RALPH G. RECTO GREGORIO G. HONASAN Votes Garnered (as of 4 June 2001) 16,157,811 11,676,129 11,531,427 11,223,020 11,187,447 11,163,801 11,084,884 10,877,989 10,746,843 10,481,755 10,456,674 10,387,108 10,364,272
NOW, THEREFORE, by virtue of the powers vested in it under the Constitution, the Omnibus Election Code and other election laws, the Commission on Elections sitting En Banc as the National Board of Canvassers hereby PROCLAIMS the above-named thirteen (13) candidates as the duly elected Senators of the Philippines in the May 14, 2001 elections. Based on the certificates of canvass finally tabulated, the first twelve (12) Senators shall serve for a term of six (6) years and the thirteenth (13th) Senator shall serve the unexpired term of three (3) years of Senator Teofisto T. Guingona, Jr. who was appointed Vice-President of the Philippines pursuant to Section 9, Article VII of the Constitution, in relation to Section 9, Article VI thereof, as implemented under Republic Act No. 6645. (Emphasis supplied)
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Petitioners sought to enjoin COMELEC from proclaiming with finality the candidate for Senator receiving the 13th highest number of votes as the winner in the special election for a single three-year term seat. Accordingly, petitioners prayed for the nullification of Resolution No. 01005 in so far as it makes a proclamation to such effect. Petitioners contend that COMELEC issued Resolution No. 01-005 without jurisdiction because: (1) it failed to notify the electorate of the position to be filled in the special election as required under Section 2 of Republic Act No. 4 6645 (R.A. No. 6645); (2) it failed to require senatorial candidates to indicate in their certificates of candidacy whether they seek election under the special or regular elections as allegedly required under Section 73 of Batas 5 Pambansa Blg. 881; and, consequently (3) it failed to specify in the Voters Information Sheet the candidates seeking election under the special or regular senatorial elections as purportedly required under Section 4, paragraph 4 of Republic Act No. 6646 (R.A. No.
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4
This provision states: The Commission on Elections shall fix the
date of the special election, which shall not be earlier than forty-five (45) days nor later than ninety (90) days from the date of such resolution or communication, stating among other things the office or offices to be voted for: Provided, however, That if within the said period a general election is scheduled to be held, the special election shall be held simultaneously with such general election.
5
This provision reads: Certificate of candidacy.No person shall be
eligible for any elective public office unless he files a sworn certificate
of candidacy within the period fixed herein. A person who has filed a certificate of candidacy may, prior to the election, withdraw the same by submitting to the office concerned a written declaration under oath. No person shall be eligible for more than one office to be filled in the same election, and if he files his certificate of candidacy for more than one office, he shall not be eligible for any of them. However, before the expiration of the period for the filing of certificates of candidacy, the person who has filed more than one certificate of candidacy may declare under oath the office for which he desires to be eligible and cancel the certificate of candidacy for the other office or offices. The filing or withdrawal of a certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which a candidate may have incurred. 449
449
6646). Petitioners add that because of these omissions, COMELEC canvassed all the votes cast for the senatorial candidates in the 14 May 2001 elections without distinction such that there were no two separate Senate elections held simultaneously but just a single election for thirteen seats, 7 irrespective of term. Stated otherwise, petitioners claim that if held simultaneously, a special and a regular election must be distinguished in the documentation as well as in the canvassing of their results. To support their claim, petitioners cite the special elections simultaneously held with the regular elections of 13 November 1951 and 8 November 1955 to fill the seats vacated by Senators Fernando Lopez and Carlos P. Garcia, respectively, who became 8 Vice-Presidents during their tenures in the Senate. Petitioners point out that in those elections, COMELEC separately canvassed the votes cast for the senatorial candidates running under the regular elections from the votes cast for the candidates running under the special elections. COMELEC also separately proclaimed 9 the winners in each of those elections. Petitioners sought the issuance of a temporary restraining order during the pendency of their petition. Without issuing any restraining order, we required COMELEC to Comment on the petition. On 20 July 2001, after COMELEC had canvassed the results from all the provinces, it issued Resolution No. 01006 declaring official and final the ranking of the 13
Senators proclaimed in Resolution No. 01-005. The 13 Senators took their oaths of office on 23 July 2001. In view of the issuance of Resolution No. 01-006, the Court required petitioners to file an amended petition impleading Recto and Honasan as additional respondents. Petitioners accordingly
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6
This provision reads: Certificates of Candidacy; Certified List of
Candidates. x x x The names of all registered candidates immediately followed by the nickname or stage name shall also be printed in the election returns and tally sheets.
7 8
Rollo, pp. 5-7, 12-14. Senator Roseller T. Lim was elected in the special election of 13
November 1951 while Senator Felisberto Verano was elected in the special election of 8 November 1955.
9
Rollo, pp. 8-12. 450
450
filed an amended petition in which they reiterated the contentions raised in their original petition and, in addition, sought the nullification of Resolution No. 01-006. In their Comments, COMELEC, Honasan, and Recto all claim that a special election to fill the seat vacated by Senator Guingona was validly held on 14 May 2001. COMELEC and Honasan further raise preliminary issues on the mootness of the petition and on petitioners standing to litigate. Honasan also claims that the petition, which seeks the nullity of his proclamation as Senator, is actually a quo warranto petition and the Court should dismiss the same for lack of jurisdiction. For his part, Recto, as the 12th ranking Senator, contends he is not a proper party to this case because the petition only involves the validity of the proclamation of the 13th placer in the 14 May 2001 senatorial elections. The Issues The following are the issues presented for resolution: (1) Procedurally (a) whether the petition is in fact a petition for quo
warranto over which the Senate Electoral Tribunal is the sole judge; (b) whether the petition is moot; and (c) whether petitioners have standing to litigate. (2) On the merits, whether a special election to fill a vacant three-year term Senate seat was validly held on 14 May 2001.
The Ruling of the Court The petition has no merit. On the Preliminary Matters The Nature of the Petition and the Courts Jurisdiction A quo warranto proceeding is, among others, one to determine the right of a public officer in the exercise of his office and to oust him from its enjoyment if his claim is not 10 well-founded. Under Section 17, Article VI of the Constitution, the Senate Electoral
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10
Castro v. Del Rosario, 125 Phil. 611; 19 SCRA 196 (1967), Section
1(a), Rule 66, THE 1997 RULES OF CIVIL PROCEDURE. 451
451
Tribunal is the sole judge of all contests relating to the qualifications of the members of the Senate. A perusal of the allegations contained in the instant petition shows, however, that what petitioners are questioning is the validity of the special election on 14 May 2001 in which Honasan was elected. Petitioners various prayers are, namely: (1) a declaration that no special election was held simultaneously with the general elections on 14 May 2001; (2) to enjoin COMELEC from declaring anyone as having won in the special election; and (3) to annul Resolution Nos. 01-005 and 01-006 in so far as these Resolutions proclaim Honasan as the winner in the special election. Petitioners anchor their prayers on COMELECs alleged failure to comply with certain requirements pertaining to the conduct of that special election. Clearly
then, the petition does not seek to determine Honasans right in the exercise of his office as Senator. Petitioners prayer for the annulment of Honasans proclamation and, ultimately, election is merely incidental to petitioners cause of action. Consequently, the Court can properly exercise jurisdiction over the instant petition. On the Mootness of the Petition COMELEC contends that its proclamation on 5 June 2001 of the 13 Senators and its subsequent confirmation on 20 July 2001 of the ranking of the 13 Senators render the instant petition to set aside Resolutions Nos. 01-005 and 01-006 moot and academic. Admittedly, the office of the writ of prohibition is to command a tribunal or board to desist from committing an act threatened to be done without jurisdiction or with grave abuse of discretion amounting to lack or excess of 11 jurisdiction. Consequently, the writ will not lie to enjoin 12 acts already done. However, as an exception to the rule on mootness, courts will decide a question otherwise moot if it 13 is capable of repetition yet evading review. Thus, in
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11
Sections
1-2,
Rule
65, THE
1997
RULES
OF
CIVIL
PROCEDURE.
12
Gil v. Benipayo, G.R. No. 148179, 26 June 2001 (minute Acop v. Guingona, G.R. No. 134856, 2 July 2002, 383 SCRA 577;
resolution).
13
Viola v. Hon. Alunan III, 343 Phil. 184; 277 SCRA 409 (1997), Alunan III v. Mirasol, 342 Phil. 467; 276 SCRA 501 (1997). 452
452
Alunan III v. Mirasol, we took cognizance of a petition to set aside an order canceling the general elections for the Sangguniang Kabataan (SK) on 4 December 1992 despite that at the time the petition was filed, the SK election had already taken place. We noted in Alunan that since the question of the validity of the order sought to be annulled is likely to arise in every SK elections and yet the question may not be decided before the date of such elections, the mootness of the petition is no bar to its resolution. This observation squarely applies to the instant case. The question of the validity of a special election to fill a vacancy
14
in the Senate in relation to COMELECs failure to comply with requirements on the conduct of such special election is likely to arise in every such election. Such question, however, may not be decided before the date of the election. On Petitioners Standing Honasan questions petitioners standing to bring the instant petition as taxpayers and voters because petitioners do not claim that COMELEC illegally disbursed public funds. Neither do petitioners claim that they sustained personal injury because of the issuance of Resolution Nos. 01-005 and 01-006. Legal standing or locus standi refers to a personal and substantial interest in a case such that the party has sustained or will sustain direct injury because of the 15 challenged governmental act. The requirement of standing, which necessarily sharpens the presentation of 16 issues, relates to the constitutional mandate that this 17 Court settle only actual cases or controversies. Thus, generally, a party will be allowed to litigate only when (1) he can show that he has personally suffered some actual or threatened injury because of the allegedly illegal conduct of the government; (2) the injury is fairly traceable to the challenged action; and (3) the injury is likely to be 18 redressed by a favorable action.
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14 15
342 Phil. 467; 276 SCRA 501 (1997). Joya v. Presidential Commission on Good Government, G.R. No. Kilosbayan, Incorporated v. Morato, 316 Phil. 652; 246 SCRA 543 CONST., art. VIII, secs. 1 and 5(2). Telecommunications and Broadcast Attorneys of the Philippines,
96541, 24 August 1993, 225 SCRA 568.

16
(1995).
17 18
Inc. v. Commission on Elections, 352 Phil. 153; 289 SCRA 337 (1998). 453
453
Applied strictly, the doctrine of standing to litigate will indeed bar the instant petition. In questioning, in their capacity as voters, the validity of the special election on 14 May 2001, petitioners assert a harm classified as a generalized grievance. This generalized grievance is shared in substantially equal measure by a large class of
voters, if not all the voters, who voted in that election. Neither have petitioners alleged, in their capacity as taxpayers, that the Court should give due course to the petition because in the special election held on 14 May 2001 tax money [was] x x x extracted and spent in violation of specific constitutional protections against abuses of legislative power or that there [was] misapplication of such funds by COMELEC or that public money [was] 20 deflected to any improper purpose. On the other hand, we have relaxed the requirement on standing and exercised our discretion to give due course to 21 voters suits involving the right of suffrage. Also, in the recent case of Integrated Bar of the Philippines v. 22 Zamora, we gave the same liberal treatment to a petition filed by the Integrated Bar of the Philippines (IBP). The IBP questioned the validity of a Presidential directive deploying elements of the Philippine National Police and the Philippine Marines in Metro Manila to conduct patrols even though the IBP presented too general an interest. We held:
[T]he IBP primarily anchors its standing on its alleged responsibility to uphold the rule of law and the Constitution. Apart from this declaration, however, the IBP asserts no other basis in support of its locus standi. The mere invocation by the IBP of its duty to preserve the rule of law and nothing more, while undoubtedly true, is not sufficient to clothe it with standing in this case. This is too general an interest which is shared by other groups and the whole citizenry x x x. Having stated the foregoing, this Court has the discretion to take cognizance of a suit which does not satisfy the requirement of legal standing when paramount interest is involved. In not a few cases, the
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19 20
19
See Warth v. Seldin, 442 U.S. 490, 45 L.Ed.2d 343 (1975). Dumlao v. Commission on Elections, G.R. No. L-52245, 22 January 1980, De Guia v. Commission on Elections, G.R. No. 104712, 6 May 1992, 208
95 SCRA 392 (internal citations omitted).

21
SCRA 420; Gonzales v. Commission on Elections, 129 Phil. 7; 21 SCRA 774 (1967). See also Telecom. & Broadcast Attys. of the Phils., Inc. v. Commission on Elections, 352 Phil. 153; 289 SCRA 337 (1998).
22
G.R. No. 141284, 15 August 2000, 338 SCRA 81.
454
454
SUPREME COURT REPORTS ANNOTATED
Tolentino vs. Commission on Elections court has adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able to craft an issue of transcendental significance to the people. Thus, when the issues raised are of paramount importance to the public, the Court may brush aside technicalities of procedure. In this case, a reading of the petition shows that the IBP has advanced constitutional issues which deserve the attention of this Court in view of their seriousness, novelty and weight as precedents. Moreover, because peace and order are under constant threat and lawless violence occurs in increasing tempo, undoubtedly aggravated by the Mindanao insurgency problem, the legal controversy raised in the petition almost certainly will not go away. It will stare us in the face again. It, therefore, behooves the Court to relax the rules on 23 standing and to resolve the issue now, rather than later. (Emphasis supplied)
We accord the same treatment to petitioners in the instant case in their capacity as voters since they raise important issues involving their right of suffrage, considering that the issue raised in this petition is likely to arise again. Whether a Special Election for a Single, Three-Year Term Senatorial Seat was Validly Held on 14 May 2001 Under Section 9, Article VI of the Constitution, a special election may be called to fill any vacancy in the Senate and the House of Representatives in the manner prescribed by law, thus:
In case of vacancy in the Senate or in the House of Representatives, a special election may be called to fill such vacancy in the manner prescribed by law, but the Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term. (Emphasis supplied)
To implement this provision of the Constitution, Congress passed R.A. No. 6645, which provides in pertinent parts:
SECTION 1. In case a vacancy arises in the Senate at least eighteen (18) months or in the House of Representatives at least one (1) year before the next regular election for Members of Congress, the Commission on Elections, upon receipt of a resolution of the Senate or the House of Representatives, as the case may be, certifying to the existence of such vacancy and calling for a special election, shall hold a special election to fill such vacancy. If Congress is in recess, an official communication on the
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23
Integrated Bar of the Philippines vs. Zamora, G.R. No. 141284, 15 August
2000, 338 SCRA 81.
455
455
existence of the vacancy and call for a special election by the President of the Senate or by the Speaker of the House of Representatives, as the case may be, shall be sufficient for such purpose. The Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term. SECTION 2. The Commission on Elections shall fix the date of the special election, which shall not be earlier than forty-five (45) days nor later than ninety (90) days from the date of such resolution or communication, stating among other things the office or offices to be voted for: Provided, however, That if within the said period a general election is scheduled to be held, the special election shall be held simultaneously with such general election. (Emphasis supplied)
Section 4 of Republic Act No. 7166 subsequently amended Section 2 of R.A. No. 6645, as follows:
Postponement, Failure of Election and Special Elections. x x x In case a permanent vacancy shall occur in the Senate or House of Representatives at least one (1) year before the expiration of the term, the Commission shall call and hold a special election to fill the vacancy not earlier than sixty (60) days nor longer than ninety (90) days after the occurrence of the vacancy. However, in case of such vacancy in the Senate, the special election shall be held simultaneously with the next succeeding regular election. (Emphasis supplied)
Thus, in case a vacancy arises in Congress at least one year before the expiration of the term, Section 2 of R.A. No. 6645, as amended, requires COMELEC: (1) to call a special election by fixing the date of the special election, which shall not be earlier than sixty (60) days nor later than ninety (90) after the occurrence of the vacancy but in case of a vacancy in the Senate, the special election shall be held simultaneously with the next succeeding regular election; and (2) to give notice to the voters of, among other things, the office or offices to be voted for. Did COMELEC, in conducting the special senatorial election simultaneously with the 14 May 2001 regular
elections, comply with the requirements in Section 2 of R.A. No. 6645? A survey of COMELECs resolutions relating to the conduct of the 14 May 2001 elections reveals that they contain nothing which would amount to a compliance, either strict or substantial, with the requirements in Section 2 of R.A. No. 6645, as amended. Thus,
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nowhere in its resolutions or even in its press releases did COMELEC state that it would hold a special election for a single three-year term Senate seat simultaneously with the regular elections on 14 May 2001. Nor did COMELEC give formal notice that it would proclaim as winner the senatorial candidate receiving the 13th highest number of votes in the special election. The controversy thus turns on whether COMELECs failure, assuming it did fail, to comply with the requirements in Section 2 of R.A. No. 6645, as amended, invalidated the conduct of the special senatorial election on 14 May 2001 and accordingly rendered Honasans proclamation as the winner in that special election void. More precisely, the question is whether the special election is invalid for lack of a call for such election and for lack of notice as to the office to be filled and the manner by which the winner in the special election is to be determined. For reasons stated below, the Court answers in the negative. COMELECs Failure to Give Notice of the Time of the Special Election Did Not Negate the Calling of such Election The calling of an election, that is, the giving notice of the time and place of its occurrence, whether made by the legislature directly or by the body with the duty to give 26 such call, is indispensable to the elections validity. In a general election, where the law fixes the date of the election, the election is valid without any call by the body 27 charged to administer the election.
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24
24
25
E.g. Resolution No. 3258, dated 28 September 2000 (providing for
the calendar of activities and periods of prohibited acts in connection with the 14 May 2001 elections as amended by Resolution Nos. 3322,
dated 5 October 2000; 3284, dated 20 October 2000; 3306, dated 7 November 2000, 3426, dated 22 December 2000; and 3359 dated ___ February 2001); Resolution No. 3632, dated 1 March 2001 (canceling the certificates of candidacy of nuisance senatorial candidates); and Resolution No. 3743, dated 12 March 2001 (providing for the general instructions to the Boards of Election Inspectors on the casting and counting of votes).
25
E.g. undated COMELEC pamphlet entitled Frequently Asked 26 A.M. JUR. 2d Elections 281 (1996), 29 C.J.S. Elections 70 Ibid; ibid. 457
Questions on the May 14, 2001 Elections.

26
(1965).
27
457
In a special election to fill a vacancy, the rule is that a statute that expressly provides that an election to fill a vacancy shall be held at the next general elections fixes the date at which the special election is to be held and operates as the call for that election. Consequently, an election held at the time thus prescribed is not invalidated by the fact that the body charged28by law with the duty of calling the election failed to do so. This is because the right and duty to hold the election emanate from the statute and not from 29 any call for the election by some authority and the law thus charges voters with knowledge of the time and place 30 of the election. Conversely, where the law does not fix the time and place for holding a special election but empowers some authority to fix the time and place after the happening of a condition precedent, the statutory provision on the giving of notice is considered mandatory, and failure to do so will 31 render the election a nullity. In the instant case, Section 2 of R.A. No. 6645 itself provides that in case of vacancy in the Senate, the special election to fill such vacancy shall be held simultaneously with the next succeeding regular election. Accordingly, the special election to fill the vacancy in the Senate arising from Senator Guingonas appointment as Vice-President in February 2001 could not be held at any other time but must be held simultaneously with the next succeeding regular elections on 14 May 2001. The law charges the voters with knowledge of this statutory notice and COMELECs failure to give the additional notice did not negate the calling of such special election, much less
invalidate it. Our conclusion might be different had the present case involved a special election to fill a vacancy in the House of Representatives. In such a case, the holding of the special election is subject to a condition precedent, that is, the vacancy should take place at least one year before the expiration of the term. The time of the election is left to the discretion of COMELEC subject only to the limitation that it holds the special election within the range of time provided
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28 29 30 31
26 A.M. JUR. 2d Elections 282 (1996). Ibid. McCoy v. Fisher, 67 S.E. 2d 543 (1951). 26 A.M. JUR. 2d Elections 281 (1996); 29 C.J.S. Elections 70
(1965). 458
458
in Section 2 of R.A. No. 6645, as amended. This makes mandatory the requirement in Section 2 of R.A. No. 6645, as amended, for COMELEC to call x x x a special election x x x not earlier than 60 days nor longer than 90 days after the occurrence of the vacancy and give notice of the office to be filled. The COMELECs failure to so call and give notice will nullify any attempt to hold a special election to fill the vacancy. Indeed, it will be well-nigh impossible for the voters in the congressional district involved to know the time and place of the special election and the office to be filled unless the COMELEC so notifies them. No Proof that COMELECs Failure to Give Notice of the Office to be Filled and the Manner of Determining the Winner in the Special Election Misled Voters The test in determining the validity of a special election in relation to the failure to give notice of the special election is whether the want of notice has resulted in misleading a sufficient number of voters as would change the result of the special election. If the lack of official notice misled a substantial number of voters who wrongly believed that there was no special election to fill a vacancy, a choice by a
32
small percentage of voters would be void. The required notice to the voters in the 14 May 2001 special senatorial election covers two matters. First, that COMELEC will hold a special election to fill a vacant single three-year term Senate seat simultaneously with the regular elections scheduled on the same date. Second, that COMELEC will proclaim as winner the senatorial candidate receiving the 13th highest number of votes in the special election. Petitioners have neither claimed nor proved that COMELECs failure to give this required notice misled a sufficient number of voters as would change the result of the special senatorial election or led them to believe that there was no such special election. Instead, what petitioners did is conclude that since COMELEC failed to give such notice, no special election took place. This bare assertion carries no value. Section 2 of R.A. No. 6645, as amended,
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32
See 26 A.M. JUR. 2d Elections 292 (1996), 29 C.J.S. Elections
72 (1965). 459
459
charged those who voted in the elections of 14 May 2001 with the knowledge that the vacancy in the Senate arising from Senator Guingonas appointment as Vice-President in February 2001 was to be filled in the next succeeding regular election of 14 May 2001. Similarly, the absence of formal notice from COMELEC does not preclude the possibility that the voters had actual notice of the special election, the office to be voted in that election, and the manner by which COMELEC would determine the winner. Such actual notice could come from many sources, such as media reports of the enactment of R.A. No. 6645 and 33 election propaganda during the campaign. More than 10 million voters cast their votes in favor of Honasan, the party who stands most prejudiced by the instant petition. We simply cannot disenfranchise those who voted for Honasan, in the absence of proof that COMELECs omission prejudiced voters in the exercise of their right of suffrage so as to negate the holding of the special election. Indeed, this Court is loathe to annul elections and will only do so when it is impossible to
distinguish what votes are lawful and what are unlawful, or to arrive at any certain result whatever, or that the great body of the voters have been prevented by violence, 34 intimidation, and threats from exercising their franchise.
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33
Indeed, the fact that 13 senators were due to be elected in the 14
May 2001 elections and that the senator elected to the 13th place will serve the remaining term of Senator Guingona was published in news reports ( see Philippine Star, 9 February 2001, pp. 1, 6 and Daily Tribune, 9 February 2001, pp. 1, 8; Philippine Daily Inquirer, 12 February 2001, pp. 1, 10; 14 February 2001, pp. 1, A20; Today, 8 February 2001, p. 10; Manila Bulletin, 9 February 2001, pp. 3, 8). Furthermore, the fact that the administration and opposition coalitions each fielded 13 senatorial candidates (and not only 12) was similarly given extensive coverage by news publications ( see Philippine Daily Inquirer, 12 February 2001, pp. 1, 10; 13 February 2001, pp. 1, A14; 14 February 2001, pp. 1, A20; Philippine Star, 13 February 2001, pp. 1, 4; 14 February 2001, pp. 1, 6; Today, 9 February 2001, pp. 1, 4; 12 February 2001, pp. 1, 10, 13 February 2001, pp. 1, 10; Manila Standard, 13 February 2001, pp. 1, 2; Malaya, 13 February 2001, pp. 1, 6; 14 February 2001, pp. 1, 4; Daily Tribune, 14 February 2001, pp. 1, 6; Manila Times, 14 February 2004, pp. 1, 2A; Philippine Star Ngayon, 13 February 2001, pp. 1, 4).
34
Florendo, Sr. vs. Buyser, 129 Phil. 353; 21 SCRA 1106 (1967);
Capalla v. Tabiana, 63 Phil. 95 (1936); Kiamzon v. Pugeda, 54 Phil. 755 460
460
Otherwise, the consistent rule has been to respect the electorates will and let the results of the election stand, despite irregularities that may have attended the conduct 35 of the elections. This is but to acknowledge the purpose and role of elections in a democratic society such as ours, which is:
to give the voters a direct participation in the affairs of their government, either in determining who shall be their public officials or in deciding some question of public interest; and for that purpose all of the legal voters should be permitted, unhampered and unmolested, to cast their ballot. When that is done and no frauds have been committed, the ballots should be counted and the election should not be declared null. Innocent
voters should not be deprived of their participation in the affairs of their government for mere irregularities on the part of the election officers, for which they are in no way responsible. A different rule would make the manner and method of performing a public duty of 36 (Emphasis in the greater importance than the duty itself. original)
_______________ (1930); Cailles v. Gomez, 42 Phil. 852 (1924). Batas Pambansa Blg. 881, as amended, (Omnibus Election Code), on failure of elections (resulting to the annulment of elections), provides: SEC. 6. Failure of election. If, on account of force majeure, violence, terrorism, fraud, or other analogous causes the election in any polling place had not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by an interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect.
35
Alcala v. Commission on Elections, 218 Phil. 322; 133 SCRA 352
(1984); Villareal v. Fornier, 84 Phil. 756 (1949); Lucero v. De Guzman, 45 Phil. 852 (1924).
36
Lino Luna vs. Rodriguez, 39 Phil. 208 (1918). 461
461
Separate Documentation and Canvassing not Required under Section 2 of R.A. No. 6645 Neither is there basis in petitioners claim that the manner by which COMELEC conducted the special senatorial election on 14 May 2001 is a nullity because COMELEC failed to document separately the candidates and to canvass separately the votes cast for the special election. No such requirements exist in our election laws. What is mandatory under Section 2 of R.A. No. 6645 is that
COMELEC fix the date of the election, if necessary, and state, among others, the office or offices to be voted for. Similarly, petitioners reliance on Section 73 of B.P. Blg. 881 on the filing of certificates of candidacy, and on Section 4(4) of R.A. No. 6646 on the printing of election returns and tally sheets, to support their claim is misplaced. These provisions govern elections in general and in no way require separate documentation of candidates or separate canvass of votes in a jointly held regular and special elections. Significantly, the method adopted by COMELEC in conducting the special election on 14 May 2001 merely implemented the procedure specified by the Senate in Resolution No. 84. Initially, the original draft of Resolution No. 84 as introduced by Senator Francisco Tatad (Senator Tatad) made no mention of the manner by which the seat vacated by former Senator Guingona would be filled. However, upon the suggestion of Senator Raul Roco (Senator Roco), the Senate agreed to amend Resolution No. 84 by providing, as it now appears, that the senatorial candidate garnering the thirteenth (13th) highest number of votes shall serve only for the unexpired term of former Senator Teofisto T. Guingona, Jr. Senator Roco introduced the amendment to spare COMELEC and the candidates needless expenditures and the voters further inconvenience, thus: S[ENATOR] T[ATAD]. Mr. President, I move that we now consider Proposed Senate Resolution No. 934 [later converted to Resolution No. 84]. T[HE] P[RESIDENT]. Is there any objection? [Silence] There being none, the motion is approved. Consideration of Proposed Senate Resolution No. 934 is now in order. With the permission of the Body, the Secretary will read only the title and text of the resolution. T[HE] S[ECRETARY]. Proposed Senate Resolution No. 934 entitled
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RESOLUTION CERTIFYING TO THE EXISTENCE OF A VACANCY IN THE SENATE AND CALLING ON THE COMMISSION ON ELECTIONS (COMELEC) TO FILL UP SUCH VACANCY THROUGH ELECTION TO BE HELD SIMULTANEOUSLY WITH THE REGULAR
ELECTION ON MAY 14, 2001 AND THE SENATOR THUS ELECTED TO SERVE ONLY FOR THE UNEXPIRED TERM
WHEREAS, the Honorable Teofisto T. Guingona, Jr. was elected Senator of the Philippines in 1998 for a term which will expire on June 30, 2004; WHEREAS, on February 6, 2001, Her Excellency President Gloria Macapagal Arroyo nominated Senator Guingona as VicePresident of the Philippines; WHEREAS, the nomination of Senator Guingona has been confirmed by a majority vote of all the members of both House of Congress, voting separately; WHEREAS, Senator Guingona will take his Oath of Office as Vice-President of the Philippines on February 9, 2001; WHEREAS, Republic Act No. 7166 provides that the election for twelve (12) Senators, all elective Members of the House of Representatives, and all elective provincial city and municipal officials shall be held on the second Monday and every three years thereafter; Now, therefore, be it RESOLVED by the Senate, as it is hereby resolved, to certify, as it hereby certifies, the existence of a vacancy in the Senate and calling the Commission on Elections (COMELEC) to fill up such vacancy through election to be held simultaneously with the regular election on May 14, 2001 and the Senator thus elected to serve only for the unexpired term. Adopted, (Sgd.) FRANCISCO S. TATAD Senator
S[ENATOR] T[ATAD]. Mr. President, I move for the adoption of this resolution. S[ENATOR] O[SMEA] J). Mr. President. T[HE] P[RESIDENT]. Sen. John H. Osmea is recognized. S[ENATOR] O[SMEA] (J). Thank you, Mr. President. Will the distinguished Majority Leader, Chairman of the Committee on Rules, author of this resolution, yield for a few questions? S[ENATOR] T[ATAD]. With trepidation, Mr. President. [Laughter] S[ENATOR] O[SMEA] (J). What a way of flattery. [Laughter]
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Mr. President, I think I recall that sometime in 1951 or 1953, there was a special election for a vacant seat in the Senate. As a matter of fact, the one who was elected in that special election was then Congressman, later Senator Feli[s]berto Verano. In that election, Mr. President, the candidates contested the seat. In other words, the electorate had to cast a vote for a ninth senatorbecause at that time there were only eightto elect a member or rather, a candidate to that particular seat. Then I remember, Mr. President, that when we ran after the EDSA revolution, twice there were 24 candidates and the first 12 were elected to a six-year term and the next 12 were elected to a three-year term. My question therefore is, how is this going to be done in this election? Is the candidate with the 13th largest number of votes going to be the one to take a three-year term? Or is there going to be an election for a position of senator for the unexpired term of Sen. Teofisto Guingona? S[ENATOR] T[ATAD].Mr. President, in this resolution, we are leaving the mechanics to the Commission on Elections. But personally, I would like to suggest that probably, the candidate obtaining the 13th largest number of votes be declared as elected to fill up the unexpired term of Senator Guingona. S[ENATOR] O[SMEA] (J).Is there a law that would allow the Comelec to conduct such an election? Is it not the case that the vacancy is for a specific office? I am really at a loss. I am rising here because I think it is something that we should consider. I do not know if we can . . . No, this is not a Concurrent Resolution. S[ENATOR] T[ATAD].May we solicit the legal wisdom of the Senate President. T[HE] P[RESIDENT].May I share this information that under Republic Act No. 6645, what is needed is a resolution of this Chamber calling attention to the need for the holding of a special election to fill up the vacancy created, in this particular case, by the appointment of our colleague, Senator Guingona, as Vice President. It can be managed in the Commission on Elections so that a slot for the particular candidate to fill up would be that reserved for Mr. Guingonas unexpired term. In other words, it can be arranged in such a manner. xxxx S[ENATOR] R[OCO].Mr. President. T[HE] P[RESIDENT].Sen. Raul S. Roco is recognized. S[ENATOR] R[OCO].May we suggest, subject to a one-
minute caucus, wordings to the effect that in the simultaneous elections, the 13th placer be therefore deemed to be the special election for this purpose. So we
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just nominate 13 and it is good for our colleagues. It is better for the candidates. It is also less expensive because the ballot will be printed and there will be less disfranchisement. T[HE] P[RESIDENT].That is right. S[ENATOR] R[OCO].If we can just deem it therefore under this resolution to be such a special election, maybe, we satisfy the requirement of the law. T[HE] P[RESIDENT].Yes. In other words, this shall be a guidance for the Comelec. S[ENATOR] R[OCO].Yes. T[HE] P[RESIDENT].to implement. S[ENATOR] R[OCO].Yes. The Comelec will not have the flexibility. T[HE] P[RESIDENT].That is right. S[ENATOR] R[OCO].We will already consider the 13th placer of the forthcoming elections that will be held simultaneously as a special election under this law as we understand it. T[HE] P[RESIDENT].Yes. That will be a good compromise, Senator Roco. S[ENATOR] R[OCO].Yes. So if the sponsor can introduce that later, maybe it will be better, Mr. President. T[HE] P[RESIDENT].What does the sponsor say? S[ENATOR] T[ATAD].Mr. President, that is a most satisfactory proposal because I do not believe that there will be anyone running specifically T[HE] P[RESIDENT].Correct. S[ENATOR] T[ATAD].to fill up this position for three years and campaigning nationwide. T[HE] P[RESIDENT].Actually, I think what is going to happen is the 13th candidate will be running with specific groups. S[ENATOR] T[ATAD].Yes. Whoever gets No. 13. T[HE] P[RESIDENT].I think we can specifically define that as the intent of this resolution. S[ENATOR] T[ATAD].Subject to style, we accept that amendment and if there will be no other amendment, I move for the adoption of this resolution.
xxxx
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VOL. 420, JANUARY 21, 2004 Tolentino vs. Commission on Elections ADOPTION OF S. RES. NO. 934
465
If there are no other proposed amendments, I move that we adopt this resolution. T[HE] P[RESIDENT]. There is a motion to adopt this resolution. Is there any objection? [Silence] There being 37 none, the motion is approved. Evidently, COMELEC, in the exercise of its discretion to use means and methods to conduct the special election within the confines of R.A. No. 6645, merely chose to adopt the Senates proposal, as embodied in Resolution No. 84. This Court has consistently acknowledged and affirmed COMELECs wide latitude of discretion in adopting means to carry out its mandate of ensuring free, orderly, and honest elections subject only to the limitation that the means so adopted are not illegal or do not constitute grave 38 abuse of discretion. COMELECs decision to abandon the means it employed in the 13 November 1951 and 8 November 1955 special elections and adopt the method embodied in Resolution No. 84 is but a legitimate exercise of its discretion. Conversely, this Court will not interfere should COMELEC, in subsequent special senatorial elections, choose to revert to the means it followed in the 13 November 1951 and 8 November 1955 elections. That COMELEC adopts means that are novel or even disagreeable is no reason to adjudge it liable for grave abuse of discretion. As we have earlier noted:
The Commission on Elections is a constitutional body. It is intended to play a distinct and important part in our scheme of government. In the discharge of its functions, it should not be hampered with restrictions that would be fully warranted in the case of a less responsible organization. The Commission may err, so may this Court also. It should be allowed considerable latitude in devising means and methods that will insure the accomplishment of the great objective for which it was created free, orderly and honest elections. We may not agree fully with its choice of means, but unless these are clearly illegal or constitute 39 gross abuse of discretion, this court should not interfere.
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37
Transcript of Session Proceedings of the Philippine Senate, 8 E.g. Cauton v. Commission on Elections, 126 Phil. 291; 19 SCRA Pugutan v. Abubakar, 150 Phil. 1; 43 SCRA 1 (1972) citing
February 2001, pp. 49-54. (Emphasis supplied)

38
911 (1967).
39
Sumulong v. Commission on Elections, 73 Phil. 237 (1941). 466
466
A Word to COMELEC The calling of a special election, if necessary, and the giving of notice to the electorate of necessary information regarding a special election, are central to an informed exercise of the right of suffrage. While the circumstances attendant to the present case have led us to conclude that COMELECs failure to so call and give notice did not invalidate the special senatorial election held on 14 May 2001, COMELEC should not take chances in future elections. We remind COMELEC to comply strictly with all the requirements under applicable laws relative to the conduct of regular elections in general and special elections in particular. WHEREFORE, we DISMISS the petition for lack of merit. SO ORDERED. Panganiban, Quisumbing, Sandoval-Gutierrez, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr. and Azcuna, JJ., concur. Davide, Jr., C.J., I join Mr. Justice Puno in his dissent. Puno, J., Pls. see Dissent. Vitug, J., I join the dissent. Ynares-Santiago, J., I join J. Punos Dissent. Tinga, J., I join Justice Punos dissent.
DISSENTING OPINION PUNO, J. :
The case at bar transcends the political fortunes of respondent Senator Gregorio B. Honasan. At issue is the right of the people to elect their representatives on the basis and only on the basis of an informed judgment. The issue strikes at the heart of democracy and representative government for without this right, the sovereignty of the people is a mere chimera and the rule of the majority will be no more than mobocracy. To clarify and sharpen the issue, I shall first unfurl the facts.
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VOL. 420, JANUARY 21, 2004 Tolentino vs. Commission on Elections I. Facts
467
The facts are undisputed. In February 2001, a Senate seat for a term expiring on June 30, 2004 was vacated with the appointment of then Senator Teofisto Guingona, Jr. as Vice-President of the Philippines. The Senate adopted Resolution No. 84 certifying the existence of a vacancy in the Senate and calling the Commission on Elections (COMELEC) to fill up such vacancy through election to be held simultaneously with the regular election on May 14, 2001, and the senatorial candidate garnering the thirteenth (13th) highest number of votes shall serve only for the unexpired term of former Senator Teofisto T. Guingona, Jr. In the deliberations of the Senate on the resolution, the body agreed that the procedure it adopted for determining the winner in the special election was for the guidance and implementation of the COMELEC. The COMELEC had no discretion to alter the procedure. Nobody filed a certificate of candidacy to fill the position of senator to serve the unexpired three-year term in the special election. All the senatorial candidates filed the certificates of candidacy for the twelve regular Senate seats to be vacated on June 30, 2001 with a six-year term expiring on June 30, 2007. COMELEC distributed nationwide official documents such as the Voter Information Sheet, List of Candidates and Sample Ballot. The List of Candidates did not indicate a separate list of candidates for the special election. The Sample Ballot and the official ballots did not provide two different categories of Senate seats to be voted, namely the twelve regular sixyear term seats and the single three-year term seat. Nor did the ballots provide a separate space for the candidate to be voted in the special election and instead provided
thirteen spaces for thirteen senatorial seats. Without any COMELEC resolution or notice on the time, place and manner of conduct of the special election, the special election for senator was held on the scheduled May 14, 2001 regular elections. A single canvass of votes for a single list of senatorial candidates was done. On June 5, 2001, respondent COMELEC promulgated COMELEC Resolution No. NBCO1-005, the dispositive portion of which reads, viz. :
NOW, THEREFORE, by virtue of the powers vested in it under the Constitution, Omnibus Election Code and other election laws, the Commission on Elections sitting En Banc as the National Board of Canvassers hereby proclaims the above-named thirteen (13) candidates as the duly
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468
elected Senators of the Philippines in the May 14, 2001 elections. Based on the Certificates of Canvass finally tabulated, the first twelve (12) Senators shall serve for a term of six (6) years and the thirteenth (13th) Senator shall serve the unexpired term of three (3) years of Senator Teofisto T. Guingona, Jr., who was appointed Vice-President of the Philippines pursuant to Section 9, Article VII of the Constitution, in relation to Section 9, Article VI thereof, as implemented under Republic Act No. 6645. (emphasis supplied)
On June 21, 2001, petitioners filed with the Court their petition for prohibition to stop respondent COMELEC from proclaiming any senatorial candidate in the May 14, 2001 election as having been elected for the lone senate seat for a three-year term. Copies of the petition were served on respondent COMELEC twice, first on June 20, 2001 by registered mail, and second on June 21, 2001, by personal delivery of petitioner Mojica. On June 26, 2001 the Court issued a Resolution requiring respondent COMELEC to comment within ten days from notice. Even before filing its comment, respondent COMELEC issued Resolution No. NBC-01-006 on July 20, 2001, the dispositive portion of which reads, viz. :
NOW, THEREFORE, by virtue, of the powers vested in it under the Constitution, Omnibus Election Code and other election laws, the Commission on Elections sitting as the National Board of Canvassers hereby DECLARES official and final the above ranking of the proclaimed 13 Senators of the Philippines in relation to NBC
Resolution No. 01-005 promulgated June 5, 2001.
Resolution No. NBC-01-006 indicates the following ranking of the 13 Senators with the corresponding votes they garnered as of June 20, 2001: 1. De Castro, Noli L. 2. Flavier, Juan M. 3. Osmea, Sergio II R. 4. Drilon, Franklin M. 5. Arroyo, Joker P. 6. Magsaysay, Ramon, Jr. B. 7. Villar, Manuel, Jr. B. 8. Pangilinan, Francis N. 9. Angara, Edgardo J. 10. Lacson, Panfilo M. 11. Ejercito-Estrada, Luisa P. 12. Recto, Ralph 13. Honasan, Gregorio 16,237,386 11,735,897 11,593,389 11,301,700 11,262,402 11,250,677 11,187,375 10,971,896 10,805,177 10,535,559 10,524,130 10,498,940 10,454,527
469
469
On the day of its promulgation, respondent COMELEC forwarded Resolution No. NBC-01-006 to the President of the Senate. On July 23, 2001, the thirteen senators, inclusive of respondents Honasan and Recto, took their oaths of office before the Senate President. With the turn of events after the filing of the petition on June 20, 2001, the Court ordered petitioners on March 5, 2002 and September 17, 2002 to amend their petition. In their, amended petition, petitioners assailed the manner by which the special election was conducted citing as precedents the 1951 and 1955 special senatorial elections for a two-year term which were held simultaneously with the regular general elections for senators with six year terms, viz. :
(a) A vacancy in the Senate was created by the election of Senator Fernando Lopez as Vice-President in the 1949 elections. A special election was held in November 1951 to elect his successor to the vacated Senate position for a term to expire on 30 December 1953. Said special election was held simultaneously with the regular
election of 1951. A separate space in the official ballot was provided for Senatorial candidates for the two year term; moreover, the candidates for the single Senate term for two years filed certificates of candidacy separate and distinct from those certificates of candidacy filed by the group of Senatorial candidates for the six year term. (. . . the votes for the twenty (20) candidates who filed certificates of candidacy for the eight Senate seats with six year terms were tallied and canvassed separately from the votes for the five candidates who filed certificates of candidacy for the single Senate seat with a two year term . . .) x x x x x x x x x (b) Again, a vacancy was created in the Senate by the election of then Senator Carlos P. Garcia to the Vice Presidency in the 1953 presidential elections. A special election was held in November 1955 to elect his successor to the vacated Senatorial position for a two year term expiring on 30 December 1957. Said special election for one senator to fill the vacancy left by the Honorable Carlos Garcia was held in November 1955 simultaneously with the regular election for eight Senate seats with a six year term. Here, separate spaces were provided for in the official ballot for the single Senate seat for the two year term as differentiated from the eight Senate seats with six year terms. The results as recorded by Senate official files show that votes for the candidates for the Senate seat with a two-year term were sepa470
470
rately tallied from the votes for the candidates for the eight Senate 1 seats with six-year term . . . (emphases supplied)
Petitioners thus pray that the Court declare the following: (a) that no special election was conducted by respondent COMELEC for the single Senate seat with a three year term in the 14 May 2001 election. (b) null and void respondent COMELECs Resolutions No. NBC01-005 dated 5 June 2001 and NBC01-006 dated 20 July 2001 for having been promulgated without any legal authority at all insofar as said resolutions proclaim the Senatorial candidate who obtained the thirteenth highest number of votes canvassed during the 14 May 2001 election as a 2 duly elected Senator.
Respondents filed their respective, comments averring the following procedural flaws: (1) the Court has no jurisdiction over the petition for quo warranto ; (2) the petition is moot; and (3) the petitioners have no standing to litigate. On the merits, they all defend the validity of the special election on the ground that the COMELEC had discretion to determine the manner by which the special election should be conducted and that the electorate was aware of the method the COMELEC had adopted. Moreover, they dismiss the deviations from the election laws with respect to the filing of certificates of candidacy for the special elections and the failure to provide in the official ballot a space for the special election vote separate from the twelve spaces for the regular senatorial election votes as inconsequential. They claim that these laws are merely directory after the election. II. Issues The issues for resolution are procedural and substantive. I shall limit my humble opinion to the substantive issue of whether a special election for the single Senate seat with a three-year term was validly held simultaneous with the general elections on May 14, 2001.
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1 2
Rollo, pp. 93-96; Amended Petition, pp. 8-11. Rollo, pp. 100-101; Amended Petition, pp. 15-16. 471
VOL. 420, JANUARY 21, 2004 Tolentino vs. Commission on Elections III. Laws on the Calling of Special Elections
471
Section 9, Article VI of the 1987 Constitution provides for the filling of a vacancy in the Senate and House of Representatives, viz. :
Sec. 9. In case of vacancy in the Senate or in the House of Representatives, a special election may be called to fill such vacancy in the manner prescribed by law, but the Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term.
Congress passed R.A. No. 6645, An Act Prescribing the Manner of Filling a Vacancy in the Congress of the
Philippines, to implement this constitutional provision. The law provides, viz. :

SECTION 1. In case a vacancy arises in the Senate at least eighteen (18) months or in the House of Representatives at least one (1) year before the next regular election for Members of Congress, the Commission on Elections, upon receipt of a resolution of the Senate or the House of Representatives, as the case may be, certifying to the existence of such vacancy and calling for a special election, shall hold a special election to fill such vacancy. If the Congress is in recess, an official communication on the existence of the vacancy and call for a special election by the President of the Senate or by the Speaker of the House of Representatives, as the case may be, shall be sufficient for such purpose. The Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term. SECTION 2. The Commission on Elections shall fix the date of the special election, which shall not be earlier than forty-five (45) days nor later than ninety (90) days from the date of such resolution or communication, stating among other things, the office or offices to be voted for: Provided, however, That if within the said period a general election is scheduled to be held, the special election shall be held simultaneously with such general election. SECTION 3. The Commission on Elections shall send copies of the resolution, in number sufficient for due distribution and publication, to the Provincial or City Treasurer of each province or city concerned, who in turn shall publish it in their respective localities by posting at least three copies thereof in as many conspicuous places in each of their election precincts, and a copy in each of the polling places and public markets, and in the municipal buildings. (emphasis supplied)
R.A. No. 6645 was amended in 1991 by R.A. No. 7166 which provides in Section 4, viz. :
472
472
SECTION 4. Postponement, Failure of Election and Special Election. The postponement, declaration of failure of election and the calling of special elections as provided in Sections 5, 6, and 7 of the Omnibus Election Code shall be decided by the Commission sitting en banc by a majority vote of its members . . . In case a permanent vacancy shall occur in the Senate or House of Representatives at least one (1) year before the expiration of the term, the Commission shall call and hold a special election to fill
the vacancy not earlier than sixty (60) days nor longer than ninety (90) days after the occurrence of the vacancy. However, in case of such vacancy in the Senate, the special election shall be held simultaneously with the next succeeding regular election. (emphases supplied)
IV. Democracy and Republicanism The shortest distance between two points is a straight line. In this case of first impression, however, the distance between existing jurisprudence and the resolution of the issue presented to the Court cannot be negotiated through a straight and direct line of reasoning. Rather, it is necessary to journey through a meandering path and unearth the root principles of democracy, republicanism, elections, suffrage, and freedom of information and discourse in an open society. As a first step in this indispensable journey, we should traverse the democratic and republican landscape to appreciate the importance of informed judgment in elections. A. Evolution of Democracy from Plato to Locke to Jefferson and Contemporary United States of America In the ancient days , democracy was dismissed by thoughtful thinkers. Plato deprecated democracy as rule by the masses. He warned that if all the people were allowed to rule, those of low quality would dominate the state by mere numerical superiority. He feared that the more numerous masses would govern with meanness and bring about a tyranny of the majority. Plato predicted that democracies would be short-lived as the mob would inevitably surrender its power to a single tyrant, and put an end to popular government. Less jaundiced than Plato was Aristotles view towards democracy. Aristotle agreed that under certain conditions, the will of the many could be equal to or even wiser than the judgment of the few. When the many governed for the good of all, Aristotle admitted that democracy is a good form of government. But still and all, Aristotle preferred a rule of the upper class as
473
473
against the rule of the lower class. He believed that the upper class could best govern for they represent people of the greatest refinement and quality.
In the Middle Ages , Europe plunged when the Roman Empire perished. Europe re-emerged from this catastrophe largely through reliance on the scientific method which ultimately ushered the Industrial Revolution. Material success became the engine which drove the people to search for solutions to their social, political and economic problems. Using the scythe of science and reason, the thinkers of the time entertained an exaggerated notion of individualism. They bannered the idea that all people were equal ; no one had a greater right to rule than another. Dynastical monarchy was taboo. As all were essentially equal, no one enjoyed the moral right to govern another without the consent of the governed. The people therefore were the source of legitimate legal and political authority. This theory of popular sovereignty revived an interest in democracy in the seventeenth century. The refinements of the grant of power by the people to the government led to the social contract theory: that is, the social contract is the act of people exercising their sovereignty and creating a 3 government to which they consent. Among the great political philosophers who spurred the evolution of democratic thought was John Locke (16321704). In 1688, the English revolted against the Catholic tyranny of James II, causing him to flee to France. This Glorious Revolution , called such because it was almost bloodless, put to rest the long struggle between King and Parliament in England. The revolution reshaped the English government and ultimately brought about democracy in England. John Locke provided the philosophical phalanx to the Glorious Revolution . For this purpose, he wrote his Second Treatise of Government, his work with the most political impact. In his monumental treatise, Locke asserted that the basis of political society is a contract whereby individuals consent to be bound by the laws of a common authority known as civil government. The objective of this social contract is the protection of the individuals natural rights to life, liberty and property which are inviolable and enjoyed by them
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3
Baradat, L. Political Ideologies: Their Origins and Impact (Sixth
Ed., 1997), pp. 65-67. 474
474
Tolentino vs. Commission on Elections in the state of nature before the formation of all social and 4 political arrangements. Locke thus argues that legitimate political power amounts to a form of trust , a contract among members of society anchored on their own consent , and seeks to preserve their lives, liberty and property. This trust or social contract makes government legitimate and clearly defines the functions of government as concerned, above all, with the preservation of the rights of the governed. Even then, Locke believed that the people should be governed by a parliament elected by citizens who owned property . Although he argued that the people were sovereign, he submitted that they should not rule directly . Members of parliament represent their constituents and should vote as their constituents wanted. The governments sole reason for being was to serve the individual by protecting his rights and liberties. Although Lockes ideas were liberal, they fell short of the ideals of democracy. He spoke of a middle-class revolution at a time when the British government was controlled by the aristocracy. While he claimed that all people were equally possessed of natural rights, he advocated that political power be devolved only to embrace the middle class by giving Parliament, which was controlled through the House of Commons, the right to limit the monarchical power. He denied political power to the poor; they were bereft of the right to elect members of Parliament. Locke influenced Thomas Jefferson, the eminent statesman and philosopher of the (American) revolution and of the first constitutional order which free men were 5 permitted to establish. But although Jefferson espoused Lockes version of the social contract and natural law, he had respect for the common people and participatory government. Jefferson believed that the people, including the ordinary folk, were the only competent guardians of their own liberties, and should thus control their government. Discussing the role of the people in a republic, Jefferson wrote to Madison from France in 1787 that they are the only sure reliance for the preservation of our 6 liberties.
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4 5
Jones. T., Modern Political Thinkers and Ideas (2002), p. 23. Patterson, C., The Constitutional Principles of Thomas Jefferson
(1953), pp. 27 and 49.
Baradat, L. Political Ideologies: Their Origi ns and Impact (Sixth
Ed., 1997), pp. 101-104. 475
475
The wave of liberalism from Europe notwithstanding, a much more conservative, less democratic, and more paternalistic system of government was originally adopted in the United States. The nations founders created a government in which power was much more centralized than it had been under the Articles of Confederation and they severely restricted popular control over the 7 government. Many of the delegates to the Constitutional Convention of 1787 adhered to Alexander Hamiltons view that democracy was little more than legitimized mob rule, a constant threat to personal security, liberty and property. Thus, the framers sought to establish a constitutional republic, in which public policy would be made by elected representatives but individual rights were protected from the tyranny of transient majorities. With its several elitist elements and many limitations on majority rule, the framers Constitution had undemocratic strands. The next two centuries, however, saw8 the further democratization of the federal Constitution. The Bill of Rights was added to the American Constitution and since its passage, America had gone through a series of liberalizing eras that slowly relaxed the restraints imposed on the people by the new political order. The changing social and economic milieu mothered by industrialization 9 required political democratization. In 1787, property qualifications for voting existed and suffrage was granted only to white males. At the onset of Jacksonian democracy in the 1830s, property requirements quickly diminished and virtually became a thing of the past by the time of the Civil War. In 1870, the Fifteenth Amendment theoretically extended the franchise to African-Americans, although it took another century of struggle for the Amendment to become a reality. In 1920, the Nineteenth Amendment removed sex as a qualification for voting. The Progressive Era also saw the Seventeenth Amendment of the Constitution to provide for direct election of United States 10 senators and established procedures for initiative, referendum and recall (otherwise known as direct 11 democracy) in many states. Poll taxes were abolished as prerequi-
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7 8
Id., pp. 101-104. Stephens, O. and Scheb, J. II, American Constitutional Law , 2nd Baradat, L., supra, pp. 101-104. Stephens, O. and Scheb, J. II, supra, p. 817. Baradat, L., supra, pp. 101-104. 476
ed. (1999), p. 817.

9 10 11
476
sites for voting in federal elections through the TwentyFourth Amendment in 1964. Finally, the voting age was lowered to eighteen with 12 the ratification of the TwentySixth Amendment in 1971. B. Constitutional History of Democracy and Republicanism in the Philippines The Malolos Constitution was promulgated on January 21, 1899 by the short-lived Revolutionary Government headed by Emilio Aguinaldo after the Declaration of Independence from Spain on June 12, 1898. Article 4 of the Constitution declared the Philippines a Republic, viz. :
Art. 4. The government of the Republic is popular, representative, alternative, and responsible and is exercised by three distinct powers, which are denominated legislative, executive and judicial . ..
Shortly after the promulgation of the Malolos Constitution, the Philippines fell under American rule. The Americans adopted the policy of gradually increasing the autonomy of 13 the Filipinos before granting their independence. In 1934, the U.S. Congress passed the Tydings-McDuffie Law x x x the last of the constitutional landmarks studding the period of constitutional development of the Filipino people under the American regime before the final grant of 14 Philippine independence. Under this law, the American government authorized the Filipino people to draft a constitution in 1934 with the requirement that the constitution formulated and drafted shall be republican in 15 form. In conformity with this requirement, Article II, Section 1 of the 1935 Philippine Constitution wasadopted, viz. :
Sec. 1. The Philippines is a republican state. Sovereignty resides in the people and all government authority emanates from them.
The delegates to the Constitutional Convention understood this form of government to be that defined by James Madison, viz. :
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12 13 14 15
Stephens, O. and Scheb, J. II, supra, p. 817. Aruego, The Framing of the Philippine Constitution (1949), p. 1. Id., p. 7. Bernas, J., The 1987 Constitution of the Republic of the
Philippines: A Commentary (2003), p. 57. 477
477
We may define a republic to be a government which derives all its power directly or indirectly from the great body of the people ; and is administered by persons holding offices during pleasure, for a limited period, or during good behavior. It is essential to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it. It is sufficient for such government that the person administering it be appointed either directly or indirectly, by the people; and that they 16 hold their appointments by either of the tenures just specified. (emphases supplied)
The 1973 Constitution adopted verbatim Article II, Section 1 of the 1935 Constitution. So did the 1987 Constitution. The delegates to the 1986 Constitutional Commission well understood the meaning of a republican government. They adopted the explanation by Jose P. Laurel in his book, Bread and Freedom, The Essentials of Popular Government viz. :
When we refer to popular government or republican government or representative government, we refer to some system of popular representation where the powers of government are entrusted to those representatives chosen directly or indirectly by the people in 17 their sovereign capacity . (emphasis supplied)
An outstanding feature of the 1987 Constitution is the expansion of the democratic space giving the people greater power to exercise their sovereignty. Thus, under the 1987 Constitution, the people can directly exercise their sovereign
authority through the following modes, namely: (1) elections; (2) plebiscite; (3) initiative; (4) recall; and (5) referendum. Through elections, the people choose the representatives to whom they will entrust the exercise of 18 powers of government. In a plebiscite, the people ratify any amendment to or revision of the Constitution and may 19 introduce amendments to the constitution. Indeed, the Constitution mandates Congress to
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16 17 18
Aruego, supra, p. 132. 4 Records of the Constitutional Commission, pp. 580-581. Cooley, A Treatise on the Constitutional Limitations , vol. II (1927), Section 2, Article XII of the 1987 Constitution provides in relevant
p. 1350.
19
part, viz.:
Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which
478
478
provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any law or part thereof passed by the Congress or local legislative body . . . It also directs Congress to enact a local government code which shall provide for effective mechanisms of recall, 20 initiative, and referendum. Pursuant to this mandate, Congress enacted the Local Government Code of 1991 which defines local initiative as the legal process whereby the registered voters of a local government unit may directly propose, enact, or amend any ordinance through an election called for the purpose. Recall is a method of removing a local official from office before the expiration of 21 his term because of loss of confidence. In a referendum, the people can approve or reject a law or an issue of 22 national importance. Section 126 of the Local Government Code of 1991 defines a local referendum as the legal process whereby the registered voters of the local government units may
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every legislative district must be represented by at least three per centum of the registered voters therein.
20
Section 3, Article X of the 1987 Constitution provides, viz.:
Sec. 3. The Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications, elections, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units.
21
Section 69 of the Local Government Code of 1991 provides, viz.:
Section 69. By Whom Exercised. The power of recall for loss of confidence shall be exercised by the registered voters of a local government unit to which the local elective official subject to recall belongs.
22
Section 25, Article XVIII of the 1987 Constitution provides, viz.:
After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, of facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting state.
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479
approve, amend or reject any ordinance enacted by the sanggunian. These Constitutional provisions on recall, initiative, and referendum institutionalized the peoples might made 23 palpable in the 1986 People Power Revolution. To capture the spirit of People Power and to make it a principle upon which Philippine society may be founded, the Constitutional Commission enunciated as a first principle in the Declaration of Principles and State Policies under Section 1, Article II of the 1987 Constitution that the Philippines is not only a republican but also a democratic state. The following excerpts from the Records of the Constitutional Commission show the intent of the Commissioners in emphasizing democratic in Section 1,
Article II, in light of the provisions of the Constitution on initiative, recall, referendum and peoples organizations: MR. SUAREZ.. . . May I call attention to Section 1. I wonder who among the members of the committee would like, to clarify this question regarding the use of the word democratic in addition to the word republican. Can the honorable members of the committee give us the reason or reasons for introducing this additional expression? Would the committee not be satisfied with the use of the word republican? What prompted it to include the word democratic? x x x x x x x x x MR. NOLLEDO.Madam President, I think as a lawyer, the Commissioner knows that one of the manifestations of republicanism is the existence of the Bill of Rights and periodic elections, which already indicates that we are a democratic state. Therefore, the addition of democratic is what we call pardonable redundancy the purpose being to emphasize that our country is republican and democratic at the same time. . . In the 1935 and 1973 Constitutions, democratic does not appear. I hope the Commissioner has no objection to that word. MR. SUAREZ.No, I would not die for that. If it is redundant in character but it is for emphasis of the peoples rights, I would have no objection. I am only 24 trying to clarify the matter. ( emphasis supplied) In other portions of the Records, Commissioner Nolledo explains the significance of the word democratic, viz. :
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23 24
Garcia v. Commission on Elections, 227 SCRA 100 (1993). 4 Records of the Constitutional Commission, p. 680. 480
480
MR. NOLLEDO. I am putting the word democratic because of the provisions that we are now adopting which are covering consultations with the people. For example, we have provisions on recall, initiative, the right of the people even to participate in lawmaking and other instances that recognize the validity of interference by the people through peoples 25
organizations . . . x x x x x x x x x MR. OPLE. The Committee added the word democratic to republican, and, therefore, the first sentence states: The Philippines is a republican and democratic state. May I know from the committee the reason for adding the word democratic to republican? The constitutional framers of the 1935 and 1973 Constitutions were content with republican. Was this done merely for the sake of emphasis? MR. NOLLEDO.Madam President, that question has been asked several times, but being the proponent of this amendment, I would like the Commissioner to know that democratic was added because of the need to emphasize people power and the many provisions in the Constitution that we have approved related to recall, peoples organizations, initiative and the like, which recognize the participation of the people in policymaking in certain circumstances. MR. OPLE.I thank the Commissioner. That is a very clear answer and I think it does meet a need . . . x x x x x x x x x MR. NOLLEDO.According to Commissioner Rosario Braid, democracy here is understood as participatory 26 democracy. ( emphasis supplied) The following exchange between Commissioners Sarmiento and Azcuna is of the same import: MR. SARMIENTO. When we speak of republican democratic state, are we referring to representative democracy? MR. AZCUNA. That is right. MR. SARMIENTO. So, why do we not retain the old formulation under the 1973 and 1935 Constitutions which used the words republican state because republican state would refer to a democratic state where people choose their representatives?
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25 26
Id., p. 735. Id., p. 752. 481
481
MR. AZUNA. We wanted to emphasize the participation of the people in government. MR. SARMIENTO. But even in the concept republican state we are stressing the participation of the people. . . So the word republican will suffice to cover popular representation. MR. AZCUNA. Yes, the Commissioner is right. However, the committee felt that in view of the introduction of the aspects of direct democracy such as initiative, referendum or recall, it was necessary to emphasize the democratic portion of republicanism, of representative democracy as well. So, we want to add the word democratic to emphasize that in this new Constitution there are instances where the people would act directly, 27 and not through their representatives. ( emphasis supplied) V. Elections and the Right to Vote A. Theory The electoral process is one of the linchpins of a democratic and republican framework because it is through the act of 28 voting that government by consent is secured. Through the ballot, people express their will on the defining issues 29 of the day and they are able to choose their leaders in accordance with the fundamental principle of representative democracy that the people should elect 30 whom they please to govern them. Voting has an important instrumental value in preserving the viability of 31 constitutional democracy. It has traditionally 32 been taken as a prime indicator of democratic participation. The right to vote or of suffrage is an important political right appertaining to citizenship. Each individual qualified 33 to vote 34 is a particle of popular sovereignty. In People v. Corral, we held that
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27 28
Id., p. 769. Bogdanor, V. and Butler, D., Democracy and Elections Electotal
Systems and their Political Consequences (1983), p. 1 See also Dissenting Opinion of Justice Bernardo Pardo in Akbayan-Youth v. Commission on Elections, 355 SCRA 318 (2001), p. 359.
29 30 31 32
Baradat, L., supra, p. 134. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995). Stephens, O. and Scheb, J. II, supra, p. 816. Beetham, ed., Defining and Measuring Democracy (1994), p. 48.
33 34
Santos v. Paredes (1937). 62 Phil. 945, 948 (1936). 482
482
(t)he modern conception of suffrage is that voting is a function of government. The right to vote is not a natural right but it is a right created by law. Suffrage is a privilege granted by the State to such persons as are most likely to exercise it for the public good. The existence of the right of suffrage is a threshold for the preservation and enjoyment of all other rights that it ought to be considered as one of the 35 most sacred parts of the constitution. In Geronimo v. 36 Ramos, et al., we held that the right is among the most important and sacred of the freedoms inherent in a democratic society and one which must be most vigilantly guarded if a people desires to maintain through selfgovernment for themselves and their posterity a genuinely functioning democracy in which the individual may, in accordance with law, have a voice in the form of his government and in the choice of the people who will run 37 that government for him. The U.S. Supreme Court 38 recognized in Yick Wo v. Hopkins that voting is a fundamental political right, because 39 [it is] preservative of all rights. In Wesberry v. Sanders, the U.S. Supreme Court held that no right is more precious in a free country than that of having a voice in the election of those who make the laws, under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Voting makes government more responsive to community and individual needs and desires. Especially for those who feel disempowered and marginalized or that government is not responsive to them, meaningful access to the ballot 40 box can be one of the few counterbalances in their arsenal. Thus, elections are substantially regulated for them to be fair and honest, for order rather than chaos to 41 accompany the democratic processes. This Court has consistently ruled from as early as the oft-cited 1914 case 42 of Gardiner v. Romulo that the purpose
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35 36
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995). 136 SCRA 435 (1985).
37 38 39 40
Id., p. 446 (1985). 118 U.S. 356 (1886). 376 U.S. 1 (1964). Rodriguez, V., Section 5 of the Voting Rights Act of 1965 After
Boerne: The Beginning of the End of Preclearance ?, California Law Review (May 2003) 769, 824.
41
Anderson v. Celebrezze, Jr., 460 U S. 780 (1983), 788, citing Storer 26 Phil. 521 (1914). 483
v. Brown, 415 U.S. 724 (1974).

42
483
of election laws is to safeguard the will of the people, the purity of elections being one of the most important and fundamental requisites of popular government. We have consistently made it clear that we frown upon any interpretation of the law or the rules that would hinder in any way not only the free and intelligent casting of the votes in an election but also the correct ascertainment of the 43 results . To preserve the purity of elections, comprehensive and sometimes complex election codes are enacted, each provision of whichwhether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itselfinevitably affects 44 the individuals right to vote. As the right to vote in a free and unimpaired manner is preservative of other basic civil and political rights, Chief Justice Warren,45speaking for the U.S. Supreme Court in Reynolds v. Sims cautioned that any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized . It was to promote free, orderly and honest elections and to preserve the sanctity of the right 46to vote that the Commission on Elections was created. The 1987 Constitution mandates the COMELEC to ensure free, orderly, honest, peaceful, 47 and credible elections. B. History of Suffrage in the Philippines In primitive times, the choice of who will govern the people was not based on democratic principles. Even then, birth or strength was not the only basis for choosing the chief of the tribe. When an old chief has failed his office or committed wrong or has aged and can no longer function, the members 48 of the tribe could replace him and choose another leader. Among the Muslims, a council or ruma bechara chooses the sultan. An old sultan may appoint his succes-
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43
Rodriguez v. Commission on Elections, 119 SCRA 465 (1982). See
also Benito v. Commission on Elections, G.R. No. 106053, August 17, 1994, 235 SCRA 436 and Bince, Jr. v. Commission on Elections, 242 SCRA 273 (1995).
44 45 46 47 48
Anderson v. Celebrezze, Jr., supra, p. 788. 377 U.S. 533, 562 (1964). Cauton v. Commission on Elections, 19 SCRA 911 (1967). Section 2(4), Article IX of the 1987 Constitution. Quisumbing, L., Elections and Suffrage: From Ritual Regicide to
Human Rights? 58 Philippine Law Journal 28 (1983), citing Jocano, Phil. Prehistory (1975). ch. 8, Community Organization. Cf. Merriam, Political Power (1934), ch. 3, Law among the Outlaws . 484
484
sor, but his decision is not absolute. Among the criteria for choosing a sultan were age, blood, wealth, fidelity to 49 Islamic faith and exemplary character or personality. In times of crises, the community may choose its leader voluntarily, irrespective of social status. By consensus of the community, a serf or slave may be voted the chief on account of his ability. As far back as the Spanish regime, the Filipinos did not 50 have a general right of suffrage. It was only in the Malolos Constitution of 1899 that the right of suffrage was 51 recognized; it was a byproduct of the Filipinos struggle against the Spanish colonial government and an offshoot of Western liberal ideas on civil government and individual 52 rights. The life of the Malolos Constitution was, however, cut short by the onset of the American regime in the Philippines. But the right of suffrage was reiterated in the 53 Philippine Bill of 1902. The first general elections were held in
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49
Quisumbing,
L., supra,
citing
Interview
with
J. Kiram,
Boulevardier, Jan. 1983 issue.

50 51
Bernas, J., supra, p. 631. The Malolos Constitution provides in relevant part, viz.:
Art. 4. The government of the Republic is popular, representative, alternative, and responsible and is exercised by three distinct powers, which are
denominated legislative, executive and judicial . . . x x x x x x x x x Art. 33. The legislative power shall be exercised by an Assembly of representatives of the nation . . . Art. 34. The members of the Assembly shall represent the entire nation, and not exclusively those who elect them . . . Art. 35. No representative shall be subjected to any imperative mandate of his electors. x x x x x x x x x Art. 58. The President of the Republic shall be elected by an absolute majority of votes by the Assembly and the representatives specially meeting in a constitutive assembly.
52
Pangilinan, M.F., The Changing Meaning of Suffrage , 57 The Philippine Bill of 1902, entitled An Act to Temporarily
Philippine Law Journal 136 (1982).

53
Provide for the Administration of the Affairs of Civil Government of the Philippine Islands and for Other Purposes, provides in sections 6 and 7 for the taking of census of all inhabitants when general insurrection has ceased; and, two years from the date of the census, the calling of general elections for the members of the Philippine Assembly. 485
485
1907 under the first Philippine Election Law, Act No. 1582, which took effect on January 15, 1907. This law was elitist and discriminatory against women. The right of 55 suffrage was carried into the Jones Law of 1916. Whereas previously, the right was granted only by the Philippine Legislature and thus subject to its control, the 1935. 56 Constitution elevated suffrage to a constitutional right. It also provided for a plebiscite on the issue of whether the right of suffrage should be extended to women. On April 30, 1937, the plebiscite was held and the people voted 57 affirmatively. In the 1973 Constitution, suffrage was recognized not only as a right, but was imposed as a duty to broaden the electoral base and make democracy a reality through increased popular participation in government. The voting age was lowered, the literacy requirement 58 abolished, and absentee voting was legalized. The 1987 Constitution likewise enshrines the right of suffrage in Article V, but unlike the591973 Constitution, it is now no longer imposed as a duty. The 1948 Universal Declaration 60 of Human Rights and the 1976 Cove_______________
54
54 55
Bernas, J., supra, p. 631. The Jones Law provides in section 8 that general legislative power
except as otherwise provided, is granted to the Philippine Legislature. Section 15 provided for the qualification of electors in the elections of the senators and representatives to the Philippine Legislature.
56
Section 1, Article V of the 1935 Constitution provides in relevant
part, viz.:
Section 1. Suffrage may be exercised by male citizens of the Philippines not otherwise disqualified by law . . .
57
Section 4. Article V of the 1973 Constitution provides, viz.:
Section 4. It shall be the obligation of every citizen qualified to vote to register and cast his vote. Section 1, Article V of the 1973 Constitution provides, viz. : Section 1. Suffrage shall be exercised by all citizens of the Philippines not otherwise disqualified by law . . .
58 59
Bernas, J., supra, p. 631. Section 1, article V of the 1987 Constitution provides in relevant
part, viz.:
Section 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law . . .
60
Article 21 of the Universal Declaration of Human Rights provides,
viz.:
1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives;
486
486
nant on Civil and Political Rights suffrage.
61
also protect the right of
VI. Voter Information: Prerequisite, to a Meaningful Vote in a Genuinely Free, Orderly and Honest Elections in a Working Democracy A. Democracy, information and discourse on public matters For the right of suffrage to have a value, the electorate must be informed about public matters so that when they speak through the ballot, the knowledgeable voice and not the ignorant noise of the majority would prevail. Jefferson admonished Americans to be informed rather than enslaved by ignorance, saying that (i)f a nation expects to
be ignorant and free in a state of civilization, it expects 62 what never was and never will be. Jefferson emphasized the importance of discourse in a democracy, viz. :
_______________ 2. Everyone has the right of equal access to public service in his country; 3. The will of the people shall be the basis of the authority of government; this shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
61
Article 25 of the Covenant of Civil and Political Rights provides,
viz.:
(Every citizen shall have the right and opportunity without any of the distinctions mentioned in Art. 2 (race, color, sex, language, religion, opinion, property, birth, etc.) and without reasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) to have access, on general terms of equality, to public service in his country.
62
Levinson, J., An Informed Electorate: Requiring Broadcasters to
Provide Free Airtime to Candidates for Public Office. Boston University Law Review (January 1992), p. 143, citing Letter from Thomas Jefferson to Colonel Charles Yancey (Jan. 6, 1816), in 10 The Writings of Thomas 487
487
In every country where man is free to think and to speak, differences of opinion arise from difference of perception, and the imperfection of reason; but these differences when permitted, as in this happy country, to purify themselves by discussion, are but as passing clouds overspreading our land transiently and leaving our 63 horizon more bright and serene.
Other noted political philosophers like John Stuart Mill conceived of the marketplace of ideas as a necessary
means of testing the validity of ideas, viz. :

(N)o ones opinions deserve the name of knowledge, except so far as he has either had forced upon him by others, or gone through of himself, the same mental process which could have been required 64 of him in carrying on an active controversy with opponents.
In the same vein, political philosopher Alexander Meiklejohn , in his article Free Speech Is An Absolute, stressed that, (s)elf-government can exist only insofar as the voters acquire the intelligence, integrity, sensitivity, and generous devotion to the general welfare that, in 65 theory, casting a ballot is assumed to express. To vote intelligently,66 citizens need information about their government. Even during the diaper days of U.S. democracy, the Framers of the U.S. Constitution postulated that self-governing people should be well-informed about the workings of government to make intelligent political choices. In discussing the First Amendment, James Madison said: The right of freely examining public characters and measures, and of free communication thereon, is the only
_______________ Jefferson 4 (Paul L. Ford ed., 1899), cited in Library of Congress, Respectfully Quoted 97 (Suzy Platt ed., 1989).
63
Gatewood, C., Click Here: Web Links, Trademarks and the First
Amendment , 5 Richmond Journal of Law and Technology 12 (Spring 1999), pp. 9-10, citing Thomas Jefferson, Letter to Benjamin Waring, 1801, in 10 The Writing of Thomas Jefferson, Memorial Edition 235 (1904).
64
Id., p. 11, citing John Stuart Mill, On Liberty 82 (Legal Classics Id., p. 13. citing Alexander Meiklejohn, Free Speech Is An Bunker, M., Splichal, S., Chamberlin, B., Perry, L., supra, p. 548,
Library ed., Legal Classics 1992) (1859).

65
Absolute , 1961 Sup. Ct. Rev. 245, 255.

66
citing Meiklejohn, A., Free Speech and its Relation to Self-Government 6 (1948). 488
488
effectual guardian of every other right . . . . Thus, the United States, a representative democracy, has generally subscribed to the notion that public information and
67
participation are requirements for a representative democracy where the electorate make informed choices. The First Amendment to the U.S. Constitution, which establishes freedom of the press and speech supports this proposition. The First Amendments jealous protection of free expression is largely based on the ideas that free and open debate will generate truth and that only an informed 68 electorate can create an effective democracy. The First Amendment reflects the Frames belief that public participation in government is inherently positive. An informed citizenry is a prerequisite to meaningful participation in government. Thus, the U.S. Congress embraced this principle more concretely with the passage 69 of the Freedom of Information Act of 1966 (FOIA). The law enhanced public access to and understanding of the operation of federal agencies with respect to both the information held by them and the formulation of public 70 policy. In the leading case on the FOIA, Environmental 71 Protection Agency v. Mink, Justice Douglas, in his dissent, emphasized that the philosophy of the statute is the citizens right to be informed about what their government 72 73 is up to. In Department of Air Force v. Rose, the U.S. Supreme Court acknowledged that the basic purpose of the FOIA is to open agency action to the light of public scrutiny. These rulings were reiterated in the 1994 case of Department of Defense, et al. v. Federal Labor Relations 74 Authority, et al. Be that as it may, the U.S. Supreme Court characterized this
_______________
67
Id., p. 545, citing Writings of James Madison 398 (1806), reprinted
in Note, Access to Official Information: A Neglected Constitutional Right , 27 Ind. LJ. 209, 212 (1952).
68 69
Gatewood, C., supra, p. 9. Wilcox, W., Access to Environmental Information in the United and the United Kingdom, 23 Loyola of Los Angeles
States
70
International & Comparative Law Review (March 2001) 121, 124-125. Ducat, C., Constitutional Interpretation: Rights of the Individual , 410 U.S. 73 (1973). Department of Justice v. Reporters Committee for Freedom of 425 U.S. 352, 372 (1976). 127 L. Ed. 2d 325 (1994). 489 vol. II (2000), p. 1030.
71 72
Press, 489 U.S. 749 (1989), 772-773.

73 74
489
freedom of information as a statutory and 75 not a constitutional right in Houchins v. KQED, Inc., et al., viz. : there is no constitutional right to have access to particular government information, or to require openness from the bureaucracy . . . The Constitution itself is neither 76 a Freedom of Information Act nor an Official Secrets Act. Neither the courts nor Congress has recognized an affirmative constitutional obligation to disclose information concerning governmental affairs; the U.S. Constitution itself contains no 77 language from which the duty could be readily inferred. Nevertheless, the U.S. federal government, the fifty states and the District of Columbia have shown their commitment to public access to government-held information. All have statutes78 that allow varying degrees of access to government records. While the right of access to government information or the right to know is characterized as a statutory right, 79 the right to receive information was first identified by the U.S. Supreme Court as a constitutional right in the 1936 80 case of Grosjean v. American Press Company. The Court also stated that the First Amendment protects the natural right of members of an organized society, united for their common good, to impart and acquire information about their common interests. Citing Judge Cooley, the Court held that free and general discussion of public matters is essential to prepare the people for an intelligent exercise of 81 their rights as citizens. The Court also noted that an informed public opinion is the most potent of all restraints upon misgovernment. Many consider Virginia State Board 82 of Pharmacy v. Virginia Citizens Consumer Council the 83 seminal right to receive case. In this 1976 decision, the Court struck down a Virginia statute forbidding pharmacists from advertising the prices of prescription drugs. Writing for the major_______________
75 76
438 U.S. 1 (1978). 438 U.S. 1 (1978), 14, citing Pell v. Procunier, 417 U.S. 817 (1974) Note, The Rights of the Public and the Press to Gather Bunker, M., Splichal, S., Chamberlin, B., Perry, L., supra, p. 543. Id., p. 548. 297 U.S. 233 (1935).
and Stewart, Or of the Press, 26 Hastings LJ 631, 636 (1975).

77
Information, 87 Harvard Law Review 1505 (May, 1974), 1512.

78 79 80
81
297 U.S. 233 (1935), 249, citing 2 Cooley, Const. Lim. 8th ed. p. 425 U.S. 748 (1976). Bunker, M., Splichal, S., Chamberlin, B., Perry, L., supra, p. 549. 490
886.
82 83
490
ity, Justice Blackmun held that the free flow of information about commercial matters was necessary to ensure informed public decision-making. He reasoned that the protection of the First Amendment extends not only to the speaker, but to the recipient of the communication. Although the case dealt with commercial speech, the majority opinion made it clear that the constitutional protection for receipt of information would apply with even more force when 84 more directly related to self-government and public policy. In 1982, the U.S. Supreme Court highlighted the connection between self-government and the right to 85 receive information in Board of Education v. Pico. This case involved a school boardordered removal of books from secondary school libraries after the board classified the book as anti-American, anti-Christian, antiSemitic, and 86 just plain filthy. Justice Brennan, writing for a threejustice plurality, emphasized the First Amendments role in assuring widespread dissemination of 87ideas and information. Citing Griswold v. Connecticut, the Court held that (t)he State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The Court noted that the right to receive ideas is a necessary predicate to the recipients meaningful exercise of his own rights of speech, press, and political freedom. It then cited Madisons admonition that, (a) popular Government, without popular information; or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must 88arm themselves with the power which knowledge gives . The U.S. Supreme Court has reiterated, in various contexts, the idea that the Constitution protects the right 89 90 to receive information and ideas. Kleindienst v. Mandel acknowledged a First Amendment right to receive information but deferring to Congress ple-
_______________
84 85 86 87 88
425 U.S. 748, 765, n. 19 (1976). 457 U.S. 853 (1982). Id., p. 857. 381 U.S. 479 (1965). 457 U.S. 853, 867 (1982), citing 9 Writings of James Madison 103 Bunker, M., Splichal, S., Chamberlin, B., Perry, L., supra, p. 549. 408 U.S. 753, 762-65 (1972). 491
(G. Hunt ed. 1910).

89 90
491
nary power to exclude aliens. Lamont v. Postmaster 91 General invalidated a statutory requirement that foreign mailings of communist political propaganda be delivered only upon request by the addressee. Martin v. City of 92 Struthers invalidated a municipal ordinance forbidding door-to-door distribution of handbills as violative if the First Amendment rights of both the recipients and the 93 distributors. Whether the right to know is based on a statutory right provided by the FOIA or a constitutional right covered by the First Amendment, the underlying premise is that an informed people is necessary for a sensible exercise of the freedom of speech, which in turn, is necessary to a meaningful exercise of the right to vote in a working democracy. In 1927, Justice Louis Brandeis gave the principle behind the First Amendment its classic formulation, viz. :
_______________
91 92 93
381 U.S. 301 (1965). 319 U.S. 141 (1943). Information is vital not only in the area of political participation
in a democracy, but also in the field of economic participation. It is often said that the American economy has been shifting from one based on industrial development to one based on the creation and dissemination of information. (Sunstein, C., Informational Regulation and Informational Standing: Akins and Beyond, 147 University of Pennsylvania Law Review [January 1999], 613, citing David Osborne & Ted Gaebler, Reinventing Government: How the Entrepreneurial Spirit Is Transforming the Public Sector 15-16 [1992] [describing the failure of government bureaucracy to adjust to the new knowledge-based
economy]). In the last forty years, statutes have been designed to ensure disclosure of information and this mandatory disclosure has increasingly become a pervasive and important regulatory tool. Informational regulation such as requiring companies to disclose information about toxic releases, contents of food and drinks and workplace injuries has become one of the most striking developments in the last generation of American law. The government also attempts to control its own agents through compulsory production and disclosure of information such as through the National Environmental Policy Act of 1969, the Freedom of Information Act and the Federal Election Campaign Act which enhance public monitoring of government decisions, with special attention being given to particular issues such as insufficient environmental concern, unlawful behavior during campaigns, and official corruption. (Sunstein, C., Informational Regulation and Informational Standing: Akins and Beyond, 147 University of Pennsylvania Law Review [January 1999], 613, 614). 492
492
Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary . They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth ; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by lawthe argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free 94 speech and assembly should be guaranteed.
The U.S. 95 Supreme Court also held in Stromberg v. California that the First Amendment provides the opportunity for free political discussion to the end that government may be responsive to the will of the people and 96 that changes may be obtained by lawful means . . . The Amendment is the repository of . . . self-governing 97 powers as it provides a peaceful means for political and social change through public discussion. In Mills v. State of 98 Alabama, it ruled that there may be differences about interpretations of the First Amendment, but there is practically universal agreement that a major purpose of the Amendment was to protect the free discussion of governmental affairs. This of course includes
_______________
94
Whitney v. California, 274 U.S. 357, 375-76 (1927) (Brandeis, J. , 283 U.S. 359, 369 (1931). Stromberg v. California, 283 U.S. 359, 369 (1931). Bunker, M., Splichal, S., Chamberlin, B., Perry, L., supra, p. 546,
concurring).
95 96 97
citing Brennan, W.. Jr., The Supreme Court and the Mieklejohn Interpretation of the First Amendment , 79 Hard. L. Rev. 1, 11 (1965).
98
384 U.S. 214 (1966). 493
493
discussions of candidates, structures and forms of government, the manner in which government is operated or should99 be operated, all such matters relating to political processes. Justice William J. Brennan summarized, the principle succinctly in his opinion for the Court in Garrison v. Louisiana , viz. : . . .speech concerning public affairs is more than self-expression; it 100 is the essence of selfgovernmen. ( emphasis supplied) The electorates right to information on public matters occupies a higher legal tier in the Philippines compared to the United States . While the right to information in U.S. jurisdiction is merely a statutory right, it enjoys constitutional status in Philippine jurisdiction. The 1987 Constitution not only enlarged the democratic space with provisions on the electorates direct exercise of sovereignty, but also highlighted the right of the people to information on matters of public interest as a predicate to good
governance and a working democracy. The Bill of Rights sanctifies the right of the people to information under Section 7, Article III of the 1987 Constitution, viz. :
Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. (emphasis supplied)
This provision on the right to information sans the phrase as well as to government research data made its maiden appearance in the Bill of Rights of the 1973 Constitution. The original draft of the provision presented to the 1971 Constitutional Convention merely said that access to official records and the fight to information shall be afforded the citizens as may be provided by law. Delegate De la Serna pointed out, however, that the provision did not grant a self-executory right to citizens. He thus proposed the rewording of the provision to grant the right but subject to statu_______________
99
Id., pp. 218-219. 379 U.S. 64 (1964), 74-75. 494
100
494
tory limitations. The 1973 Constitution thus provided in Section 6, Article IV, viz. :
Sec. 6. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, shall be afforded the citizen subject to such limitations as may be provided by law.
101
The change in phraseology was 102 important as in the pre1973 case of Subido v. Ozaeta, this Court held that freedom of information or freedom to obtain information for publication is not guaranteed by the constitution. In that case, the issue before the Court was whether the press and the public had a constitutional right to demand the examination of the public land records. The Court ruled in
the negative but held that the press had a statutory right to examine the records of the Register of Deeds because the interest of the press was real and adequate. As worded in the 1973 and 1987 Constitution, the right to information is self-executory. It is a public right where the real parties in interest are the people. Thus, every citizen has standing to challenge any violation of the 103 right and may seek its enforcement. The right to information, free speech and press and of assembly and petition and association which are all enshrined in the Bill of Rights are cognate rights for they all commonly rest on the premise that ultimately it is an informed and critical public opinion which alone can protect and uphold the 104 values of democratic government . 105 In splendid symmetry with the right to information in the Bill of Rights are other provisions of the 1987 Constitution highlighting the principle of transparency in government. Included among the State Policies under Article II of the 1987 Constitution is the following provision, viz. :
_______________
101 102 103 104 105
Bernas, J., supra, p. 370. 80 Phil. 383 (1948). Bernas, J., supra, p. 371. Id., p. 376. Commissioner Blas Ople, 5 Records of the Constitutional
Commission, p. 26. 495
495
Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. (emphasis supplied)
Related to the above provision is Section 21 of Article XI, National Economy and Patrimony, which provides, viz. :
Sec. 21. Foreign loans may be incurred in accordance with law and the regulation of the monetary authority. Information on foreign laws obtained or guaranteed by the Government shall be made available to the public. (emphasis supplied)
The indispensability of access to information involving public interest and government transparency in Philippine
democracy is clearly recognized in the deliberations of the 1987 Constitutional Commission, viz. :
MR. OPLE. Mr. Presiding Officer, this amendment is proposed jointly by Commissioners Ople, Rama, Treas, Romulo, Regalado and Rosario Braid. It reads as follows: SECTION 24. THE STATE SHALL ADOPT AND IMPLEMENT A POLICY OF FULL PUBLIC DISCLOSURE OF ALL ITS TRANSACTIONS SUBJECT TO REASONABLE SAFEGUARDS ON NATIONAL INTEREST AS MAY BE PROVIDED BY LAW. x x x x x x x x x In the United States, President Aquino has made much of the point that the government should be open and accessible to the public. This amendment is by way of providing an umbrella statement in the Declaration of Principles for all these safeguards for an open and honest government distributed all over the draft Constitution. It establishes a concrete, ethical principle for the conduct of public affairs in a genuinely open democracy, with the 106 peoples right to know as the centerpiece. (emphasis supplied)
Commissioners Bernas and Rama made the following observations on the principle of government transparency and the publics right to information: FR. BERNAS.Just one observation, Mr. Presiding Officer. I want to comment that Section 6 (referring to Section 7, Article III on the right to information) talks about the right of the people to information, and corresponding to every right is a duty. In this particular case, corresponding to
_______________
106
5 Records of the Constitutional Commission, p. 24. 496
496
this right of the people is precisely the duty of the State to make available whatever information there may be needed that is of public concern. Section 6 is very broadly stated so that it covers anything that is of public concern. It would seem also that the advantage of Section 6 is that it challenges citizens to be active in seeking information rather than being dependent on whatever the State may release to them.
x x x x x x x x x MR. RAMA.There is a difference between the provisions under the Declaration of Principles and the provision under the Bill of Rights. The basic difference is that the Bill of Rights contemplates coalition ( sic) (collision?) between the rights of the citizens and the State. Therefore, it is the right of the citizen to demand information. While under the Declaration of Principles, the State must have a policy, even without being demanded, by the citizens, without being sued by the citizen, to disclose information and transactions. So there is a basic difference here because of the very nature of the Bill of Rights and the nature of the 107 Declaration of Principles. ( emphases supplied) The importance of information in a democratic framework is also recognized in Section 24, Article II, viz. :
Sec. 24. The State recognizes the vital role of communication and information in nation-building. (emphasis supplied).
Section 10 of Article XVI, General Provisions is a related provision. It states, viz. :

Sec. 10. The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country , in accordance with a policy that respects the freedom of speech and of the press. (emphasis supplied)
The sponsorship speech of Commissioner Braid expounds on the rationale of these provisions on information and communication, viz. : MS. ROSARIO BRAID.We cannot talk of the functions of communication unless we have a philosophy of communication, unless we have a vision of society. Here we have a preferred vision where opportunities are provided for participation by as many people, where there is unity even in
_______________
107
Id., p. 26. 497
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497
Tolentino vs. Commission on Elections cultural diversity, for there is freedom to have options in a pluralistic society. Communication and information provide the leverage for power. They enable the people to act, to make decisions, to 108 share consciousness in the mobilization of the nation. ( emphasis supplied) In Valmonte v. Belmonte, the Court had occasion to rule on the right to information of a lawyer, members of the media and plain citizens who sought from the Government Service Insurance System a list of the names of the Batasang Pambansa members belonging to the UNIDO and PDP-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 110 Marcos. In upholding the petitioners right, the Court explained the rationale of the right to information in a democracy, viz. :
This is not the first time that the Court is confronted with a controversy directly involving the constitutional right to information. In Taada v. Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA 27 (involving the need for adequate notice to the public of the various laws which are to regulate the actions and conduct of citizens) and in the recent case of Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987, 150 SCRA 530 (involving the concern of citizens to ensure that government positions requiring civil service eligibility are occupied only by persons who are eligibles), the Court upheld the peoples constitutional right to be informed of matters of public interest and ordered the government agencies concerned to act as prayed for by the petitioners. x x x x x x x x x An informed citizenry with access to the diverse currents in political, moral and artistic thought and data relative to them, and the free exchange of ideas and discussion of issues thereon is vital to the democratic government envisioned under our Constitution. The cornerstone of this republican system of government is delegation of power by the people to the State. In this system, governmental agencies and institutions operate within the limits of the authority conferred by the people. Denied access to information on the inner workings of government, the citizenry can become prey to the whims and caprices of those to whom the power had been delegated . . . x x x x x x x x x . . . The right of access to information ensures that these freedoms are not rendered nugatory by the governments monopolizing pertinent
109
_______________
108 109 110
Id. , p. 83. 170 SCRA 256 (1989). Id.
498
498
information. For an essential element of these freedoms is to keep open a continuing dialogue or process of communication between the government and the people. It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the peoples will. Yet, this open dialogue can be effective only to the extent that the citizenry is informed and thus able to formulate its will intelligently. Only when the participants in a discussion are aware of the issues and have access to information relating thereto can such bear fruit. The right to information is an essential premise of a meaningful right to speech and expression. But this is not to say that the right to information is merely an adjunct of and therefore restricted in application by the exercise of the freedoms of speech and of the press. Far from it. The right to information goes hand-in-hand with the constitutional policies of full public disclosure (footnote omitted) and honesty in the public service (footnote omitted). It is meant to enhance the widening role of the citizenry in governmental decision-making as well as in checking abuse in 111 government. (emphases supplied)
The Court made a similar ruling in Gonzales v. Narvasa which involved the petitioners request addressed to respondent Executive Secretary Ronaldo B. Zamora for the names of the executive officials holding multiple positions in government, copies of their appointments, and a list of the recipients of luxury vehicles seized by the Bureau of 113 Customs and turned over to Malacaang. The respondent was ordered to furnish the petitioner the information requested. The Court held, viz. :
Under both the 1973 (footnote omitted) and 1987 Constitution, this (the right to information) is a self-executory provision which can be invoked by any citizen before the courts . . . Elaborating on the significance of the right to information, the Court said in Baldoza v. Dimaano (71 SCRA 14 [1976]. . .) that [t]he incorporation of this right in the Constitution is a recognition
112
of the fundamental role of free exchange of information in a democracy. There can be no realistic perception by the public of the nations problems, nor a meaningful democratic decision-making if they are denied access to information of general interest. Information is needed to enable the members of society to cope with 114 the exigencies of the times. (emphases supplied)
_______________
111 112 113 114
170 SCRA 256, 264-266 (1989). 337 SCRA 733 (2000). Id., p. 745 (2000). Id., pp. 746-747 (2000). 499
499
The importance of an informed citizenry in a working democracy was again emphasized in Chavez v. Public Estates Authority and Amari Coastal Bay Development 115 Corporation where we held, viz. :
The State policy of full transparency in all transactions involving public interest reinforces the peoples right to information on matters of public concern. x x x x x x x x x These twin provisions (on right to information under Section 7, Article III and the policy of full public disclosure under Section 28, Article II) of the Constitution seek to promote transparency in policy-making and in the operations of the government, as well as provide the people sufficient information to exercise effectively other constitutional rights. These twin provisions are essential to the exercise of freedom of expression. If the government does not disclose its official acts, transactions and decisions to citizens, whatever citizens may say, even if expressed without any restraint, will be speculative and amount to nothing. These twin provisions are also essential to hold public officials at all times x x x accountable to the people, (footnote omitted) for unless citizens have the proper information, they cannot hold public officials accountable for anything. Armed with the right information, citizens can participate in public discussions leading to the formulation of government policies and their effective implementation. An informed citizenry is essential to the existence 116 and proper functioning of any democracy. (emphases supplied)
B. Elections and the voters right to information on the
elections An informed citizenrys opinions and preferences have the most impact and are most clearly expressed in elections which lie at the foundation of a representative democracy. The electorates true will, however, can only be intelligently expressed if they are well informed about the time, place, manner of conduct of the elections and the candidates therein. Without this information, democracy will be a mere shibboleth for voters will not be able to express their true will through the ballot. 117 In Duquette v. Merrill, which the ponencia cites by 118 reference to 26 American Jurisprudence 2d 292, a vacancy in the office of
_______________
115 116 117 118
G.R. No. 133250, July 9, 2002, 384 SCRA 152. Id., p. 15. 158 ALR 1181 (1945). Footnote 32 of the ponencia. 500
500
Country Treasurer in York County occurred on July 24, 1944 upon the death of the incumbent Maynard A. Hobbs. The vacancy was filled in accordance with the law providing that the governor may appoint a resident of the county who shall be treasurer until the 1st day of January following the next biennial election, at which said election a treasurer shall be chosen for the remainder of the term, if any. The next biennial election was held on September 11, 1944. In the June 1944 primary election (prior to the death of Hobbs) where nominations of candidates for the upcoming biennial elections were made, there was no nomination for the office of County Treasurer as Hobbes term was yet to expire on January 1947. Neither was a special primary election ordered by proclamation of the Governor after Hobbes death. Nor were other legal modes of nominating candidates such as through nomination of a political party, convention of delegates or appropriate caucus resorted to. Consequently, in the official ballot of the September 11, 1944 election, there was no provision made for the selection of a County Treasurer to fill the vacancy for the unexpired term. The name of the office did not appear on the ballot. Petitioner Duquette, however,
claims that he was elected County Treasurer in the special election because in the City of Biddeford, the largest city in York County, 1,309 voters either wrote in the title of the office and his name thereunder, or used a sticker of the same import and voted for him. At the September 11, 1944 biennial election, there were approximately 22,000 ballots cast, but none included the name of the petitioner except for the 1,309 in Biddeford. In holding that the special election was void, the Maine Supreme Judicial Court made the following pronouncements, the first paragraph of which was cited by the ponencia in the case at bar, viz. :
Although there is not unanimity of judicial opinion as to the requirement of official notice, if the vacancy is to be filled at the time of a general election, yet it appears to be almost universally held that if the great body of the electors are misled by the want of such notice and are instead led to believe that no such election is in fact to be held, an attempted choice by a small percentage of the voters is void. Wilson v. Brown, 109 Ky 229, 139 Ky 397, 58 SW 595; Wooton v. Wheeler , 149 Ky 62, 147 SW 914; Secord v. Foutch, 44 Mich 89, 6 NW 110; Bolton v. Good , 41 NJL 296 (other citations omitted). Notice to the electors that a vacancy exists and that an election is to be held to fill it for the unexpired term, is essential to give validity to the meeting of an electoral body to discharge that particular duty, and is also
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an essential and characteristic element of a popular election . Public policy requires that it should be given in such form as to reach the body of the electorate. Here there had been no nominations to fill the vacancy, either by the holding of a special primary election, or by nomination by county political conventions or party committees. The designation of the office to be filled was not upon the official ballot . As before noted, except for the vacancy, it would have no place there, as the term of office of the incumbent, if living, would 119 not expire until January 1, 1947. (emphases supplied)
As early as the 1897 case of People ex rel. Dix v. Kerwin, the requirement of notice in an election has been recognized, viz. :
. . . We are not prepared to hold that this statute (requiring the giving of notice) is, under all circumstances and at all times, so far mandatory that a failure to observe its requirements will defeat an
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election otherwise regularly holden. There are many cases which hold that elections regularly held and persons regularly voted for on nominations made where there has been failure to observe some specific statutory requirement will not thereby be necessarily defeated and the direction may, because of the excusing circumstances, be held directory rather than mandatory. We do not believe the circumstances of the present case, as they are now exhibited, bring it all within this rule. The theory of elections is that there shall be due notice given to the voters, and that they must be advised either by a direct notice published by the clerk, as provided by statute, or by proceedings taken by the voters and the people generally in such a way as that it may be fairly inferred that it was generally and thoroughly well understood that a particular office was to be filled at the election, so that the voters should act understandingly and intelligently in casting their ballots. x x x x x x x x x Since there was no notice published according to the statute, we may not assume that the nomination was regularly made, or that the voters were duly notified that the office was to be filled at that general election, nine days afterwards. It has been generally held that some notice, regular in its form, and pursuant to the requirements of law, must be given as a safeguard to popular elections, that the people may be informed for what officers they are to vote. Of course, it might easily be true, as has already been suggested, that, if nominations had been made for an office, certificates regularly filed, and tickets regularly printed, even though the clerk had failed to publish his notice, there would be no presumption that the
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119
158 ALR 1183-84 (1945). See also Wilson v. Brown, 58 S.W. 595 (1900) 10 Colo App 472, 51 P 530 (1897).
and State ex rel.Bryant v. Maxwell, 189 Tenn. 187, 224 S.W. 2d 833 (1949).
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body of the voters were uninformed as to their rights and as to the positions which were to be filled. People v. Porter, 6 Cal. 26; Secord v. Foutch, 44 Mich 89, 6 N.W. 110; Adsit v. Osmun, 84 Mich. 420, 48 N.W. 31; Allen v. Glynn, 17 Colo. 338, 29 Pac. 670; Stephens v. 121 People , 89 111. 337. (emphases supplied)
Similarly, in Griffith v. Mercer County Court, et al ., was held, viz .:
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it
There is a clear distinction between the case of a vacancy which is to be filled at a special election to be held at a time and place to be appointed by some officer or tribunal, authorized by statute to call it, and a case where the statute itself provides for filling a vacancy at the next general election after it occurs. In such case nearly all the authorities hold that if the body of electors do in fact know the vacancy exists, and candidates are regularly nominated by the various political parties to fill it, and the candidates receive most of the votes cast, such election is valid, even though no notice thereof was published in a manner provided by the statute. It would be hypertechnical and unreasonable to hold that a failure to comply 123 literally with the statute in such case would avoid the election. (emphasis supplied)
In Duquette, Kerwin and Griffith , as in a great majority of cases on the state level, the mere fact that the election to fill a vacancy occasioned by death, resignation, removal, or the like is held at the time of a general election in accordance with a constitutional or statutory provision, is not regarded as sufficient in itself to validate the election if no notice of the election was given ; it has been held that in such a case, it must be shown that a sufficient part of the electors have actual notice that the vacancy is to be filled. The fact that a great percentage of voters cast their votes despite the failure of giving proper notice of the elections appears to be the most decisive single factor to hold that 124 sufficient actual notice was given . These doctrines were 125 reiterated in Lisle, et al. v. C.L. Schooler where it was held that mere allegation that many voters were
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121 122 123 124
Id., pp. 531-532 (1897). 80 W Va 410, 92 SE 676 (1917). Id., p. 679. Annotation, Notice of election to fill vacancy in office at general 288 S.W.2d 652 (1956). 503
election. 158 ALR 1189-91 (1945).

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informed that a special election to fill a vacancy was being held was unsatisfactory proof of sufficient notice. In our jurisdiction, it is also the rule that the exercise of the right of suffrage should be an enlightened one, hence,
based on relevant facts, data and information. It is for this reason that the choice of representatives in a democracy cannot be based on lottery or any form of chance. The choice must be based on enlightened judgment for democracy cannot endure the rule and reign of ignorance. This principle was stressed by the Court in Tolentino v. 126 Commission on Elections. The issue before the Court was whether the Constitutional Convention of 1971 had the power to call for a plebiscite for the ratification by the people of a partial constitutional amendment. The amendment was the proposal to lower the voting age to 18 but with the caveat that (t)his partial amendment, which refers only to age qualification for the exercise of suffrage shall be without prejudice to other amendments that will be proposed in the future by the 1971 Constitutional Convention on other portions of the amended Section or on other portions of the entire Constitution. The Court ruled in the negative, emphasizing the necessity for the voter to be afforded sufficient time and information to appraise the amendment, viz. :
. . . No one knows what changes in the fundamental principles of the constitution the Convention will be minded to approve. To be more specific, we do not have any means of foreseeing whether the right to vote would be of any significant value at all. Who can say whether or not later on the Convention may decide to provide for varying types of voters for each level of the political units it may divide the country into. The root of the difficulty in other words, lies in that the Convention is precisely on the verge of introducing substantial changes, if not radical ones, in almost every part and aspect of the existing social and political order enshrined in the present Constitution. How can a voter in the proposed plebiscite intelligently determine the effect of the reduction of the voting age upon the different institutions which the Convention may establish and of which presently he is not given any idea? We are certain no one can deny that in order that a plebiscite for the ratification of an amendment to the Constitution may be validly held, it must provide the voter not only sufficient time but ample basis for an intel_______________
126
41 SCRA 702 (1971).
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ligent appraisal of the nature of the amendment per se as well as its relation to the other parts of the Constitution with which it has to form a harmonious whole. In the present state of things, where the Convention has hardly started considering the merits of hundreds, if not thousands, of proposals to amend the existing Constitution, to present to the people any single proposal or a few of them 127 cannot comply with this requirement. (emphasis supplied)
The need for the voter to be informed about matters which have a bearing on his vote was again emphasized by the 128 Court in UNIDO v. Commission on Elections. This case involved the amendments to the 1973 Constitution proposed by the Batasang Pambansa in 1981. The Court reiterated that the more people are adequately informed about the proposed amendments, their exact meaning, implications and nuances, the better . We held, viz. :
To begin with, we cannot agree with the restrictive literal interpretation the Solicitor General would want to give to the free, orderly and honest elections clause of Section 5, Article XII-C above-quoted. Government Counsel posits that the said clause refers exclusively to the manner in which the elections are conducted, that is to say, with the manner in which the voters are supposed to be allowed to vote. Perhaps, such a theory may hold insofar as ordinary elections of officials are concerned. But the Court views the provision as applicable also to plebiscites, particularly one relative to constitutional amendments. Be it borne in mind that it has been one of the most steadfast rulings of this Court in connection with such plebiscites that it is indispensable that they be properly characterized to be fair submissionby which is meant that the voters must of necessity have had adequate opportunity, in the light of conventional wisdom, to cast their votes with sufficient understanding of what they are voting on. We are of the firm conviction that the charters reference to honest elections connotes fair submission in a plebiscite. (emphasis supplied)
Similarly, the Court ruled in Sanidad v. COMELEC that plebiscite issues are matters of public concern and importance. The peoples right to be informed and to be able to freely and intelligently make a decision would be better served by access to an unabridged discussion of the issues, including the forum.
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127 128 129
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Tolentino v. Commission on Elections, 41 SCRA 702 (1971). 104 SCRA 17 (1981). 181 SCRA 529 (1990). 505
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It cannot be overemphasized that an informed electorate is necessary for a truly free, fair and intelligent election . The voting age was lowered from 21 years to 18 years because the youth of 18 to 21 years did not differ in political 130 maturity, implying that political maturity or the capacity to discern political information is necessary for the exercise of suffrage. It is for this, obvious reason that minors and the insane are not allowed to vote. Likewise, the literacy test for the right to vote was abolished because as explained by the Committee on Suffrage and Electoral Reforms of the 1971 Constitutional Convention, the requirement to read and write was written into our constitution at a time when the only medium of information was the printed word and even the public meetings were not as large and successful because of the absence of amplifying equipment. It is a fact that today the vast majority of the population learn about national matters much more from the audio-visual media, namely, radio and television, and public meetings have become much more effective since the advent of amplifying equipment. Again, the necessity of information relevant to an election is highlighted. Similarly, in the 1986 Constitutional Commission, Commissioner Bernas, in justifying enfranchisement of the illiterates, spoke of their access to information relevant to elections, viz. :
If we look at . . . the communication situation in the Philippines now, the means of communication that has the farthest reach is AM radio. People get their information not from reading newspapers but from AM radiofarmers while plowing, and vendors while selling things listen to the radio. Without knowing how to read and write, they are adequately informed about many 131 things happening in the country.
Several election cases, albeit not involving an issue similar to the case at bar, affirm the necessity of an informed electorate in holding free, intelligent and clean elections . In 132 Blo Umpar Adiong v. Commission on Elections where this Court nullified a portion of a COMELEC Resolution prohibiting the posting of candidates decals and stickers on mobile places and limiting their location to authorized posting areas, we held, viz. :
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Bernas, J., supra, p. 636. 2 Records of the Constitutional Commission, p. 16. 207 SCRA 712 (1992). 506
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We have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials. (New York Times Co. v. Sullivan, 376 U.S. 254, 11 L.Ed. 686 [1964] . . .) Too many restrictions will deny to people the robust, uninhibited, and wide open debate, the generating of interest essential if our elections will truly be free, clean and honest . We have also ruled that the preferred freedom of expression calls all the more for the utmost respect when what may be curtailed is the dissemination of information to make more meaningful the equally vital right of suffrage . (Mutuc v. Commission on Elections , 36 SCRA 228 [1970]). x x x x x x x x x When faced with border line situations where freedom to speak by a candidate or party and freedom to know on the part of the electorate are invoked against actions intended for maintaining clean and free elections, the police, local officials and COMELEC should lean in favor of freedom. For in the ultimate analysis, the freedom of the citizen and the States power to regulate are not antagonistic. There can be no free and honest elections if in the efforts to maintain them, the freedom to speak and the right to know are unduly curtailed . x x x x x x x x x . . . we have to consider the fact that in the posting of decals and stickers on cars and other moving vehicles, the candidate needs the consent of the owner of the vehicle. In such a case, the prohibition would not only deprive the owner who consents to such posting of the decals and stickers the use of his property but more important, in the process, it would deprive the citizen of his right to free speech and information:
Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved. ( Martin v. City of Struthers, Ohio, 319 U.S. 141; 87 L. ed. 1313 [1943]).
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To facilitate the peoples right to information on election
matters, this Court, in Telecommunications and Broadcast 134 Attorneys of the Philippines, Inc., et al. v. COMELEC upheld the validity of COMELECs procurement of print space and airtime for allocation to candidates, viz. :
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207 SCRA 712, 716-717, 721 (1992). See also ABS-CBN
Broadcasting Corporation v. Commission on Elections, 323 SCRA 811 (2000).

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289 SCRA 337 (1998). 507
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With the prohibition on media advertising by candidates themselves, the COMELEC Time and COMELEC Space are about the only means through which candidates can advertise their qualifications and programs of government. More than merely depriving candidates of time for their ads, the failure of broadcast stations to provide airtime unless paid by the government would clearly deprive the people of their right to know. Art. III, 7 of the Constitution provides that the right of the people to information on 135 (emphasis matters of public concern shall be recognized . . . supplied)
The importance of the peoples acquisition of information can be gleaned from several provisions of the Constitution under Article IX (C), The Commission on Elections. Section 4 provides that the COMELEC is given the power to supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities media of communication or information, all grants, special privileges or concession granted by the Government... Such supervision or regulation shall aim to ensure equal opportunity, time, and space and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful and credible elections. Section 6 provides that, (a) free and open party system shall be allowed to evolve according to the free choice of the people. Section 2(5) of the same article requires political parties, organizations and coalitions to present their platform or program of government before these can be registered. In the robust and wide open debate
of the electorate, these programs of government are important matters for discussion. The deliberations of the Constitutional Commission on whether voting of Congressmen should be by district or province also evince a clear concern for intelligent voting, viz. : SR. TAN. Mr. Presiding Officer, I think one of the drawbacks of our political system, especially in the campaign, is that many of us vote by personality rather than by issue. So I am inclined to believe that in the elections by district, that would be lessened because we get to know the persons running more intimately. So we know their motivation, their excesses, their weaknesses and there would be less chance for the people to vote by personality. I was wondering whether the Commission shares the same observation.
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Id., pp. 361-362. 508
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MR. DAVIDE. Mr. Presiding Officer, if it would be by province, the vote would no longer be personalities but more on issues, because the relationship is not really very personal. Whereas, if it would be by district, the vote on personality would be most impressive and dominant. SR. TAN.I cannot quite believe that. It would be like a superstar running around. MR. DAVIDE. For instance, we have a district consisting of two municipalities. The vote would be more on personalities. It is a question of attachment; you are the godson or the sponsor of a baptism, like that. But if you will be voted by province, its your merit that will be counted by all others outside your own area. In short, the more capable you 136 are, the more chance you have of winning provincewide. Several provisions of our election laws also manifest a clear intent to facilitate the voters acquisition of information pertaining to elections to the end that their vote would truly reflect their will. Section 52(j) of Article VII of B.P. Blg. 881
or the Omnibus Election Code gives the COMELEC the following power and duty: (j) Carry out a continuing and systematic campaign through newspapers of general circulation, radios and other media forms to educate the public and fully inform the electorate about election laws, procedures, decisions, and other matters relative to the work and duties of the Commission and the necessity of clean, free, orderly and honest electoral processes. (Sec. 185(k), 1978 EC) (k) Enlist non-partisan groups or organizations of citizens from the civic, youth, professional, educational, business or labor sectors known for their probity, impartiality and integrity . . . Such groups or organizations. . . shall perform the following specific functions and duties: A. Before Election Day: 1. Undertake an information campaign on salient features of this Code and help in the dissemination of the orders, decisions and resolutions of the Commission relative to the forthcoming election. ( emphasis supplied) Section 87 of Article X of B.P. Blg. 881 also provides, viz. :
Section 87. x x x Public Forum.The Commission shall encourage non-political, nonpartisan private or civic organizations to initiate and hold in every city and municipality, public for at which all registered candidates for the
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5 Records of the Constitutional Commission, p. 675.
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same office may simultaneously and personally participate to present, explain, and /or debate on their campaign platforms and programs and other like issues . . . (emphasis supplied)
Section 93 of the same Article provides, viz. :
Section 93. Comelec information bulletin .The Commission shall cause the printing, and supervise the dissemination of bulletins to be known as Comelec Bulletin which shall be of such size as to adequately contain the picture, bio-data and program of government of every candidate. Said bulletin shall be disseminated to the voters or displayed in such places as to give due prominence thereto. (emphasis supplied)
Of the same import is Section 25 of R.A. No. 8436, An Act Authorizing the Commission on Elections to Use an Automated Election System in the May 11, 1998 Elections and Subsequent Electoral Exercises which provides, viz. :
Section 25. Voters Education.The Commission together with and in support of accredited citizens arms shall carry out a continuing and systematic campaign though newspapers of general circulation, radio and other media forms, as well as through seminars, symposia, fora and other non-traditional means to educate the public and fully inform the electorate about the automated election system and inculcate values on honest, peaceful and orderly elections. (emphasis supplied)
Similarly, R.A. No. 9006, An Act to Enhance the Holding of Free, Orderly, Honest, Peaceful and Credible Elections through Fair Election Practices, approved a few months before the May 2001 elections or on February 12, 2001 provides in Section 6.4, viz. :
Sec. 6.4. x x x x x x x x x In all instances, the COMELEC shall supervise the use and employment of press, radio and television facilities insofar as the placement of political advertisements is concerned to ensure that candidates are given equal opportunities under equal circumstances to make known their qualifications and their stand on public issues within the limits set forth in the Omnibus Election Code and Republic Act No. 7166 on election spending. (emphasis supplied)
The Omnibus Election Code also provides for procedures and requirements that make the election process clear and orderly to avoid voter confusion. Article IX of the Code provides, viz. :
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Section 73. Certificate of candidacy.No person shall be eligible for
any elective public office unless he files a sworn certificate of candidacy within the period fixed herein. x x x x x x x x x No person shall be eligible for more than one office to be filled in the same election , and if he files his certificate of candidacy for more than one office, he shall not be eligible for any of them . . . x x x x x x x x x Certificates of Candidacy; Certified List of Candidates. ... . . . the Commission shall cause to be printed certified lists of candidates containing the names of all registered candidates for each office to be voted for in each province, city or municipality immediately followed by the nickname or stage name of each candidate duly registered in his certificate of candidacy and his political affiliation, if any. Said list shall be posted inside each voting booth during the voting period. x x x x x x x x x The names of all registered candidates immediately followed by the nickname or stage name shall also be printed in the election returns and tally sheets (R.A. No. 6646, Sec. 4) Section. 74. Contents of certificate of candidacy.The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; . . .
Article XVI, Section 181, also provides, viz. :

Section 181. Official ballots . x x x x x x x x x (b) The official ballot shall also contain the names of all the officers to be voted for in the election, allowing opposite the name of each office, sufficient space or spaces with horizontal lines where the voter may write the name or names of individual candidates voted for by him.
In the case of special elections, the need for notice and information is unmistakable under Section 7 of the Omnibus Election Code of the Philippines, as amended by R.A. No. 7166, which provides, viz. :
Sec. 7. Call for special election .In case a permanent vacancy shall occur in the Senate or House of Representatives at least one (1) year before the expiration of the term, the Commission shall call and hold a special election to fill the vacancy not earlier than sixty (60) days nor
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Tolentino vs. Commission on Elections longer than ninety (90) after the occurrence of the vacancy. However, in case of such vacancy in the Senate, the special election shall be held simultaneously with the succeeding regular election. (R.A. No. 7166, Sec. 4) The postponement, declaration of failure of election and the calling of special elections as provided in Sections 5, 6, and 7 of the Omnibus Election Code shall be decided by the Commission sitting en banc by a majority vote of its members. The causes for the declaration of a failure of election may occur before or after the casting of votes or on the day of the election. (R.A. No. 7166, Sec. 4) The Commission shall send sufficient copies of its resolution for the holding of the election to its provincial election supervisors and election registrars for dissemination, who shall post copies thereof in at least three conspicuous, places preferably where public meetings are held in each city or municipality affected. (1978 EC, Sec. 8) (emphasis supplied)
In Hassan v. COMELEC, et al., we ruled that constituents could not be charged with notice of a second special elections held only two days after the failure of the special election. This case involved the May 8, 1995 regular local elections in Madalum, Lanao del Sur. Due to the threats of violence and terrorism in the area, there was a failure of election in six out of twenty-four precincts in Madalum. A special elections was set on May 27, 1995 but the Board of Election Inspectors failed to report for duty due to the threats of violence. The Monitoring Supervising Team of the COMELEC reset the special elections to May 29, 1995 in a school 15 kilometers away from the designated polling places. In ruling that the May 29 special elections was invalid, the Court ruled, viz. :
We cannot agree with the COMELEC that petitioner, his followers or the constituents must be charged with notice of the special elections to be held because of the failure of the two (2) previous elections. To require the voters to come to the polls on such short notice was highly impracticable. In a place marred by violence, it was necessary for the voters to be given sufficient time to be notified of the changes and prepare themselves for the eventuality. It is essential to the validity of the election that the voters have notice in some form, either actual or constructive of the time, place and purpose thereof. (Furste v. Gray , 240 Ky 604, 42 SW 2d 889; State ex. rel. Stipp v. Colliver (MO) 243 SW 2d 344.) The time for holding it must be authoritatively designated in advance. The requirement of notice even becomes stricter in cases of special elections where it was called by some authority
137
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264 SCRA 125 (1996).
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after the happening of a condition precedent, or at least there must be a substantial compliance therewith so that it may fairly and reasonably be said that the purpose of the statute has been carried into effect. (State ex. rel. Stipp v. Colliver, supra ). The sufficiency of notice is determined on whether the voters generally have knowledge of the time, place and purpose of the elections so as to give them full opportunity to attend the polls and express their will or on the other hand, whether the omission resulted in depriving a sufficient number of the qualified electors of the opportunity of exercising their franchise so as to change the result of the election. (Housing Authority of County of Kings v. Peden, 212 Cal App 2d 276, 28 Cal Rptr, other citations omitted) x x x x x x x x x . . . even in highly urbanized areas, the dissemination of notices poses to be a problem. In the absence of proof that actual notice, of the special elections has reached a great number of voters, we are constrained to consider the May 29 elections as invalid . . . (emphases supplied)
Although this case did not involve a special election held simultaneously with a general election by mandate of law as in the case bar, the doctrine that can be derived from this case is that the electorate must be informed of the special election as proved by official or actual notice. VII. Application of the Principles of Democracy, Republicanism Freedom of Information and Discourse to the Case at Bar The 1987 Constitution, with its declaration that the Philippines is not only a republican but also a democratic state, and its various provisions broadening the space for direct democracy unmistakably show the framers intent to give the Filipino people a greater say in government. The heart of democracy lies in the majoritarian rule but the majoritarian rule is not a mere game of dominant numbers. The majority can rule and rule effectively only if its judgment is an informed one. With an informed electorate, a healthy collision of ideas is assured that will generate sparks to fan the flames of democracy. Rule by the ignorant majority is a sham democracya mobocracyfor in the
words of Jefferson, a nation cannot be both free and ignorant. If there is anything that democracy cannot survive, it is the virus of ignorance. Elections serve as a crevice in the democratic field where voters, for themselves and the public good, plant the seeds of their ideals and freedoms. Yick Wo is emphatic that voting is a fundamental
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right that preserves and cultivates all other rights. In a republic undergirded by a social contract, the threshold consent of equal people to form a government that will rule them is renewed in every election where people exercise their fundamental right to vote to the end that their chosen representatives will protect their natural rights to life, liberty and property. It is this sacred contract which makes legitimate the governments exercise of its powers and the chosen representatives performance of their duties and functions. The electoral exercise should be nothing less than a pure moment of informed judgment where the electorate speaks its mind on the issues of the day and choose the men and women of the hour who are seeking their mandate. The importance of information and discourse cannot be overemphasized in a democratic and republican setting . Our constitutional provisions and cases highlighting the peoples right to information and the duty of the State to provide information unmistakably recognize the indispensable need of properly informing the citizenry so they can genuinely participate in and contribute to a functioning democracy. As elections lie at the foundation of representative democracy, there should be no quarrel over the proposition that electoral information should also be disseminated to the electorate as a predicate to an informed judgment. The ponencia concedes that a survey of COMELECs resolutions relating to the conduct of the May 14, 2001 elections would reveal that they contain nothing which would amount to a compliance, either strict or substantial, with the requirements in Section 2 of R.A. No. 6645, as amended. Nowhere in its resolutions or even its press releases did COMELEC state that it would hold a special election for a single Senate seat with a three-year term simultaneously with the regular elections on May 14, 2001.
Nor did COMELEC give official notice of the manner by which the special election would be conducted, i.e., that the senatorial candidate receiving the 13th highest number of votes in the election would be declared winner in the special election. Still, the ponencia upheld the holding of the May 14, 2001 special election despite the lack of call for such election and . . . lack of notice as to the office to be filled and the manner by which the winner in the special election is to be determined. With all due respect, I cannot subscribe to the ponencias position for it leaves the purity of elections and the ascertainment of the will
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of the electorate to chance, conjecture and speculation. Considering that elections lie at the heart of the democratic process because it is through the act of voting that consent to government is secured, I choose to take a position that would ensure, to the greatest extent possible, an electorate that is informed, a vote that is not devalued by ignorance and an election where the consent of the governed is clear and unequivocal. The ponencia justifies its position on the lack of call or notice of the time and place of the special election by holding that the law charges voters with knowledge of R.A. No. 7166 which provides that in case of a vacancy in the Senate, the special election to fill such vacancy shall be held simultaneously with the next succeeding election, that is, the May 14, 2001 election. The ponencias argument is that the provisions of R.A. No. 7166 stating that the special election would be held simultaneously with the regular election operated as a call for the election so that the absence of a call by the COMELEC did not taint the validity of the special election. With due respect, this is not the intention of R.A. No. 7166 for despite its paragraph 1, Section 7 that in case of such vacancy in the Senate, the special election shall be held simultaneously with the succeeding regular election, the law nevertheless required in paragraph 3 of the same section that (t)he Commission shall send sufficient copies of its resolution for the holding of the election to its provincial election supervisors and election registrars for dissemination, who shall post copies thereof in at least three conspicuous places preferably where public meetings are held in each city or municipality
affected. The Duquette case cited by the ponencia does not lend support to its thesis that statutory notice suffices. In Duquette , it was held that in the absence of an official notice of the special election mandated by law to be held simultaneously with the general election, there should be actual notice of the electorate . Actual notice may be proved by the voting of a significant percentage of the electorate for the position in the special election or by other acts which manifest awareness of the holding of a special election such as nomination of candidates. In the case at bar, however, the number of votes cast for the special election cannot be determined as the ballot did not indicate separately the votes for the special election . In fact, whether or not the electorate had notice of the special election, a candidate would just the same fall as the 13th placer because more than twelve candidates ran for the regular senatorial elections. Nobody
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was nominated to vie specifically for the senatorial seat in the special election nor was there a certificate of candidacy filed for that position. In the absence of official notice of the time, place and manner of conduct of the special election, actual notice is a matter of proof. Respondents and the ponencia cannot point to any proof of actual notice. With respect to the lack of notice of the manner by which the special election would be conducted, i.e., that the 13th placer would be declared winner in the special election, there can be no debate that statutory notice will not operate as notice to the electorate as there is no law providing that a special election held simultaneously with a general election could be conducted in the manner adopted by the Senate and the COMELEC. Instead, the ponencia buttresses its holding by stating that the petitioner has not claimed nor proved that the failure of notice misled a sufficient number of voters as would change the result of the special senatorial election. It relies do actual notice from many sources, such as media reports of the enactment of R.A. No. 6645 and election propaganda during the campaign but without even identifying these media reports and election propaganda. Suffice to state that before the ponencia can require proof that a sufficient number of voters was misled during the May 14, 2001
elections, it must first be shown that in the absence of official notice of the procedure for the special election, there was nevertheless actual notice of the electorate so that the special election could be presumed to be valid. Only then will the duty arise to show proof that a sufficient number of voters was misled to rebut the presumption of validity. I respectfully submit that the electorate should have been informed of the time, place and manner of conduct of the May 14, 2001 special election for the single senatorial seat for the unexpired, term of former Senator Teofisto Guingona, Jr. Tolentino, UNIDO, Blo Umpar Adiong and Hassan all deepened the doctrine that a meaningful exercise of the right of suffrage in a genuinely free, orderly and honest election is predicated upon an electorate informed on the issues of the day, the programs of government laid out before them, the candidates running in the election and the time, place and manner of conduct of the election. It is for this reason that the Omnibus Election Code is studded with processes, procedures and requirements that ensure voter information.
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Bince and Benito further teach us that free and intelligent vote is not enough; correct ascertainment of the will of the people is equally necessary. The procedure adopted in the case at bar for holding the May 14, 2001 special senatorial election utterly failed to ascertain the peoples choice in the special election. Section 2 of R.A. No. 7166 provides that the special election shall be held simultaneously with such general election. It does not contemplate, however, the integration of the special senatorial election into the regular senatorial election whereby candidates who filed certificates of candidacy for the regular elections also automatically stand as candidates in the special election . The Omnibus Election Code is crystal clear that a candidate can run for only one position in an election. Consequently, there were no candidates in the special election to vote for. Separate sets of candidates for the special election and the regular elections are decisive of the election results. Each independent-minded voter could have a variety of reasons for choosing a candidate to serve for only the unexpired term of three years instead of the regular term of six years or not choosing a candidate at all. A voter might choose a neophyte to serve the three-year term as a shorter trial
period. Another might be minded to choose an old-timer to compel him to hasten the completion of his projects in a shorter period of three years. Still another might want to afford a second termer who has not performed too satisfactorily a second chance to prove himself but not for too long a period of six years. In not allowing the voter to separately indicate the candidate he voted for the three-year senatorial term, the voter was deprived of his right to make an informed judgment based on his own reasons and valuations. Consequently, his true will in the special election was not ascertained. As a particle of sovereignty, it is the thinking voter who must determine who should win in the special election and not the unthinking machine that will mechanically ascertain the 13th placer in the general election by mathematical computations. The models to follow in the conduct of special elections mandated by law to be held simultaneously with a general elections are the special elections of November 13, 1951 and November 8, 1955 to fill the seats vacated by then Senators Fernando Lopez and Carlos P. Garcia, respectively. In these special senatorial elections, election activities prior ( i.e., filing of certificate of candidacies), during ( i.e., the act of voting for a special election candidate distinct from the candidates for the regular election) and after the
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election ( i.e., tallying and canvassing of results) were conducted simultaneously with, but distinctly from the regular senatorial elections. This procedure minimized voter confusion and allowed the voter to freely and accurately speak his mind and have his will truly ascertained. Regrettably, this objective appears to have been lost in the calling of the May 14, 2001 special election as can be gleaned from the Senate deliberations on the resolution calling for that election, viz. : S[ENATOR] T[ATAD]. Mr. President, in this resolution, we are leaving the mechanics to the Commission on Elections. But personally, I would like to suggest that probably, the candidate obtaining the 13th largest number of votes be declared as elected to fill up the unexpired term of Senator Guingona. S[ENATOR] O[SMEA]. (J).Is there a law that would allow the Comelec to conduct such an election? Is it not
the case that the vacancy is for a specific office ? I am really at a loss. I am rising here because I think it is something that we should consider. I do not know if we can . . . No, this is not a Concurrent Resolution. S[ENATOR] T[ATAD].May we solicit the legal wisdom of the Senate President. T[HE] P[RESIDENT].May I share this information that under Republic Act No. 6645, what is needed is a resolution of this Chamber calling attention to the need for the holding of a special election to fill up the vacancy created, in this particular case, by the appointment of our colleague, Senator Guingona, as Vice President. It can be managed in the Commission on Elections so that a slot for the particular candidate to fill up would be that reserved for Mr. Guingonas unexpired term. In other words, it can be arranged in such a manner. x x x x x x x x x S[ENATOR] R[OCO].Mr. President. T[HE] P[RESIDENT].Sen. Raul S. Roco is recognized. S[ENATOR] R[OCO].May we suggest, subject to a oneminute caucus, wordings to the effect that in the simultaneous elections, the 13th placer be therefore deemed to be the special election for this purpose. So we just nominate 13 and it is good for our colleagues. It is better for the candidates. It is also less expensive because the ballot will be printed and there will be less disenfranchisement. T[HE] P[PRESIDENT].That is right.
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S[ENATOR] R[OCO].If we can just deem it therefore under this resolution to be such a special election, maybe, we satisfy the requirement of the law. T[HE] P[RESIDENT].Yes. In other words, this shall be a guidance for the Comelec. S[ENATOR] R[OCO].Yes. T[HE] P[RESIDENT].to implement. S[ENATOR] R[OCO].Yes. The Comelec will not have the flexibility. T[HE] P[RESIDENT].That is right. S[ENATOR] R[OCO]. We will already consider the 13th placer of the forthcoming elections that will be held simultaneously as a special election under this law as we understand it.
T[HE] P[RESIDENT]. Yes. That will be a good compromise, Senator Roco. S[ENATOR] R[OCO]. Yes. So if the sponsor can introduce that later, maybe it will be better, Mr. President. T[HE] P[RESIDENT]. What does the sponsor say? S[ENATOR] [T]ATAD. Mr. President, that is a most satisfactory proposal because I do not believe that there will be anyone running specifically T[HE] P[RESIDENT]. Correct. S[ENATOR] T[ATAD].to fill up this position for three years and campaigning nationwide. T[HE] P[RESIDENT]. Actually, I think what is going to happen is the 13th candidate will be running with specific groups. S[ENATOR] T[ATAD]. Yes. Whoever gets No. 13. T[HE] P[RESIDENT]. I think we can specifically define that as the intent of this resolution. S[ENATOR] T[ATAD]. Subject to style, we accept that amendment and if there will be no other amendment, I move for the adoption of this resolution. ADOPTION OF S. RES. NO. 934 If there are not other proposed amendments, I move that we adopt this resolution. T[HE] P[RESIDENT]. There is a motion to adopt this resolution. Is there any objection? [Silence] There being 138 none, the motion is approved. ( emphases supplied)
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138
Transcript of Session Proceedings of the Philippine Senate,
February 8, 2001, pp. 51-54. 519
519
The Senates observation that the procedure for the special election that it adopted would be less costly for the government as the ballots need not be printed again to separately indicate the candidate voted for the special election does not also lend justification for the manner of conduct of the May 14, 2001 special election. We cannot bargain the electorates fundamental right to vote intelligently with the coin of convenience. Even with the Senate stance, the regular ballot had to be modified to
include a thirteenth space in the list of senatorial seats to be voted for. At any rate, reliance on R.A. No. 6645 is erroneous. This law provides that when a vacancy arises in the Senate, the Senate, by resolution, certifies to the existence of the vacancy and calls for a special election . Upon receipt of the resolution, the COMELEC holds the special election. R.A. No. 6645 was amended in 1991 by R.A. No. 7166. The latter law provides that when a permanent vacancy occurs in the Senate at least one year before the expiration of the term, the Commission (on Elections) shall call and hold a special election to fill the vacancy... Since under R.A. No. 7166, it is the power and duty of the COMELEC, and not the Senate, to call and hold the election, the Senate cannot, by mere resolution, impose upon the COMELEC the procedure for the special election that it intended such that Comelec will not have the flexibility to deviate therefrom. As a constitutional body created to ensure free, orderly, honest, peaceful, and credible elections, it was the duty of the COMELEC to give to the electorate notice of the time, place and manner of conduct of the special elections and to adopt only those mechanisms and procedures that would ascertain the true will of the people. In sum, I submit that the ruling of the ponencia would result not just to a step back in an age of information, but would constitute a fall in the nations rise to democracy begun as early as the Malolos Constitution and begun anew in the 1987 Constitution after the 1986 People Power Revolution. Informing the electorate on the issues and conduct of an election is a prerequisite to a free, orderly, honest, peaceful, and credible elections. Free elections does not only mean that the voter is not physically restrained from going to the polling booth, but also that the voter is unrestrained by the bondage of ignorance. We should be resolute in affirming the right of the electorate to proper information. The Court should not forfeit its role as gatekeeper of our democratic government run by an informed majority. Let us not open the door to ignorance.
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SUPREME COURT REPORTS ANNOTATED People vs. Cachola
I vote to grant the petition. Petition dismissed. Note .The right to suffrage is so important that every
citizen knows or ought to know that it is his right, duty and privilege to register and vote, if qualified. ( AkbayanYouth vs. Commission on Elections, 355 SCRA 318 [2001]) o0o
VOL. 293, JULY 23, 1998 Ople vs. Torres G.R. No. 127685. July 23, 1998.
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BLAS F. OPLE, petitioner, vs. RUBEN D. TORRES, ALEXANDER AGUIRRE, HECTOR VILLANUEVA, CIELITO HABITO, ROBERT BARBERS, CARMENCITA REODICA, CESAR SARINO, RENATO VALENCIA, TOMAS P. AFRICA, HEAD OF THE NATIONAL COMPUTER CENTER and CHAIRMAN OF THE COMMISSION ON AUDIT, respondents.
Constitutional Law; Administrative Law; Administrative Order No. 308; As a Senator, petitioner is possessed of the requisite standing to bring suit raising the issue that the issuance of Administrative Order No. 308 is a usurpation of legislative power. As is usual in constitutional litigation, respondents raise the threshold issues relating to the standing to sue of the petitioner and the justiciability of the case at bar. More specifically, respondents aver that petitioner has no legal interest to uphold and that the implementing rules of A.O. No. 308 have yet to be promulgated. These submissions do not deserve our sympathetic ear. Petitioner Ople is a distinguished member of our Senate. As a Senator, petitioner is possessed of the requisite standing to bring suit raising the issue that the issuance of A.O. No. 308 is a usurpation of legislative power. As taxpayer and member of the Government Service Insurance System (GSIS), petitioner can also impugn the legality of the misalignment of public funds and the misuse of GSIS funds to implement A.O. No. 308. Same; Same; Same; Administrative power is concerned with the work of applying policies and enforcing orders as determined by proper governmental organs. Administrative power is concerned with the work of applying policies and enforcing orders as determined by proper governmental organs. It enables the President to fix a uniform standard of administrative efficiency and check the official conduct of his agents. To this end, he can issue administrative orders, rules and regulations.
Same; Same; Same; Administrative Order No. 308 involves a subject that is not appropriate to be covered by an administrative order. Prescinding from these precepts, we hold that A.O. No. 308
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*
EN BANC.
142
142
SUPREME COURT REPORTS ANNOTATED Ople vs. Torres
involves a subject that is not appropriate to be covered by an administrative order. x x x An administrative order is an ordinance issued by the President which relates to specific aspects in the administrative operation of government. It must be in harmony with the law and should be for the sole purpose of implementing the law and carrying out the legislative policy. Same; Same; Same; Argument that Administrative Order No. 308 implements the legislative policy of the Administrative Code of 1987 rejected.We reject the argument that A.O. No. 308 implements the legislative policy of the Administrative Code of 1987. The Code is a general law and incorporates in a unified document the major structural, functional and procedural principles of governance and embodies changes in administrative structures and procedures designed to serve the people. Same; Same; Same; Administrative Order No. 308 cannot pass constitutional muster as an administrative legislation because facially it violates the right to privacy. Assuming, arguendo, that A.O. No. 308 need not be the subject of a law, still it cannot pass constitutional muster as an administrative legislation because facially it violates the right to privacy. The essence of privacy is the right to be let alone. Same; Same; Same; Any law or order that invades individual privacy will be subjected by the Court to strict scrutiny. In no uncertain terms, we also underscore that the right to privacy does not bar all incursions into individual privacy. The right is not intended to stifle scientific and technological advancements that enhance public service and the common good. It merely requires that the law be narrowly focused and a compelling interest justify
such intrusions. Intrusions into the right must be accompanied by proper safeguards and well-defined standards to prevent unconstitutional invasions. We reiterate that any law or order that invades individual privacy will be subjected by this Court to strict scrutiny.
KAPUNAN, J., Dissenting Opinion

Constitutional Law; Administrative Law; Administrative Order No. 308; The new identification system would tremendously improve and uplift public service in our country to the benefit of Filipino citizens and resident aliens. The new identification system would
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tremendously improve and uplift public service in our country to the benefit of Filipino citizens and resident aliens. It would promote, facilitate and speed up legitimate transactions with government offices as well as with private and business entities. Experience tells us of the constant delays and inconveniences the public has to suffer in availing of basic public services and social security benefits because of inefficient and not too reliable means of identification of the beneficiaries. Same; Same; Same; The Administrative Code of 1987 has unequivocally vested the President with quasi-legislative powers in the form of executive orders, administrative orders, proclamations, memorandum orders and circulars and general or special orders. The Administrative Code of 1987 has unequivocally vested the President with quasi-legislative powers in the form of executive orders, administrative orders, proclamations, memorandum orders and circulars and general or special orders. An administrative order, like the one under which the new identification system is embodied, has its peculiar meaning under the 1987 Administrative Code: SEC. 3. Administrative Orders. Acts of the President which relate to particular aspects of governmental operations in pursuance of his duties as administrative head shall be promulgated in administrative orders.
MENDOZA, J., Separate Opinion

Constitutional Law; Administrative Law; Administrative Order
No. 308; Petitioner Blas F. Ople has no cause of action and, therefore, no standing to bring the action. Given the fact that no right of privacy is involved in this case and that any objection to the Identification Reference System on the ground that it violates freedom of thought is premature, speculative, or conjectural pending the issuance of the implementing rules, it is clear that petitioner Blas F. Ople has no cause of action and, therefore, no standing to bring this action. Indeed, although he assails A.O. No. 308 on the ground that it violates the right of privacy, he claims no personal injury suffered as a result of the Order in question. Instead, he says he is bringing this action as taxpayer, Senator, and member of the Government Service Insurance System.
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PETITION to review a decision of the Executive Secretary and the Members of the Inter-Agency Coordinating Committee. The facts are stated in the opinion of the Court. Manuel Joseph R. Bretana III for petitioner. The Solicitor General for respondents. PUNO, J.: The petition at bar is a commendable effort on the part of Senator Blas F. Ople to prevent the shrinking of the right to privacy, which the revered Mr. Justice Brandeis considered as the most comprehensive of rights and the 1 right most valued by civilized men. Petitioner Ople prays that we invalidate Administrative Order No. 308 entitled Adoption of a National Computerized Identification Reference System on two important constitutional grounds, viz. : one, it is a usurpation of the power of Congress to legislate, and two, it impermissibly intrudes on our citizenrys protected zone of privacy. We grant the petition for the rights sought to be vindicated by the petitioner need stronger barriers against further erosion. A.O. No. 308 was issued by President Fidel V. Ramos on December 12, 1996 and reads as follows:
ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM WHEREAS, there is a need to provide Filipino citizens and foreign residents with the facility to conveniently transact business with
basic service and social security providers and other government instrumentalities; WHEREAS, this will require a computerized system to properly and efficiently identify persons seeking basic services on social
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1
Dissenting Opinion of Justice Brandeis in Olmstead v. United States, 277
U.S. 438, 478 [1928].
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security and reduce, if not totally eradicate, fraudulent transactions and misrepresentations; WHEREAS, a concerted and collaborative effort among the various basic services and social security providing agencies and other government instrumentalities is required to achieve such a system; NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by virtue of the powers vested in me by law, do hereby direct the following: SECTION 1. Establishment of a National Computerized Identification Reference System . A decentralized Identification Reference System among the key basic services and social security providers is hereby established. SEC. 2. Inter-Agency Coordinating Committee. An InterAgency Coordinating Committee (IACC) to draw-up the implementing guidelines and oversee the implementation of the System is hereby created, chaired by the Executive Secretary, with the following as members: Head, Presidential Management Staff Secretary, National Economic Development Authority Secretary, Department of the Interior and Local Government Secretary, Department of Health Administrator, Government Service Insurance System Administrator, Social Security System Administrator, National Statistics Office Managing Director, National Computer Center SEC. 3. Secretariat . The National Computer Center (NCC) is hereby designated as secretariat to the IACC and as such shall provide administrative and technical support to the IACC. SEC. 4. Linkage Among Agencies . The Population Reference Number (PRN) generated by the NSO shall serve as the common reference number to establish a linkage among concerned agencies. The IACC Secretariat shall coordinate with the different Social
Security and Services Agencies to establish the standards in the use of Biometrics Technology and in computer application designs of their respective systems. SEC. 5. Conduct of Information Dissemination Campaign . The Office of the Press Secretary, in coordination with the National Statistics Office, the GSIS and SSS as lead agencies and other concerned agencies shall undertake a massive tri-media information
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dissemination campaign to educate and raise public awareness on the importance and use of the PRN and the Social Security Identification Reference. SEC. 6. Funding. The funds necessary for the implementation of the system shall be sourced from the respective budgets of the concerned agencies. SEC. 7. Submission of Regular Reports. The NSO, GSIS and SSS shall submit regular reports to the Office of the President, through the IACC, on the status of implementation of this undertaking. SEC. 8. Effectivity . This Administrative Order shall take effect immediately. DONE in the City of Manila, this 12th day of December in the year of Our Lord, Nineteen Hundred and Ninety-Six. (SGD.) FIDEL V. RAMOS
A.O. No. 308 was published in four newspapers of general circulation on January 22, 1997 and January 23, 1997. On January 24, 1997, petitioner filed the instant petition against respondents, then Executive Secretary Ruben Torres and the heads of the government agencies, who as members of the Inter-Agency Coordinating Committee, are charged with the implementation of A.O. No. 308. On April 8, 1997, we issued a temporary restraining order enjoining its implementation. Petitioner contends: A. THE ESTABLISHMENT OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM REQUIRES A LEGISLATIVE ACT. THE ISSUANCE OF A.O. NO. 308 BY THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES IS, THEREFORE, AN UNCONSTITUTIONAL
USURPATION OF THE LEGISLATIVE POWERS OF THE CONGRESS OF THE REPUBLIC OF THE PHILIPPINES. B. THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR THE IMPLEMENTATION OF A.O. NO. 308 IS AN UNCONSTITUTIONAL USURPATION OF THE EXCLUSIVE RIGHT OF CONGRESS TO APPROPRIATE PUBLIC FUNDS FOR EXPENDITURE.
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C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE GROUNDWORK FOR A SYSTEM WHICH WILL VIOLATE THE BILL OF RIGHTS 2 ENSHRINED IN THE CONSTITUTION. Respondents counter-argue: A. THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS WOULD WARRANT A JUDICIAL REVIEW; B. A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE AND ADMINISTRATIVE POWERS OF THE PRESIDENT WITHOUT ENCROACHING ON THE LEGISLATIVE POWERS OF CONGRESS; C. THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF THE IDENTIFICATION REFERENCE SYSTEM MAY BE SOURCED FROM THE BUDGETS OF THE CONCERNED AGENCIES; D. A.O. NO. 308 [1996] PROTECTS AN 3 INDIVIDUALS INTEREST IN PRIVACY. We now resolve. I As is usual in constitutional litigation, respondents raise the threshold issues relating to the standing to sue of the petitioner and the justiciability of the case at bar. More
specifically, respondents aver that petitioner has no legal interest to uphold and that the implementing rules of A.O. No. 308 have yet to be promulgated. These submissions do not deserve our sympathetic ear. Petitioner Ople is a distinguished member of our Senate. As a Senator, petitioner is possessed of the requisite standing to bring suit raising the issue that the issuance of A.O. No. 308
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2 3
Petition, p. 9, Rollo, p. 11. Comment, pp. 6, 9, 14, 15, Rollo, pp. 65, 68, 73-74. 148
148
is a usurpation of legislative power. As taxpayer and member of the Government Service Insurance System (GSIS), petitioner can also impugn the legality of the misalignment of public funds and the misuse of GSIS funds 5 to implement A.O. No. 308. The ripeness for adjudication of the petition at bar is not affected by the fact that the implementing rules of A.O. No. 308 have yet to be promulgated. Petitioner Ople assails A.O. No. 308 as invalid per se and as infirmed on its face. His action is not premature for the rules yet to be promulgated cannot cure its fatal defects. Moreover, the respondents themselves have started the implementation of A.O. No. 308 without waiting for the rules. As early as January 19, 1997, respondent Social Security System (SSS) caused the publication of a notice to bid for the 6 manufacture of the National Identification (ID) card. Respondent Executive Secretary Torres has publicly announced that representatives from the GSIS and the SSS have completed the guidelines for the national 7 identification system. All signals from the respondents show their unswerving will to implement A.O. No. 308 and we need not wait for the formality of the rules to pass judgment on its constitutionality. In this light, the dissenters insistence that we tighten the rule on standing is not a commendable stance as its result would be to throttle an important constitutional principle and a fundamental right.
II We now come to the core issues. Petitioner claims that A.O. No. 308 is not a mere administrative order but a law and hence, beyond the power of the President to issue . He alleges
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4
Philconsa v. Enriquez, 235 SCRA 506 [1994]; Guingona v. PCGG,
207 SCRA 659 [1992]; Tolentino v. Commission on Elections, 41 SCRA 702 [1971].
5
Sanidad v. Commission on Elections, 73 SCRA 333 [1976]; Pascual Invitation to Bid, Annex E to the Petition, Rollo, p. 50. Annex B to Petitioners Reply, Rollo, p. 144. 149
v. Secretary of Public Works, 110 Phil. 331 [1960].

6 7
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that A.O. No. 308 establishes a system of identification that is all-encompassing in scope, affects the life and liberty of every Filipino citizen and foreign resident, and more particularly, violates their right to privacy. Petitioners sedulous concern for the Executive not to trespass on the lawmaking domain of Congress is understandable. The blurring of the demarcation line between the power of the Legislature to make laws and the power of the Executive to execute laws will disturb their delicate balance of power and cannot be allowed. Hence, the exercise by one branch of government of power belonging to another will be given a stricter scrutiny by this Court. The line that delineates Legislative and Executive power is not indistinct. Legislative power is the authority, under the Constitution, to make laws, and to alter and repeal 8 them. The Constitution, as the will of the people in their original, sovereign and unlimited capacity, 9has vested this power in the Congress of the Philippines. The grant of legislative power to Congress is broad, general and 10 comprehensive. The legislative body possesses plenary 11 power for all purposes of civil government. Any power, deemed to be legislative by usage and tradition, is necessarily possessed by 12 Congress, unless the Constitution has lodged it elsewhere. In fine, except as limited by the Constitution, either expressly or impliedly, legislative power embraces all subjects and 13 extends to matters of general concern or common interest.
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8
Government of the Philippine Islands v. Springer, 50 Phil. 259, 276 Section 1, Article VI, 1987 Constitution. Fernando, The Philippine Constitution, pp. 175-176 [1974]. Id ., at 177; citing the concurring opinion of Justice Laurel in Vera v. Avelino, 77 Phil. 192, 212 [1936]. See concurring opinion of Justice Laurel in Schneckenburger v.
[1927].
9 10 11
Schneckenburger v. Moran, 63 Phil. 249, 266 [1936].

12 13
Moran, supra , at 266-267. 150
150
While Congress is vested with the power to enact laws, the 14 President executes the laws . The executive power is vested 15 in the President. It is generally defined as the power to 16 enforce and administer the laws. It is the power of carrying the laws into practical operation and enforcing 17 their due observance. As head of the Executive Department, the President is the Chief Executive. He represents the government as a whole and sees to it that all laws are 18 enforced by the officials and employees of his department. He has control over the executive department, bureaus and offices. This means that he has the authority to assume directly the functions of the executive department, bureau and office, or 19 interfere with the discretion of its officials. Corollary to the power of control, the President also has the duty of supervising the enforcement of laws for the maintenance of general peace and public order. Thus, he is granted administrative power over bureaus and offices under 20 his control to enable him to discharge his duties effectively. Administrative power is concerned with the work of applying policies and enforcing orders as determined by 21 proper governmental organs. It enables the President to fix a uniform standard of administrative efficiency and check the offi_______________
14
Government of the Philippine Islands v. Springer, 50 Phil. 259, Section 1, Article VII, 1987 Constitution. Cruz, Philippine Political Law, p. 173 [1996].
305 [1927].
15 16
17
Taada and Carreon, Political Law of the Philippines, vol. 1, p. Section 17, Article VII of the 1987 Constitution provides: Sec. 17.
275 [1961].
18
The President shall have control of all the executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed.
19 20 21
Pelaez v. Auditor General, 15 SCRA 569, 583 [1965]. Sinco, Philippine Political Law, pp. 234-235 [1962]. Id ., at 234. 151
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cial conduct of his agents. To this end, he can issue administrative orders, rules and regulations. Prescinding from these precepts, we hold that A.O. No. 308 involves a subject that is not appropriate to be covered by an administrative order. An administrative order is:
Sec. 3. Administrative Orders .Acts of the President which relate to particular aspects of governmental operation in pursuance of his duties as administrative head shall be promulgated in 23 administrative orders.
22
An administrative order is an ordinance issued by the President which relates to specific aspects in the administrative operation of government. It must be in harmony with the law and should be for the sole purpose of implementing the law and carrying out the legislative 24 policy. We reject the argument that A.O. No. 308 implements the legislative policy of the Administrative Code of 1987. The Code is a general law and incorporates in a unified document the major structural, functional and 25 procedural principles of governance and embodies changes in administrative structures and procedures 26 designed to serve the people. The Code is divided into seven (7) Books: Book I deals with Sovereignty and General Administration, Book II with the Distribution of Powers of the three branches of Government, Book III on the Office of the President, Book IV on the Executive Branch, Book V on the Constitutional Commissions, Book VI on National Government Budgeting, and Book VII on Administrative Procedure. These Books contain provisions on the organization, powers and general administration of the executive, legislative and judicial branches of government, the organization and ad-
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22 23
Id ., at 235. Section 3, Chapter 2, Title I, Book III, Administrative Code of Cruz, Philippine Administrative Law, p. 18 [1991]. Third Whereas Clause, Administrative Code of 1987. Fourth Whereas Clause, Administrative Code of 1987. 152
1987.
24 25 26
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ministration of departments, bureaus and offices under the executive branch, the organization and functions of the Constitutional Commissions and other constitutional bodies, the rules on the national government budget, as well as guidelines for the exercise by administrative agencies of quasi-legislative and quasi-judicial powers. The Code covers both the internal administration of government, i.e., internal organization, personnel and recruitment, supervision and discipline, and the effects of the functions performed by administrative officials on 27 private individuals or parties outside government. It cannot be simplistically argued that A.O. No. 308 merely implements the Administrative Code of 1987. It establishes for the first time a National Computerized Identification Reference System. Such a System requires a delicate adjustment of various contending state policies the primacy of national security, the extent of privacy interest against dossiergathering by government, the choice of policies, etc. Indeed, the dissent of Mr. Justice Mendoza states that the A.O. No. 308 involves the allimportant freedom of thought. As said administrative order redefines the parameters of some basic rights of our citizenry vis-a-vis the State as well as the line that separates the administrative power of the President to make rules and the legislative power of Congress, it ought to be evident that it deals with a subject that should be covered by law. Nor is it correct to argue as the dissenters do that A.O. No. 308 is not a law because it confers no right, imposes no duty, affords no protection, and creates no office. Under A.O. No. 308, a citizen cannot transact business with government agencies delivering basic services to the people without the contemplated identification card. No citizen
will refuse to get this identification card for no one can avoid dealing with government. It is thus clear as daylight that without the ID, a citizen will have difficulty exercising his rights and enjoying
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27
See Cortes, Philippine Administrative Law, pp. 2-5 [1984]. 153
153
his privileges. Given this reality, the contention that A.O. No. 308 gives no right and imposes no duty cannot stand. Again, with due respect, the dissenting opinions unduly expand the limits of administrative legislation and consequently erodes the plenary power of Congress to make laws. This is contrary to the established approach defining the traditional limits of administrative legislation. As well stated by Fisher: x x x Many regulations however, bear directly on the public. It is here that administrative legislation must be restricted in its scope and application. Regulations are not supposed to be a substitute for the general policy-making that Congress enacts in the form of a public law. Although administrative regulations are entitled to respect, the authority to prescribe rules and regulations is not an independent source of power to make 28 laws. III Assuming, arguendo, that A.O. No. 308 need not be the subject of a law, still it cannot pass constitutional muster as an administrative legislation because facially it violates the right to privacy. The essence of privacy is the right to 29 In the 1965 case of Griswold v. be let alone. 30 Connecticut, the United States Supreme Court gave more substance to the right of privacy when it ruled that the right has a constitutional foundation. It held that there is a right of privacy which can be found within the penumbras 31 of the First, Third, Fourth, Fifth and Ninth Amendments, viz. :
_______________
28
Fisher, Constitutional Conflicts Between Congress and the
President, 4th ed., pp. 106-107.

29
Cooley on Torts, Sec. 135, vol. 1, 4th ed., [1932]; see also Warren
and Brandeis, The Right to Privacy, 4 Harvard Law Review 193-220 [1890]this article greatly influenced the enactment of privacy statutes in the United States (Cortes, I., The Constitutional Foundations of Privacy, p. 15 [1970]).
30 31
381 U.S. 479, 14 L. ed. 2d 510 [1965]. AMENDMENT I [1791] 154
154
Specific guarantees in the Bill of Rights have penumbras formed by emanations from these guarantees that help give them life and substance x x x. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers in any house in time of peace without the consent of the owner is another facet of that
_________________
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
AMENDMENT III [1791]

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
AMENDMENT IV [1791]
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
AMENDMENT V [1791]
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. xxx
AMENDMENT IX [1791]
The enumeration in the Constitution, of certain rights,shall not be construed to deny or disparage others retained bythe people.
155
155
privacy. The Fourth Amendment explicitly affirms the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
In the 1968 case of Morfe v. Mutuc , we adopted the Griswold ruling that there is a constitutional right to privacy . Speaking thru Mr. Justice, later Chief Justice, Enrique Fernando, we held:
x x x The Griswold case invalidated a Connecticut statute which made the use of contraceptives a criminal offense on the ground of its amounting to an unconstitutional invasion of the right of privacy of married persons; rightfully it stressed a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. It has wider implications though. The constitutional right to privacy has come into its own. So it is likewise in our jurisdiction. The right to privacy as such is accorded recognition independently of its identification with liberty; in itself, it is fully deserving of constitutional protection. The language of Prof. Emerson is particularly apt: The concept of limited government has always included the idea that governmental powers stop short of certain intrusions into the personal life of the citizen. This is indeed one of the basic distinctions between absolute and limited government. Ultimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute state. In contrast, a system of limited government safeguards a private sector, which belongs to the individual, firmly distinguishing it from the public sector, which the state can control. Protection of this private sectorprotection, in other words, of the dignity and integrity of the individualhas become increasingly important as modern society has developed. All the forces of a technological ageindustrialization, urbanization, and organizationoperate to narrow the area of privacy and facilitate intrusion into it. In modern
32
_______________
32
22 SCRA 424, 444-445.
156
156
terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian society.
Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized33 and enshrined in several provisions of our Constitution. It is expressly recognized in Section 3(1) of the Bill of Rights:
Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.
Other facets of the right to privacy 34 are protected in various provisions of the Bill of Rights , viz .:
Sec. 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. x x x. Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law. x x x.
_______________
33
Morfe v. Mutuc, 22 SCRA 424, 444 [1968]; Cortes, The Cortes, The Constitutional Foundations of Privacy, p. 18 [1970].
Constitutional Foundations of Privacy, p. 18 [1970].

34
157
157
Sec. 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged. Sec. 17. No person shall be compelled to be a witness against himself.
Zones of privacy are likewise recognized and protected in our laws . The Civil Code provides that [e]very person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons and punishes as actionable torts several acts by a 35 person of meddling and prying into the privacy of another. It also holds a public officer or employee or any private individual liable for damages for any violation of the rights and liberties of 36 another person, and recognizes the privacy of letters and 37 other private communications. The Revised Penal 38 Code makes a crime the violation of secrets by an officer, the 39 revelation of trade and industrial secrets, and trespass to 40 dwelling. Invasion of privacy is an offense in
_______________
35
Article 26 of the Civil Code provides:
Art. 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief: (1) Prying into the privacy of anothers residence; (2) Meddling with or disturbing the private life or family relations of another; (3) Intriguing to cause another to be alienated from his friends; (4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition.
36 37 38 39 40
Article 32, Civil Code. Article 723, Civil Code. Article 229, Revised Penal Code. Articles 290-292, Revised Penal Code. Article 280, Revised Penal Code. 158
158
special laws like the42Anti-Wiretapping Law, the Secrecy 43 of Bank Deposits Act and the Intellectual Property Code. The Rules of Court on privileged communication likewise 44 recognize the privacy of certain information. Unlike the dissenters, we prescind from the premise that the right to privacy is a fundamental right guaranteed by the Constitution, hence, it is the burden of government to show that A.O. No. 308 is justified by some compelling state interest and that it is narrowly drawn. A.O. No. 308 is predicated on two considerations: (1) the need to provide our citizens and foreigners with the facility to conveniently transact business with basic service and social security providers and other government instrumentalities and (2) the need to reduce, if not totally eradicate, fraudulent transactions and misrepresentations by persons seeking basic services. It is debatable whether these interests are compelling enough to warrant the issuance of A.O. No. 308. But what is not arguable is the broadness, the vagueness, the overbreadth of A.O. No. 308 which if implemented will put our peoples right to privacy in clear and present danger. The heart of A.O. No. 308 lies in its Section 4 which provides for a Population Reference Number (PRN) as a common reference number to establish a linkage among concerned agencies through the use of Biometrics Technology and computer application designs. Biometry or biometrics is the science of the application of statistical methods to biological facts; a mathematical 45 analysis of biological data. The term biometrics has now evolved
_______________
41 42 43 44 45
41
R.A. 4200. R.A. 1405. R.A. 8293. Section 24, Rule 130 [C], Revised Rules on Evidence. Biometry, Dorlands Illustrated Medical Dictionary, 24th ed.
[1965]. Biometry or biometrics is literally, the measurement of living things; but it is generally used to mean the application of mathematics to biology. The term is now largely obsolete as a bio159
159
into a broad category of technologies which provide precise confirmation of an individuals identity through the use of the individuals own physiological and behavioral 46 A physiological characteristic is a characteristics. relatively stable physical characteristic such as a fingerprint, retinal scan, hand geometry or facial features. A behavioral characteristic is influenced by the individuals personality and includes voice print, signature and 47 keystroke. Most biometric identification systems use a card or personal identification number (PIN) for initial identification. The biometric measurement is used to verify that the individual holding the card or 48 entering the PIN is the legitimate owner of the card or PIN. A most common form of biological encoding is fingerscanning where technology scans a fingertip and turns the unique pattern therein into an individual number which is called 49 a biocrypt. The biocrypt is stored in computer data banks and becomes a means of identifying an individual using a service. This technology requires ones fingertip to 50 be scanned every time service or access is provided. Another method is the retinal scan . Retinal scan technology employs optical technology to map the capillary pattern of the retina of the eye. This technology produces a 51 unique print similar to a fingerprint. Another biometric method is known as the artificial nose. This device chemically analyzes the unique
_______________ logical science since mathematical or statistical work is an integral part of most biological disciplines (The Dictionary of Science [1993]).
46
Biometric
Identification,
http://www.afmc.wpafb.af.mil/=organizations/HQAFMC/LG/LSO/LOA/bio.html; see also Biometrics Explained- Section1, http://www.ncsa.com/services/consortia/cbdc/-sec1.html.

47 48 49 50
Id . Id . Or in microchips of smart cards and magnetic strips of bank cards. Privacy at Risk, Finger-scanning for Ideology and Profit [1998], Biometric Identification, http://www.afmc.wpafb.af.mil/-
file:///DI/commentary.html.
51
organizations/HQ-AFMC/LG/LSO/LOA/bio.html. 160
160
combination of substances excreted from the skin of 52 people. The latest on the list of biometric achievements is the thermogram. Scientists have found that by taking pictures of a face using infrared cameras, a unique heat distribution pattern is seen. The different densities of bone, skin, fat and blood vessels all contribute to the individuals 53 personal heat signature. In the last few decades, technology has progressed at a galloping rate. Some science fictions are now science facts. Today, biometrics is no longer limited to the use of fingerprint to identify an individual. It is a new science that uses various technologies in encoding any and all biological characteristics of an individual for identification. It is noteworthy that A.O. No. 308 does not state what specific biological characteristics and what particular biometrics technology shall be used to identify people who will seek its coverage. Considering the banquet of options available to the implementors of A.O. No. 308, the fear that it threatens the right to privacy of our people is not groundless. A.O. No. 308 should also raise our antennas for a further look will show that it does not state whether encoding of data is limited to biological information alone for identification purposes. In fact, the Solicitor General claims that the adoption of the Identification Reference System will contribute to the generation of population data for 54 development planning. This is an admission that the PRN will not be used solely for identification but for the generation of other data
_______________
52
The Libertarian Library: Facing Up to Biometrics, The Mouse
Monitor, The International Journal of Bureau-Rat Control [1998], http://www.cyberhaven.com/libertarian/biomet.html.

53
Id . The thermogram is so accurate that it can tell identical twins
apart and cannot be fooled by cosmetic surgery or disguises, including facial hair.
54
An updated national population register will provide a suitable
base for all types of planning and programming of government facilities and services (Memorandum of the Solicitor General, p. 20, Rollo, p. 210). 161
161
with remote relation to the avowed purposes of A.O. No. 308. Clearly, the indefiniteness of A.O. No. 308 can give the government the roving authority to store and retrieve information for a purpose other than the identification of the individual through his PRN. The potential for misuse of the data to be gathered under A.O. No. 308 cannot be underplayed as the dissenters do. Pursuant to said administrative order, an individual must present his PRN everytime he deals with a government agency to avail of basic services and security. His transactions with the government agency will necessarily be recordedwhether it be in the computer or in the documentary file of the agency. The individuals file may include his transactions for loan availments, income tax returns, statement of assets and liabilities, reimbursements for medication, hospitalization, etc. The more frequent the use of the PRN, the better the chance of building a huge and formidable information base through 55 the electronic linkage of the files. The data may be gathered for gainful and useful government purposes; but the existence of this vast reservoir of personal information constitutes a covert invitation to misuse, a temptation that 56 may be too great for some of our authorities to resist. We can even grant, arguendo, that the computer data file will be limited to the name, address and other basic 57 personal information about the individual. Even that hospitable assumption will not save A.O. No. 308 from constitutional infirmity for again said order does not tell us in clear and categorical terms how these information gathered shall be han_______________
55
Simitis, Reviewing Privacy in an Information Society, University Sloan, I. Law of Privacy Rights in a Technological Society, p. 6 Respondent GSIS, through counsel, claims that the basic
of Pennsylvania Law Review, vol. 135:707, 717 [March 1985].

56
[1986].
57
information shall be limited to the individuals full name, place of birth, date of birth, photograph, signature and thumbmark (Comment of Respondent GSIS, p. 6, Rollo, p. 101). 162
162
Ople vs. Torres dled. It does not provide who shall control and access the data, under what circumstances and for what purpose. These factors are essential to safeguard the privacy and 58 guaranty the integrity of the information. Well to note, the computer linkage gives other government agencies access to the information. Yet, there are no controls to guard against leakage of information. When the access code of the control programs of the particular computer system is broken, an intruder, without fear of sanction or penalty, can make use of the data for whatever purpose, or worse, 59 manipulate the data stored within the system. It is plain and we hold that A.O. No. 308 falls short of assuring that personal information which will be gathered about our people will only be processed for unequivocally 60 specified purposes. The lack of proper safeguards in this regard of A.O. No. 308 may interfere with the individuals liberty of abode and travel by enabling authorities to track down his movement; it may also enable unscrupulous persons to access confidential information and circumvent the right against self-incrimination; it may pave the way for fishing expeditions by government authorities and evade the right against unreasonable searches and 61 seizures. The possibilities of abuse and misuse of the PRN, biometrics and computer technology are accentuated when we consider that the individual lacks control over what can be read or placed on 62 his ID, much less verify the correctness of the data encoded. They
_______________
58
Otani, K. Information Security in the Network Age, 70 Cortes, I., The Constitutional Foundations of Privacy, p. 12 [1970]. Simitis, Reviewing Privacy in an Information Society, University Ibid., p. 718. The right to control the collection, maintenance, use, and
Philippine Law Journal, 1, 9 [1995].

59 60
of Pennsylvania Law Review, vol. 135:707, 740 [March 1987].

61 62
dissemination of data about oneself is called informational privacy (Hancock, G., Californias Privacy Act: Controlling Governments Use of Information? 32 Stanford Law Review No. 5, p. 1001 [May 163
163
threaten63the very abuses that the Bill of Rights seeks to prevent. The ability of a sophisticated data center to generate a comprehensive cradle-to-grave dossier on an individual and transmit it over a national network is one of the most 64 graphic threats of the computer revolution. The computer is capable of producing a comprehensive dossier on individuals out of information given at different times and 65 for varied purposes. It can continue adding to the stored data and keeping the information up to date. Retrieval of stored data is simple. When information of a privileged character finds its way into the computer, it 66can be extracted together with other data on the subject. Once extracted, the information is putty in the hands of any person. The end of privacy begins. Though A.O. No. 308 is undoubtedly not narrowly drawn, the dissenting opinions would dismiss its danger to the right to privacy as speculative and hypothetical. Again, we cannot countenance such a laidback posture. The Court will not be true to its role as the ultimate guardian of the peoples liberty if it would not immediately smother the sparks that endanger their rights but would rather wait for the fire that could consume them. We reject the argument of the Solicitor General that an individual has a reasonable expectation of privacy with regard
_______________ 1980]. The right to make personal decisions or conduct personal activities without intrusion, observation or interference is called autonomy privacy (Hill v. NCAA, 865 P. 2d 633, 652-654 [Cal. 1994].
63
Hosch, The Interest in Limiting the Disclosure of Personal
Information: A Constitutional Analysis, Vanderbilt Law Review, vol. 36:139, 142 [Jan. 1983].
64
Miller, Personal Privacy in the Computer Age, The Challenge of a
New Technology in an Information-Oriented Society, 67 Michigan Law Review 1091, 1119 [1969]; see also Cortes, supra , at 13.
65 66
Cortes, I. The Constitutional Foundations of Privacy, p. 12 [1970]. Id . 164
164
to the National ID and the use of biometrics technology as it stands on quicksand. The reasonableness of a persons
expectation of privacy depends on a two-part test: (1) whether by his conduct, the individual has exhibited an expectation of privacy; and (2) whether this67expectation is one that society recognizes as reasonable. The factual circumstances of the case determine the reasonableness of 68 the expectation. However, other factors, such as customs, physical surroundings and practices of a particular 69 activity, may serve to create or diminish this expectation. The use of biometrics and computer technology in A.O. No. 308 does not assure the individual of a reasonable 70 expectation of privacy. As technology advances, the level 71 of reasonably expected privacy decreases. The measure of protection granted by the reasonable expectation diminishes as relevant technology becomes more widely 72 accepted. The security of the computer data file depends not
_______________
67
Rakas v. Illinois, 439 U.S. 128, 143-144 [1978]; see the decision
and Justice Harlans concurring opinion in Katz v. United States, 389 U.S. 347, 353, 361, 19 L. ed. 2d 576, 583, 587-589 [1967]; see also Southard, Individual Privacy and Governmental Efficiency: Technologys Effect on the Governments Ability to Gather, Store, and Distribute Information (Computer/Law Journal, vol. IX, pp. 359, 367, note 63 [1989]).
68
Kennedy, Note: Emasculating a States Constitutional Right to
Privacy: The California Supreme Courts Decision in Hill v. NCAA, Temple Law Review, vol. 68:1497, 1517 [1995].
69 70 71
Id . Southard, supra , at 369. Id.; see also Laurence H. Tribe, The Constitution in Cyberspace:
Law and Liberty Beyond the Electronic Frontier, Keynote Address at the First Conference on Computers, Freedom and Privacy, at Jim Warren & Computer Professionals for Social Responsibility [1991].
72
As one author has observed, previously, one could take steps to
ensure an expectation of privacy in a private place, e.g., locking of doors and closing of curtains. Because advances in surveillance technology have made these precautions meaningless, the expectation of the privacy they offer is no longer justifiable and reasonable Southard, supra , at 369. 165
165
only on the physical inaccessibility of the file but also on
the advances in hardware and software computer technology. A.O. No. 308 is so widely drawn that a minimum standard for a reasonable expectation of privacy, regardless of technology used, cannot be inferred from its provisions. The rules and regulations to be drawn by the IACC cannot remedy this fatal defect. Rules and regulations merely implement the policy of the law or order. On its face, A.O. No. 308 gives the IACC virtually unfettered discretion to determine the metes and bounds of the ID System. Nor do our present laws provide adequate safeguards for a reasonable expectation of privacy. Commonwealth Act No. 591 penalizes the disclosure by any person of data furnished 73 by the individual to the NSO with imprisonment and fine. Republic Act No. 1161 prohibits 74 public disclosure of SSS employment records and reports. These laws, however, apply to records and data with the NSO and the SSS. It is not clear whether they may be applied to data with the other government agencies forming part of the National ID System. The need to clarify the penal aspect of A.O. No. 308 is another reason why its enactment should be given to Congress. Next, the Solicitor General urges us to validate A.O. No. 308s abridgment of the75 right of privacy by using the rational relationship test . He stressed that the purposes of A.O. No. 308 are: (1) to streamline and speed up the implementation of basic government services, (2) eradicate fraud by avoiding duplication of services, and (3) generate population data for development planning. He concludes that these purposes justify the incursions into the right to 76 privacy for the means are rationally related to the end. We are not impressed by the argument. In Morfe v. 77 Mutuc , we upheld the constitutionality of R.A. 3019, the Anti_______________
73 74 75 76 77
Section 4, Commonwealth Act No. 591 [1940]. Sections 24 [c] and 28 [e], R.A. 1161, as amended. Citing Morfe v. Mutuc, 22 SCRA 424, 445 [1968]. Comment of the Solicitor General, p. 16, Rollo, p. 75. Op. cit., note 76. 166
166
Graft and Corrupt Practices Act, as a valid police power measure. We declared that the law, in compelling a public officer to make an annual report disclosing his assets and liabilities, his sources of income and expenses, did not infringe on the individuals right to privacy. The law was enacted to promote morality in public administration by curtailing and minimizing the opportunities for official corruption and maintaining a standard of honesty in the 78 public service. The same circumstances do not obtain in the case at bar. For one, R.A. 3019 is a statute, not an administrative order. Secondly, R.A. 3019 itself is sufficiently detailed. The law is clear on what practices were prohibited and penalized, and it was narrowly drawn to avoid abuses. In the case at bar, A.O. No. 308 may have been impelled by a worthy purpose, but, it cannot pass constitutional scrutiny for it is not narrowly drawn. And we now hold that when the integrity of a fundamental right is at stake, this Court will give the challenged law, administrative order, rule or regulation a stricter scrutiny. It will not do for the authorities to invoke the presumption of regularity in the performance of official duties. Nor is it enough for the authorities to prove that their act is not irrational for a basic right can be diminished, if not defeated, even when the government does not act irrationally. They must satisfactorily show the presence of compelling state interests and that the law, rule, or regulation is narrowly drawn to preclude abuses. This approach is demanded by the 1987 Constitution whose entire matrix is designed to protect human rights and to prevent authoritarianism. In case of doubt, the least we can do is to lean towards the stance that will not put in danger the rights protected by the Constitution. 79 The case of Whalen v. Roe cited by the Solicitor General is also off-line. In Whalen, the United States Supreme Court was presented with the question of whether the State of New York could keep a centralized computer record of the names and addresses of all persons who obtained certain drugs pur_______________
78 79
Id ., at 435. 429 U.S. 589, 51 L ed. 2d 64 [1977]. 167
VOL. 293, JULY 23, 1998
167
Ople vs. Torres suant to a doctors prescription. The New York State Controlled Substances Act of 1972 required physicians to identify patients obtaining prescription drugs enumerated in the statute, i.e., drugs with a recognized medical use but with a potential for abuse, so that the names and addresses of the patients can be recorded in a centralized computer file of the State Department of Health. The plaintiffs, who were patients and doctors, claimed that some people might decline necessary medication because of their fear that the computerized data may be readily available and open to public disclosure; and that once disclosed, it may 80 stigmatize them as drug addicts. The plaintiffs alleged that the statute invaded a constitutionally protected zone of privacy, i.e., the individuals interest in avoiding disclosure of personal matters, and the interest in independence in making certain kinds of important decisions. The U.S. Supreme Court held that while an individuals interest in avoiding disclosure of personal matters is an aspect of the right to privacy, the statute did not pose a grievous threat to establish a constitutional violation. The Court found that the statute was necessary to aid in the enforcement of laws designed to minimize the misuse of dangerous drugs. The patient-identification requirement was a product of an orderly and rational legislative decision made upon recommendation by a specially appointed commission which held extensive hearings on the matter. Moreover, the statute was narrowly drawn and contained numerous safeguards against indiscriminate disclosure. The statute laid down the procedure and requirements for the gathering, storage and retrieval of the information. It enumerated who were authorized to access the data. It also prohibited public disclosure of the data by imposing penalties for its violation. In view of these safeguards, the infringement of the patients right to privacy was justified by a valid exercise of police power. As we discussed above, A.O. No. 308 lacks these vital safeguards.
_______________
80
Some of the patients were children whose parents feared would be
stigmatized by the States central filing system. 168
168
Ople vs. Torres Even while we strike down A.O. No. 308, we spell out in neon that the Court is not per se against the use of computers to accumulate, store, process, retrieve and transmit data to improve our bureaucracy. Computers work wonders to achieve the efficiency which both government and private industry seek. Many information systems in different countries make use of the computer to facilitate important social objectives, such as better law enforcement, faster delivery of public services, more efficient management of credit and insurance programs, improvement of telecommunications and streamlining of 81 financial activities. Used wisely, data stored in the computer could help good administration by making accurate and comprehensive information for those who 82 have to frame policy and make key decisions. The benefits of the computer has revolutionized information technology. 83 It developed the internet, introduced the concept of 84 cyberspace and the information superhighway where the individual, armed only with his personal computer, may surf and search all kinds and classes of information from libraries and databases connected to the net.
_______________
81
Sloan, Law of Privacy Rights in a Technological Society, p. 4 Southard, Individual Privacy and Governmental Efficiency:
[1986].
82
Technologys Effect on the Governments Ability to Gather, Store, and Distribute Information, IX Computer/Law Journal 359, 360 [1989].
83
The Internet is a decentralized network interconnected by the
TCP/IP protocol. The Net was started as a military network ARPANET in 1969 by the US Department of Defense for the purpose of networking main frame computers to prepare against missile weapons. It opened to public research organizations and universities in 1983 and has been interconnected with commercial networks since 1990 (Kazuko Otani, Information Security in the Network Age, Philippine Law Journal, vol. 70:1, 2 [1995]).
84
Cyberspace is a place located in no particular geographical
location but available to anyone, anywhere in the world, with access to the internet (Darrel Menthe, Jurisdiction in Cyberspace: A Theory of International Spaces 4 Mich. Tel. Tech. L. Rev. 3 (April 23, 1998), <http://www.law.umich.edu/mttlr/volfour/menthe.html>. 169
VOL. 293, JULY 23, 1998
169
Ople vs. Torres In no uncertain terms, we also underscore that the right to privacy does not bar all incursions into individual privacy. The right is not intended to stifle scientific and technological advancements that enhance public service and the common 85 good. It merely requires that the law be narrowly focused and a compelling interest justify such 86 intrusions. Intrusions into the right must be accompanied by proper safeguards and well-defined standards to prevent unconstitutional invasions. We reiterate that any law or order that invades individual privacy will be subjected by this Court to strict scrutiny. The reason for this stance was laid down in Morfe v. Mutuc , to wit:
The concept of limited government has always included the idea that governmental powers stop short of certain intrusions into the personal life of the citizen. This is indeed one of the basic distinctions between absolute and limited government. Ultimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute state. In contrast, a system of limited government safeguards a private sector, which belongs to the individual, firmly distinguishing it from the public sector, which the state can control. Protection of this private sectorprotection, in other words, of the dignity and integrity of the individualhas become increasingly important as modern society has developed. All the forces of a technological ageindustrialization, urbanization, and organizationoperate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave of private life marks 87 the difference between a democratic and a totalitarian society.
_______________
85 86
Southard, supra , at 361-362. Id.; White v. Davis, 533 P. 2d 222 [Cal. 1975]; City of Sta. Barbara
v. Adamson, 610 P. 2d 436 [Cal. 1980]. In his concurring opinion in Whalen v. Roe, Justice Brennan stated that a statute that deprives an individual of his privacy is not unconstitutional only if it was necessary to promote a compelling state interest (429 U.S. 589, 606-607, 51 L. ed. 2d 64, 77-78).
87
Morfe v. Mutuc, supra , at 444-445 citing Emerson, Nine Justices
in Search of a Doctrine, 64 Michigan Law Review 219, 229 [1965]. 170
170
IV The right to privacy is one of the most threatened rights of man living in a mass society. The threats emanate from various sourcesgovernments, journalists, employers, 88 social scientists, etc. In the case at bar, the threat comes from the executive branch of government which by issuing A.O. No. 308 pressures the people to surrender their privacy by giving information about themselves on the pretext that it will facilitate delivery of basic services. Given the record-keeping power of the computer, only the indifferent will fail to perceive the danger that A.O. No. 308 gives the government the power to compile a devastating dossier against unsuspecting citizens. It is timely to take note of the well-worded warning of Kalvin, Jr., the disturbing result could be that everyone will live burdened by an unerasable record of his past and his limitations. In a way, the threat is that because of its recordkeeping, the society will have lost its benign capacity 89 to forget. Oblivious to this counsel, the dissents still say we should not be too quick in labelling the right to privacy as a fundamental right. We close with the statement that the right to privacy was not engraved in our Constitution for flattery. IN VIEW WHEREOF, the petition is granted and Administrative Order No. 308 entitled Adoption of a National Computerized Identification Reference System declared null and void for being unconstitutional. SO ORDERED. Bellosillo and Martinez, JJ., concur. Narvasa (C.J.), Melo and Quisumbing, JJ., We join Justices Kapunan & Mendoza in their DISSENTS.
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88
See Shils, Privacy: Its Constitution and Vicissitudes, Law and Harry Kalvin, Jr., The Problems of Privacy in the Year 2000,
Contemporary Problems, vol. 31, pp. 301-303 [1966].

89
Daedalus, vol. 96, pp. 876-879 [1967]. 171
171
Regalado, J., In the result. Davide, Jr., J., In the result and I join Mr. Justice Panganiban in his Separate Opinion. Romero, J., Please see Separate Opinion. Vitug, J., See Separate Opinion. Kapunan, J., See Dissenting Opinion. Mendoza, J., Please see Dissenting Opinion. Panganiban, J., Please see Separate Opinion. Purisima, J., I join in Justice Mendozas dissent.
SEPARATE OPINION ROMERO, J.: What marks off a man from a beast? Aside from the distinguishing physical characteristics, man is a rational being, one who is endowed with intellect which allows him to apply reasoned judgment to problems at hand; he has the innate spiritual faculty which can tell, not only what is right but, as well, what is moral and ethical. Because of his sensibilities, emotions and feelings, he likewise possesses a sense of shame. In varying degrees as dictated by diverse cultures, he erects a wall between himself and the outside world wherein he can retreat in solitude, protecting himself from prying eyes and ears and their extensions, whether from individuals, or much later, from authoritarian intrusions. Piercing through the mists of time, we find the original Man and Woman defying the injunction of God by eating of the forbidden fruit in the Garden. And when their eyes were opened, forthwith they sewed fig leaves together, and made
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themselves aprons. Down the corridors of time, we find man fashioning fig leaves of sorts or setting up figurative walls, the better to insulate themselves from the rest of humanity. Such vague stirrings of the desire to be left alone, considered anti-social by some, led to the development of the concept of privacy, unheard of among beasts. Different branches of science, have made their own studies
of this craving of the human spiritpsychological, anthropological, sociological and philosophical, with the legal finally giving its imprimatur by elevating it to the status of a right, specifically a private right. Initially recognized as an aspect of tort law, it created giant waves in legal 2circles with the publication in the Harvard Law Review of the trail-blazing article, The Right to Privacy, by Samuel D. Warren and Louis D. Brandeis. Whether viewed as a personal or a property right, it found its way in Philippine Constitutions and statutes; this, in spite of the fact that Philippine culture can hardly be said to provide a fertile field for the burgeoning of said right. In fact, our lexicographers have yet to coin a word for it in the Filipino language. Customs and practices, being what they have always been, Filipinos think it perfectly natural and in good taste to inquire into each others intimate affairs. One has only to sit through a televised talk show to be convinced that what passes for wholesome entertainment is actually an invasion into ones private life, leaving the interviewee embarrassed and outraged by turns. With the overarching influence of common law and the recent advent of the Information Age with its high-tech devices, the right to privacy has expanded to embrace its public law aspect. The Bill of Rights of our evolving Charters, a direct transplant from that of the United States, contains in essence facets of the right to privacy which constitute limitations on the far-reaching powers of government.
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1 2
3 Genesis 7. 4 Harvard Law Review, 193-220 (1890). 173
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So terrifying are the possibilities of a law such as Administrative Order No. 308 in making inroads into the private lives of the citizens, a virtual Big Brother looking over our shoulders, that it must, without delay, be slain upon sight before our society turns totalitarian with each of us, a mindless robot. I, therefore, VOTE for the nullification of A.O. No. 308.
SEPARATE OPINION VITUG, J.: One can appreciate the concern expressed by my esteemed colleague, Mr. Justice Reynato S. Puno, echoing that of the petitioner, the Honorable Blas F. Ople, on the issuance of Administrative Order No. 308 by the President of the Philippines and the dangers its implementation could bring. I find it hard, nevertheless, to peremptorily assume at this time that the administrative order will be misused and to thereby ignore the possible benefits that can be derived from, or the merits of, a nationwide computerized identification reference system. The great strides and swift advances in technology render it inescapable that one day we will, at all events, have to face up with the reality of seeing extremely sophisticated methods of personal identification and any attempt to stop the inevitable may either be short-lived or even futile. The imperatives, I believe, would instead be to now install specific safeguards and control measures that may be calculated best to wardoff probable ill effects of any such device. Here, it may be apropos to recall the pronouncement of this Court in People 1 vs. Nazario that
As a rule, a statute or [an] act may be said to be vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to the Constitution in two respects: (1) it vio_______________
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165 SCRA 186.
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lates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government 2 muscle.
Administrative Order No. 308 appears to be so extensively
drawn that could, indeed, allow unbridled options to become available to its implementors beyond the reasonable comfort of the citizens and of residents alike. Prescinding from the foregoing, and most importantly to this instance, the subject covered by the questioned administrative order can have far-reaching consequences that can tell on all individuals, their liberty and privacy, that, to my mind, should make it indispensable and appropriate to have the matter specifically addressed by the Congress of the Philippines, the policy-making body of our government, to which the task should initially belong and to which the authority to formulate and promulgate that policy is constitutionally lodged. WHEREFORE, I vote for the nullification of Administrative Order No. 308 for being an undue and impermissible exercise of legislative power by the Executive. SEPARATE OPINION PANGANIBAN, J.: I concur only in the result and only on the ground that an executive issuance is not legally sufficient to establish an allencompassing computerized system of identification in the country. The subject matter contained in AO 308 is beyond the powers of the President to regulate without a legislative enactment. I reserve judgment on the issue of whether a national ID system is an infringement of the constitutional right to privacy or of the freedom of thought until after Congress passes,
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At p. 195. 175
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if ever, a law to this effect. Only then, and upon the filing of a proper petition, may the provisions of the statute be scrutinized by the judiciary to determine their constitutional foundation. Until such time, the issue is premature; and any decision thereon, speculative and 1
academic. Be that as it may, the scholarly discussions of Justices Romero, Puno, Kapunan and Mendoza on the constitutional right to privacy and freedom of thought may still become useful guides to our lawmakers, when and if Congress should deliberate on a bill establishing a national identification system. Let it be noted that this Court, as shown by the voting of the justices, has not definitively ruled on these points. The voting is decisive only on the need for the appropriate legislation, and it is only on this ground that the petition is granted by this Court. DISSENTING OPINION KAPUNAN, J.: The pioneering efforts of the executive to adopt a national computerized identification reference system have met fierce opposition. It has spun dark predictions of sinister government ploys to tamper with the citizens right to privacy and ominous forecasts of a return to authoritarianism. Lost in the uproar, however, is the simple fact that there is nothing in the whole breadth and length of Administrative Order No. 308 that suggests a taint of constitutional infirmity. A.O. No. 308 issued by President Fidel V. Ramos on 12 December 1996 reads:
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1
Basic is the doctrine that constitutional issues should not be used
to decide a controversy, if there are other available grounds, as in this case. ( See Justice Isagani Cruz, Constitutional Law , 1995 ed., pp. 2931.) 176
176

ADMINISTRATIVE ORDER NO. 308 ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM
WHEREAS, there is a need to provide Filipino citizens and foreign residents with the facility to conveniently transact business with
basic services and social security providers and other government instrumentalities; WHEREAS, this will require a computerized system to properly and efficiently identify persons seeking basic services and social security and reduce, if not totally eradicate, fraudulent transactions and misrepresentations; WHEREAS, a concerted and collaborative effort among the various basic services and social security providing agencies and other government instrumentalities is required to achieve such a system; NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by virtue of the powers vested in me by law, do hereby direct the following: SECTION 1. Establishment of a National Computerized Identification Reference System . A decentralized Identification Reference System among the key basic services and social security providers is hereby established. SEC. 2. Inter-Agency Coordinating Committee. An InterAgency Coordinating Committee (IACC) to draw-up the implementing guidelines and oversee the implementation of the system is hereby created, chaired by the Executive Secretary, with the following as members: Head, Presidential Management Staff Secretary, National Economic Development Authority Secretary, Department of the Interior and Local Government Secretary, Department of Health Administrator, Government Service Insurance System Administrator, Social Security System Administrator, National Statistics Office Managing Director, National Computer Center SEC. 3. Secretariat . The National Computer Center (NCC) is hereby designated as secretariat to the IACC and as such shall provide administrative and technical support to the IACC.
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SEC. 4. Linkage Among Agencies . The Population Reference Number (PRN) generated by the NSO shall serve as the common reference number to establish a linkage among concerned agencies. The IACC Secretariat shall coordinate with the different Social Security and Services Agencies to establish the standards in the use of Biometrics Technology and in computer application designs of their respective systems. SEC. 5. Conduct of Information Dissemination Campaign . The Office of the Press Secretary, in coordination with the National
Statistics Office, the GSIS and SSS as lead agencies and other concerned agencies shall undertake a massive tri-media information dissemination campaign to educate and raise public awareness on the importance and use of the PRN and the Social Security Identification Reference. SEC. 6. Funding. The funds necessary for the implementation of the system shall be sourced from the respective budgets of the concerned agencies. SEC. 7. Submission of Regular Reports. The NSO, GSIS and SSS shall submit regular reports to the Office of the President, through the IACC, on the status of implementation of this undertaking. SEC. 8. Effectivity . This Administrative Order shall take effect immediately. DONE in the City of Manila, this 12th day of December in the year of Our Lord, Nineteen Hundred and Ninety-Six.
In seeking to strike down A.O. No. 308 as unconstitutional, petitioner argues: A. THE ESTABLISHMENT OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM REQUIRES A LEGISLATIVE ACT. THE ISSUANCE OF A.O. NO. 308 BY THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES IS, THEREFORE, AN UNCONSTITUTIONAL USURPATION OF THE LEGISLATIVE POWERS OF THE CONGRESS OF THE REPUBLIC OF THE PHILIPPINES. B. THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR THE IMPLEMENTATION OF A.O. NO. 308 IS AN UNCONSTITUTIONAL USURPATION OF THE EXCLUSIVE
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SUPREME COURT REPORTS ANNOTATED Ople vs. Torres RIGHT OF CONGRESS TO APPROPRIATE PUBLIC FUNDS FOR EXPENDITURE. C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE GROUNDWORK FOR A SYSTEM WHICH WILL VIOLATE THE BILL OF RIGHTS ENSHRINED IN THE CONSTITUTION.
The National Computerized Identification Reference System, to which the NSO, GSIS and SSS are linked as lead members of the IACC is intended to establish uniform standards for 1ID cards issued by key government agencies 2 (like the SSS) for the efficient identification of persons. Under the new system, only one reliable and tamper-proof I.D. need be presented by the cardholder instead of several identification papers such as passports and drivers 3 license, to be able to transact with government agencies. The improved ID can be used to facilitate public transactions such as: 1. Payment of SSS and GSIS benefits 2. Applications for drivers license, BIR TIN, passport, marriage license, death certificate, NBI and police clearances, and business permits 3. Availment of Medicare services in hospitals 4. Availment of welfare services 5. Application for work/employment 4 6. Pre-requisite for voters ID. The card may also be used for private transactions such as: 1. Opening of bank accounts 2. Encashment of checks 3. Applications for loans, credit cards, water, power, telephones, pagers, etc. 4. Purchase of stocks 5. Application for work/employment
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1 2 3 4
SSS, Primer on the Social Security Card & A.O. No. 308, p. 1. Id ., at 2. Ibid. Ibid. 179
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6. Insurance claims 5 7. Receipt of payments, checks, letters, valuables, etc. The new identification system would tremendously
improve and uplift public service in our country to the benefit of Filipino citizens and resident aliens. It would promote, facilitate and speed up legitimate transactions with government offices as well as with private and business entities. Experience tells us of the constant delays and inconveniences the public has to suffer in availing of basic public services and social security benefits because of inefficient and not too reliable means of identification of the beneficiaries. Thus, in the Primer on the Social Security Card and Administrative Order No. 308 issued by the SSS, a lead agency in the implementation of the said order, the following salient features are mentioned: 1. A.O. 308 merely establishes the standards for I.D. cards issued by key government agencies such as SSS and GSIS. 2. It does not establish a national I.D. system; neither does it require a national I.D. card for every person. 3. The use of the I.D. is voluntary. 4. The I.D. is not required for delivery of any government service. Everyone has the right to basic government services as long as he is qualified under existing laws. 5. The I.D. cannot and will not in any way be used to prevent one to travel. 6. There will be no discrimination. Non-holders of the improved I.D. are still entitled to the same services but will be subjected to the usual rigid identification and verification beforehand.
I The issue that must first be hurdled is: was the issuance of A.O. No. 308 an exercise by the President of legislative power properly belonging to Congress?
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Id ., at 3. 180
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It is not. The Administrative Code of 1987 has unequivocally vested the President with quasi-legislative powers in the form of executive orders, administrative orders, proclamations, memorandum orders and circulars and 6 general or special orders. An administrative order, like the one under which the new identification system is embodied, has its peculiar meaning under the 1987 Administrative Code:
SEC. 3. Administrative Orders .Acts of the President which relate to particular aspects of governmental operations in pursuance of his duties as administrative head shall be promulgated in administrative orders.
The National Computerized Identification Reference System was established pursuant to the aforequoted provision precisely because its principal purpose, as expressly stated in the order, is to provide the people with the facility to conveniently transact business with the various government agencies providing basic services. Being the administrative head, it is unquestionably the responsibility of the President to find ways and means to improve the government bureaucracy, and make it more professional, efficient and reliable, specially those government agencies and instrumentalities which provide basic services and which the citizenry constantly transact with, like the Government Service Insurance System (GSIS), Social Security System (SSS) and National Statistics Office (NSO). The national computerized ID system is one such advancement. To emphasize, the new identification reference system is created to streamline the bureauracy, cut the red tape and ultimately achieve administrative efficiency. The project, therefore, relates to, is an appropriate subject and falls squarely within the ambit of the Chief Executives administrative power under which, in order to successfully carry out his administrative duties, he has been granted by law quasi-legislative powers, quoted above.
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Secs. 2 to 7, Chapter 2, Title I, Book III of the Administrative Code
of 1987. 181
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Understandably, strict adherence to the doctrine of separation of powers spawns differences of opinion. For we cannot divide the branches of government into water-tight compartments. Even if such is possible, it is neither desirable nor feasible. Bernard Schwartz, in his work Administrative Law, A Casebook, thus states:
To be sure, if we think of the separation of powers as carrying out the distinction between legislation and administration with mathematical precision and as dividing the branches of government into watertight compartments, we would probably have to conclude that any exercise of lawmaking authority by an agency is automatically invalid. Such a rigorous application of the constitutional doctrine is neither desirable nor feasible; the only absolute separation that has ever been possible was that in the theoretical writings of a Montesquieu, who looked across at foggy England from his sunny Gascon vineyards and completely 7 misconstrued what he saw.
A mingling of powers among the three branches of government is not a novel concept. This blending of powers has become necessary to properly address the complexities brought about by a rapidly developing society and which the traditional branches of government have difficulty 8 coping with. It has been said that:
The true meaning of the general doctrine of the separation of powers seems to be that the whole power of one department should not be exercised by the same hands which possess the whole power of either of the other departments, and that no one department ought to possess directly or indirectly an overruling influence over the others. And it has been held that this doctrine should be applied only to the powers which because of their nature are assigned by the constitution itself to one of the departments exclusively. Hence, it does not necessarily follow that an entire and complete separation is either desirable or was ever intended, for such a complete separation would be impracticable if not impossible; there may beand fre______________
7
Schwartz, Bernard, Administrative Law, A Casebook, Fourth Edition Carlo Cruz, Philippine Administrative Law, 1991 ed., pp. 1-3.
1994, pp. 78-79.

8
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quently areareas in which executive, legislative, and judicial powers blend or overlap; and many officers whose duties cannot be exclusively placed under any one of these heads. The courts have perceived the necessity of avoiding a narrow construction of a state constitutional provision for the division of the powers of the government into three distinct departments, for it is impractical to view the provision from the standpoint of a doctrinaire. Thus, the modern view of separation of powers rejects the metaphysical abstractions and reverts instead to a more pragmatic, flexible, functional approach, giving recognition to the fact that there may be a certain degree of blending or admixture of the three powers of the government. Moreover, the doctrine of separation of powers has never been strictly or rigidly applied, and indeed could not be, to all the ramifications of state or national governments; government would prove abortive if it were 9 attempted to follow the policy of separation to the letter.
In any case, A.O. No. 308 was promulgated by the President pursuant to the quasi-legislative powers expressly granted to him by law and in accordance with his duty as administrative head. Hence, the contention that the President usurped the legislative prerogatives of Congress has no firm basis. II Having resolved that the President has the authority and prerogative to issue A.O. No. 308, I submit that it is premature for the Court to determine the constitutionality or unconstitutionality of the National Computerized Identification Reference System. Basic in constitutional law is the rule that before the court assumes jurisdiction over and decide constitutional issues, the following requisites must first be satisfied: 1) there must be an actual case or controversy involving a conflict of rights susceptible of judicial determination;
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16 Am. Jur. 2d, Constitutional Law, Sec. 299. 183
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2) the constitutional question must be raised by a proper party; 3) the constitutional question must be raised at the earliest opportunity; and 4) the resolution of the constitutional question must 10 be necessary to the resolution of the case. In this case, it is evident that the first element is missing. Judicial intervention calls for an actual case or controversy which is defined as an existing case or controversy that is appropriate or ripe for determination, not conjectural or 11 anticipatory . Justice Isagani A. Cruz further expounds that (a) justifiable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character or from one that is academic or moot. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy admitting of special relief through a decree that is conclusive in character, as distinguished from an opinion advising what 12 the law would be upon a hypothetical state of facts . . . . A.O. No. 308 does not create any concrete or substantial controversy. It provides the general framework of the National Computerized Identification Reference System and lays down the basic standards (efficiency, convenience and prevention of fraudulent transactions) for its creation. But as manifestly indicated in the subject order, it is the InterAgency Coordinating Committee (IACC) which is tasked to research, study and formulate the guidelines and parameters for the use of Biometrics Technology and in computer application designs that will define and give 13 substance to the new system. This petition is, thus, premature considering that the IACC is still in the process of doing the leg work and has yet to codify and formalize the details of the new system.
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10 11 12 13
Board of Optometry v. Colet , 260 SCRA 88 (1996). Ibid. Isagani A. Cruz , Philippine Political Law, 1991 ed., p. 235. Sec. 2, A.O. No. 308. 184
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The majority opines that the petition is ripe for adjudication even without the promulgation of the necessary guidelines in view of the fact that respondents have begun implementation of A.O. No. 308. The SSS, in particular, has started advertising in newspapers the 14 invitation to bid for the production of the I.D. cards. I beg to disagree. It is not the new system itself that is intended to be implemented in the invitation to bid but only the manufacture of the I.D. cards. Biometrics Technology is not and cannot be used in the I.D. cards as no guidelines therefor have yet been laid down by the IACC. Before the assailed system can be set up, it is imperative that the guidelines be issued first. III Without the essential guidelines, the principal contention for invalidating the new identification reference system that it is an impermissible encroachment on the constitutionally recognized right to privacyis plainly groundless. There is nothing in A.O. No. 308 to serve as sufficient basis for a conclusion that the new system to be evolved violates the right to privacy. Said order simply provides the systems general framework. Without the concomitant guidelines, which would spell out in detail how this new identification system would work, the perceived violation of the right to privacy amounts to nothing more than mere surmise and speculation. What has caused much of the hysteria over the National Computerized Identification Reference System is the possible utilization of Biometrics Technology which refers to the use of automated matching of physiological or behavioral characteristics to identify a person that would violate the citizens constitutionally protected right to privacy. The majority opinion has enumerated various forms and methods of Biometrics Technology which if adopted in the
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Annex E, Petition. 185
185
National Computerized Identification Reference System would seriously threaten the right to privacy. Among which are biocrypt, retinal scan, artificial nose and thermogram. The majority also points to certain alleged deficiencies of A.O. No. 308. Thus: 1) A.O. No. 308 does not specify the particular Biometrics Technology that shall be used for the new identification system; 2) The order does not state whether encoding of data is limited to biological information alone for identification purposes; 3) There is no provision as to who shall control and access the data, under what circumstances and for what purpose; and 4) There are no controls to guard against leakage of information, thus heightening the potential for misuse and abuse. We should not be overwhelmed by the mere mention of the Biometrics Technology and its alleged, yet unfounded farreaching effects. There is nothing in A.O. No. 308, as it is worded, to suggest that the advanced methods of the Biometrics Technology that may pose danger to the right of privacy will be adopted. The standards set in A.O. No. 308 for the adoption of the new system are clear-cut and unequivocably spelled out in the WHEREASES and body of the order, namely, the need to provide citizens and foreign residents with the facility to conveniently transact business with basic service and social security providers and other government instrumentalities; the computerized system is intended to properly and efficiently identify persons seeking basic services or social security and reduce, if not totally eradicate fraudulent transactions and misrepresentations; the national identification reference system is established among the key basic services and social security providers; and finally, the IACC Secretariat shall coordinate with different Social Security and Services Agencies to establish the standards in the use of Biometrics Technology. Consequently, the choice of the particular form and extent of Biometrics Technology that will be applied and the parameters for its use (as will be defined in the guidelines)
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will necessarily and logically be guided, limited and circumscribed by the afore-stated standards. The fear entertained by the majority on the potential dangers of this new technology is thus securedly allayed by the specific limitations set by the above-mentioned standards. More than this, the right to privacy is well-ensconced in and directly protected by various provisions of the Bill of Rights, the Civil Code, the Revised Penal Code, and certain special laws, all so painstakingly and resourcefully catalogued in the majority opinion. Many of these laws provide penalties for their violation in the form of imprisonment, fines, or damages. These laws will serve as powerful deterrents not only in the establishment of any administrative rule that will violate the constitutionally protected right to privacy, but also to would-be transgressors of such right. Relevant to this case15is the ruling of the U.S. Supreme Court in Whalen v. Roe. In that case, a New York statute was challenged for requiring physicians to identify patients obtaining prescription drugs of the statutes Schedule II category (a class of drugs having a potential for abuse and a recognized medical use) so the names and addresses of the prescription drug patients can be recorded in a centralized computer file maintained by the New York State Department of Health. Some patients regularly receiving prescription for Schedule II drugs and doctors who prescribed such drugs brought an action questioning the validity of the statute on the ground that it violated the plaintiffs constitutionally protected rights of privacy. In a unanimous decision, the US Supreme Court sustained the validity of the statute on the ground that the patient identification requirement is a reasonable exercise of the States broad police powers. The Court also held that there is no support in the record for an assumption that the security provisions of the statute will be administered improperly. Finally, the Court opined that the remote possibility that judicial supervision of the evidentiary use of particular items of stored
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15
429 US 589 (1977).
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information will not provide adequate protection against unwarranted disclosures is not a sufficient reason for invalidating the patient-identification program. To be sure, there is always a possibility of an unwarranted disclosure of confidential matters enormously accumulated in computerized data banks and in government records relating to taxes, public health, social security benefits, military affairs, and similar matters. But as previously pointed out, we have a sufficient number of laws prohibiting and punishing any such unwarranted disclosures. Anent this matter, the observation in Whalen vs. Roe is instructive:
x x x. We are not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files. The collection of taxes, the distribution of welfare and social security benefits, the supervision of public health, the direction of our Armed Forces and the enforcement of the criminal laws all require the orderly preservation of great quantities of information, much of which is personal in character and potentially embarrassing or harmful if disclosed. The right to collect and use such data for public purposes is typically accompanied by a concomitant statutory or regulatory duty to avoid unwarranted disclosures. x x 16 x
The majority laments that as technology advances, the level of reasonably expected privacy decreases. That may be true. However, courts should tread daintily on the field of social and economic experimentation lest they impede or obstruct the march of technology to improve public services just on the basis of an unfounded fear that the experimentation violates ones constitutionally protected rights. In the sobering words of Mr. Justice Brandeis:
To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State
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Id ., at 77.
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may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. This Court has the power to prevent an experiment. We may strike down the statute which embodies it on the ground that, in our opinion, the measure is arbitrary, capricious or unreasonable. We have power to do this, because the due process clause has been held by the Court applicable to matters of substantive law as well as to matters of procedure. But in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles. If we would be guided by 17 the light of reason, we must let our minds be bold.
Again, the concerns of the majority are premature precisely because there are as yet no guidelines that will direct the Court and serve as solid basis for determining the constitutionality of the new identification system. The Court cannot and should not anticipate the constitutional issues and rule on the basis of guesswork. The guidelines would, among others, determine the particular biometrics method that would be used and the specific personal data that would be collected, provide the safeguards (if any) and supply the details on how this new system is supposed to work. The Court should not jump the gun on the Executive. III On the issue of funding, the majority submits that Section 6 of A.O. No. 308, which allows the government agencies included in the new system to obtain funding from their respective budgets, is unconstitutional for being an illegal transfer of appropriations. It is not so. The budget for the national identification system cannot be deemed a transfer of funds since the same is composed of and will be implemented by the member government agencies. Moreover, these agencies particularly the GSIS and SSS have been issuing some form of identification
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17
New State Ice Co. v. Liebmann, 285 US 262 (Dissenting Opinion)
cited in Whalen v. Roe, 249 US 589.
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or membership card. The improved ID cards that will be issued under this new system would just take the place of the old identification cards and budget-wise, the funds that were being used to manufacture the old ID cards, which are usually accounted for under the Supplies and Materials item of the Government Accounting and Auditing Manual, could now be utilized to fund the new cards. Hence, what is envisioned is not a transfer of appropriations but a pooling of funds and resources by the various government agencies involved in the project. WHEREFORE, I vote to dismiss the petition. SEPARATE OPINION MENDOZA, J., dissenting: My vote is to dismiss the petition in this case. First. I cannot find anything in the text of Administrative Order No. 308 of the President of the Philippines that would warrant a declaration that it is violative of the right of privacy. So far as I can see, all the Administrative Order does is establish an Identification Reference System involving the following service agencies of the government: Presidential Management Staff National Economic Development Authority Department of the Interior and Local Government Department of Health Government Service Insurance System Social Security System National Statistics Office National Computer Center create a committee, composed of the heads of the agencies concerned, to draft rules for the System; direct the use of the Population Reference Number (PRN) generated by the National Census and Statistics Office as the common reference number to link the
participating agencies into an Identification Reference System, and the adoption by the agencies of standards in
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the use of biometrics technology and computer designs; and provide for the funding of the System from the budgets of the agencies concerned. Petitioner argues, however, that the implementation of A.O. No. 308 will mean that each and every Filipino and foreign resident will have a file with the government containing, at the very least, his PRN and physiological biometrics such as, but not limited to, his facial features, hand geometry, retinal or iris pattern, DNA pattern, fingerprints, voice characteristics, and signature analysis. In support of his contention, petitioner quotes the following publication surfed from the Internet:
The use of biometrics is the means by which an individual may be conclusively identified. There are two types of biometric identifiers: Physical and behavioral characteristics. Physiological biometrics include facial features, hand geometry, retinal and iris patterns, DNA, and fingerprints. Behavioral characteristics include voice 1 characteristics and signature analysis .
I do not see how from the bare provisions of the Order, the full text of which is set forth in the majority opinion, petitioner and the majority can conclude that the Identification Reference System establishes such comprehensive personal information dossiers that can destroy individual privacy. So far as the Order provides, all that is contemplated is an identification system based on data which the government agencies involved have already been requiring individuals making use of their services to give. For example, under C.A. No. 591, 2(a) the National Statistics Office collects by enumeration, sampling or other methods, statistics and other information concerning population . . . social and economic institutions, and such other statistics
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Congress Poised To Mandate Government Registration and
Tracking of All Americans, Privacy International, February 1996; IDCARD.HTM at www.involved .com (emphasis by petitioner). 191
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as the President may direct. In addition, it is in charge of 2 the administration of the Civil Register, which means that it keeps records of information concerning the civil status of persons, i.e. , (a) births, (b) deaths, (c) marriages and their annulments, (d) legitimations, (e) adoptions, (f) acknowledgments of natural children, (g) naturalizations, 3 and (h) changes of name. Other statutes giving government agencies the power to require personal information may be cited. R.A. No. 4136, 23 gives the Land Transportation Office the power to require applicants for a drivers license to give information regarding the following: their full names, date of birth, height, weight, sex, color of eyes, blood type, address, and 4 right thumbprint; while R.A. No. 8239, 5 gives the Department of Foreign Affairs the power to require passport applicants to give information concerning their names, place of birth, date of birth, religious affiliation, marital status, and citizenship. Justice Romero, tracing the origin of privacy to the attempt of the first man and woman to cover their nakedness with fig leaves, bemoans the fact that technology and institutional pressures have threatened our sense of privacy. On the other hand, the majority would have none of the Identification Reference System to prevent the shrinking of the right to privacy, once regarded as the most comprehensive of rights and the right most 5 valued by civilized men. Indeed, techniques such as fingerprinting or electronic photography in banks have become commonplace. As has been observed, the teaching hospital has come to be accepted as offering medical services that compensate for the loss of the isolation of the sickbed; the increased capacity of applied sciences to utilize more and more kinds of data and the consequent calls for such data have weakened traditional resistance to disclosure. As the
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2
C.A. No. 591, 1(f).
3 4 5
Act No. 3753, 1. R.A. No. 4136, 23. Dissenting Opinion of Justice Brandeis in Olmstead v. United
States, 438, 478 (1928). 192
192
area of relevance, political or scientific, expands, there is strong psychological pressure to yield some ground of 6 privacy. But this is a fact of life to which we must adjust, as long as the intrusion into the domain of privacy is reasonable. 7 In Morfe v. Mutuc , this Court dealt the coup de grace to claims of latitudinarian scope for the right of privacy by quoting the pungent remark of an acute observer of the social scene, Carmen Guerrero-Nakpil:
Privacy? Whats that? There is no precise word for it in Filipino, and as far as I know any Filipino dialect and there is none because there is no need for it. The concept and practice of privacy are missing from conventional Filipino life. The Filipino believes that privacy is an unnecessary imposition, an eccentricity that is barely pardonable or, at best, an esoteric Western afterthought smacking 8 of legal trickery.
Justice Romero herself says in her separate opinion that the word privacy is not even in the lexicon of Filipinos. As to whether the right of privacy is the most valued right, we do well to remember the encomiums paid as well to other constitutional rights. For Professor Zechariah Chafee, The writ of habeas corpus is the most important 9 human rights provision in the fundamental law. For Justice Cardozo, on the other hand, freedom of expression is the matrix, the indispensable condition, of nearly every 10 other form of freedom.
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6
Paul A. Freund, Privacy : One Concept or Many , in PRIVACY 188 22 SCRA 424 (1968). Id ., at 445, n. 66. Zechariah Chafee, The Most Important Human Right in the
(R. Pennock and J. Chapman, eds., 1971).

7 8 9
Constitution , 32 BOSTON UNIV. LAW REV. 143 (1947), quoted in Gumabon v. Director of Prisons, 37 SCRA 420, 423 (1971) (per Fernando, J.).
10
Palko v. Connecticut, 302 U.S. 319, 327, 82 L.Ed. 288, 293 (1937). 193
193
The point is that care must be taken in assigning values to constitutional rights for the purpose of calibrating them on the judicial scale, especially if this means employing stricter standards of review for regulations alleged to infringe certain rights deemed to be most valued by civilized men. Indeed, the majority concedes that the right of privacy does not bar all incursions into individual privacy . . . [only that such] incursions into the right must be accompanied by proper safeguards and well-defined standards to 11 prevent unconstitutional invasions. In the case of the Identification Reference System, the purpose is to facilitate the transaction of business with service agencies of the government and to prevent fraud and misrepresentation. The personal identification of an individual can facilitate his treatment in any government hospital in case of emergency. On the other hand, the delivery of material assistance, such as free medicines, can be protected from fraud or misrepresentation as the absence of a data base makes it possible for unscrupulous individuals to obtain assistance from more than one government agency. Second. Thus, the issue in this case is not really whether A.O. No. 308 violates the right of privacy formed by emanations from the several constitutional rights cited by 12 the majority. The question is whether it violates freedom of thought and of conscience guaranteed in the following provisions of our Bill of Rights (Art. III):
SEC. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. SEC. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without dis_______________
11 12
Majority Opinion, pp. 30-31. The majority cites Art. III, 1, 2, 6, 8, and 17 of the Constitution.
194
194
crimination or preference, shall be forever be allowed. No religious test shall be required for the exercise of civil or political rights.
More specifically, the question is whether the establishment of the Identification Reference System will not result in the compilation of massive dossiers on individuals which, beyond their use for identification, can become instruments of thought control. So far, the text of A.O. No. 308 affords no basis for believing that the data gathered can be used for such sinister purpose. As already stated, nothing that is not already being required by the concerned agencies of those making use of their services is required by the Order in question. The Order simply organizes service agencies of the government into a System for the purpose of facilitating the identification of persons seeking basic services and social security. Thus, the whereas clauses of A.O. No. 308 state:
WHEREAS, there is a need to provide Filipino citizens and foreign residents with the facility to conveniently transact business with basic services and social security providers and other government instrumentalities; WHEREAS, this will require a computerized system to properly and efficiently identify persons seeking basic services and social security and reduce, if not totally eradicate, fraudulent transactions and misrepresentations; WHEREAS, a concerted and collaborative effort among the various basic services and social security providing agencies and other government instrumentalities is required to achieve such a system;
The application of biometric technology and the standardization of computer designs can provide service agencies with precise identification of individuals, but what is wrong with that? Indeed, A.O. No. 308 is no more than a directive to government agencies which the President of the Philippines has issued in his capacity as administrative 13 head. It is not a
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13
ADMINISTRATIVE CODE OF 1987, Bk. III, Tit. I, Ch. I, 3
provides: 195
195
statute. It confers no right; it imposes no duty; it affords no 14 protection; it creates no office. It is, as its name indicates, a mere administrative order, the precise nature of which is given in the following excerpt from the decision in the early 15 case of Olsen & Co. v. Herstein :
[It] is nothing more or less than a command from a superior to an inferior. It creates no relation except between the official who issues it and the official who receives it. Such orders, whether executive or departmental, have for their object simply the efficient and economical administration of the affairs of the department to which or in which they are issued in accordance with the law governing the subject-matter. They are administrative in their nature and do not pass beyond the limits of the department to which they are directed or in which they are published, and, therefore, create no rights in third persons. They are based on, and are the product of, a relationship in which power is their source and obedience their object . Disobedience to or deviation from such an order can be punished only by the power which issued it; and, if that power fails to administer the corrective, then the disobedience goes unpunished. In that relationship no third person or official may intervene, not even the courts . Such orders may be very temporary, they being subject to instant revocation or modification by the power which published them. Their very nature, as determined by the relationship which produced them, demonstrates clearly the impossibility of any other person enforcing them except the one who created them. An attempt on the part of the courts to enforce such orders would result not only in confusion but, substantially, in 16 departmental anarchy also.
Third. There is no basis for believing that, beyond the identification of individuals, the System will be used for illegal purposes. Nor are sanctions lacking for the unauthorized use
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SEC. 3. Administrative Orders.Acts of the President which relate to particular aspects of governmental operation in pursuance of his duties as administrative head shall be promulgated in administrative orders.
14
See Norton v. Shelby County, 118 U.S. 425, 442, 30 L.Ed. 178, 186 32 Phil. 520 (1915) (emphasis added). Id ., at 532.
(1886).
15 16
196
196
or disclosure of information gathered by the various agencies constituting the System. For example, as the Solicitor General points out, C.A. No. 591, 4 penalizes the unauthorized use or disclosure of data furnished the NSO with a fine of not more than P600.00 or imprisonment for not more than six months or both. At all events, at this stage, it is premature to pass on the claim that the Identification Reference System can be used for the purpose of compiling massive dossiers on individuals that can be used to curtail basic civil and political rights since, if at all, this can only be provided in the implementing rules and regulations which have yet to be promulgated. We have already stated that A.O. No. 308 is not a statute. Even in the case of statutes, however, where implementing rules are necessary to put them into effect, it has been held that an attack on their 17 constitutionality would be premature. As Edgar in King 18 Lear puts it, Ripeness is all. For, to borrow some more Shakespearean lines,
The canker galls the infants of the spring 19 Too oft before their buttons be disclosd.
That, more than any doctrine of constitutional law I can think of, succinctly expresses the rule on ripeness, prematurity, and hypothetical, speculative, or conjectural claims. 20 Of special relevance to this case is Laird v. Tatum. There, a class suit was brought seeking declaratory and injunctive relief on the claim that a U.S. Army intelligence surveillance of civilian political activity having a potential for civil disorder exercised a present inhibiting effect on [respondents] full expression and utilization of their First Amendment
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17 18 19 20
Garcia v. Executive Secretary, 204 SCRA 516 (1991). King Lear, Act V, Sc. ii, line 9. Hamlet, Act I, Sc. iii, lines 41-42. 408 U.S. 1, 33 L.Ed.2d 154 (1972). 197
197
rights. In holding the case nonjusticiable, the U.S. Supreme Court, in an opinion by Chief Justice Burger, 21 said:
In recent years this Court has found in a number of cases that constitutional violations may arise from the deterrent, or chilling, effect of governmental regulations that fall short of a direct prohibition against the exercise of First Amendment rights. [Citation of cases omitted] In none of these cases, however, did the chilling effect arise merely from the individuals knowledge that a governmental agency was engaged in certain activities or from the individuals concomitant fear that, armed with the fruits of those activities, the agency might in the future take some other and additional action detrimental to that individual. Rather, in each of these cases, the challenged exercise of governmental power was regulatory, proscriptive, or compulsory in nature, and the complainant was either presently or prospectively subject to the regulations, proscriptions, or compulsions that he was challenging . ... [T]hese decisions have in no way eroded the established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action . . . . The respondents do not meet this test; [the] alleged chilling effect may perhaps be seen as arising from respondents perception of the system as inappropriate to the Armys role under our form of government, or as arising from respondents beliefs that it is inherently dangerous for the military to be concerned with activities in the civilian sector, or as arising from respondents less generalized yet speculative apprehensiveness that the Army may at some future date misuse the information in some way that would cause direct harm to respondents. Allegations of a subjective chill are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm; the federal courts established pursuant to Article III of the Constitution do not render advisory opinions. United Public Workers v. Mitchell, 330 US 75, 89, 91 L. Ed. 754, 766, 67 S Ct 556 (1947).
Fourth. Given the fact that no right of privacy is involved in this case and that any objection to the Identification Refer_______________
21
Id ., 408 U.S. at 13-14, 33 L.Ed.2d at 163-164. 198
198
ence System on the ground that it violates freedom of thought is premature, speculative, or conjectural pending the issuance of the implementing rules, it is clear that petitioner Blas F. Ople has no cause of action and, therefore, no standing to bring this action. Indeed, although he assails A.O. No. 308 on the ground that it violates the right of privacy, he claims no personal injury suffered as a result of the Order in question. Instead, he says he is bringing this action as taxpayer, Senator, and member of the Government Service Insurance System. Insofar as petitioner claims an interest as taxpayer, it is sufficient to say that A.O. No. 308 does not involve the exercise of the taxing or spending power of the government. Insofar as he purports to sue as a member of the GSIS, neither does petitioner have an interest sufficient to enable him to litigate a constitutional question. Petitioner claims that in providing that the funds necessary for implementing the System shall be taken from the budgets of the concerned agencies, A.O. No. 308 violates Art. VI, 25(5) which provides:
No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.
But, as the Solicitor General states:

Petitioners argument is anchored on two erroneous assumptions: one, that all the concerned agencies, including the SSS and the GSIS, receive budgetary support from the national government; and two, that the GAA is the only law whereby public funds are appropriated. Both assumptions are wrong. The SSS and GSIS do not presently receive budgetary support from the National Government. They have achieved self-supporting status such that the contributions of their members are sufficient to finance their expenses. One would be hard pressed to find in the GAA an appropriation of funds to the SSS and the GSIS.
199
199
Furthermore, their respective charters authorize the SSS and the GSIS to disburse their funds (Rep. Act No. 1161 [1954], as amended, Sec. 25; Pres. Decree No. 1146 [1977], as amended, Sec. 29) without the need for a separate appropriation from the Congress.
Nor as Senator can petitioner claim standing since no power of Congress is alleged to have been impaired by the 22 Administrative Order in question. As already stated, in issuing A.O. No. 308, the President did not exercise the legislative power vested by the Constitution in Congress. He acted on the basis of his own powers as administrative head of the government, as distinguished from his capacity as the Executive. Dean Sinco elucidates the crucial distinction thus:
The Constitution of the Philippines makes the President not only the executive but also the administrative head of the government. . . . Executive power refers to the legal and political function of the President involving the exercise of discretion. Administrative power, on the other hand, concerns itself with the work of applying policies and enforcing orders as determined by proper governmental organs. These two functions are often confused by the public; but they are distinct from each other. The President as the executive authority has the duty of supervising the enforcement of laws for the maintenance of general peace and public order. As administrative head, his duty is to see that every government office is managed and maintained properly by the persons in charge of it in accordance with pertinent laws and regulations. . . . The power of control vested in him by the Constitution makes for a strongly centralized administrative system. It reinforces further his position as the executive of the government, enabling him to comply more effectively with his constitutional duty to enforce the laws. It enables him to fix a uniform standard of administrative efficiency and to check the official conduct of his agents . The decisions of all the officers within his department are subject to his
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22
Philconsa v. Enriquez, 235 SCRA 506 (1994); Gonzales v. Macaraig, 191
SCRA 452 (1990); Raines v. Byrd, No. 96-1671, June 26, 1997 (Legislators
whose votes have been sufficient to defeat [or enact] a specific legislative act have standing to sue if that legislative action goes into effect [or does not go into effect], on the ground that their votes have been completely nullified.)
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200
power of revision, either on his own motion or on the appeal of some individual who might deem himself aggrieved by the action of an administrative official. In case of serious dereliction of duty, he 23 may suspend or remove the officials concerned.
For the foregoing reasons, the petition should be DISMISSED. Petition granted, Administrative Order No. 308 declared null and void. o0o
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23
VICENTE G. SINCO, PHILIPPINE POLITICAL LAW, 234-235
(11th ed., 1962) (emphasis added). 201
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-45685 November 16, 1937
THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG & SHANGHAI BANKING CORPORATION,petitioners, vs. JOSE O. VERA, Judge . of the Court of First Instance of Manila, and MARIANO CU UNJIENG,respondents. Office of the Solicitor General Tuason and City Fiscal Diaz for the Government. De Witt, Perkins and Ponce Enrile for the Hongkong and Shanghai Banking Corporation. Vicente J. Francisco, Feria and La O, Orense and Belmonte, and Gibbs and McDonough for respondent Cu Unjieng. No appearance for respondent Judge.
LAUREL, J.: This is an original action instituted in this court on August 19, 1937, for the issuance of the writ of certiorariand of prohibition to the Court of First Instance of Manila so that this court may review the actuations of the aforesaid Court of First Instance in criminal case No. 42649 entitled "The People of the Philippine Islands vs. Mariano Cu Unjieng, et al.", more particularly the application of the defendant Mariano Cu Unjieng therein for probation under the provisions of Act No. 4221, and thereafter prohibit the said Court of First Instance from taking any further action or entertaining further the aforementioned application for probation, to the end that the defendant Mariano Cu Unjieng may be forthwith committed to prison in accordance with the final judgment of conviction rendered by this court in said case (G. R. No. 41200). 1 Petitioners herein, the People of the Philippine and the Hongkong and Shanghai Banking Corporation, are respectively the plaintiff and the offended party, and the respondent herein Mariano Cu Unjieng is one of the defendants, in the criminal case entitled "The People of the Philippine Islands vs. Mariano Cu Unjieng, et al.", criminal case No. 42649 of the Court of First Instance of Manila and G.R. No. 41200 of this court. Respondent herein, Hon. Jose O. Vera, is the Judge ad interim of the seventh branch of the Court of First Instance of Manila, who heard the application of the defendant Mariano Cu Unjieng for probation in the aforesaid criminal case. The information in the aforesaid criminal case was filed with the Court of First Instance of Manila on October 15, 1931, petitioner herein Hongkong and Shanghai Banking Corporation intervening in the case as private prosecutor. After a protracted trial unparalleled in the annals of Philippine jurisprudence
both in the length of time spent by the court as well as in the volume in the testimony and the bulk of the exhibits presented, the Court of First Instance of Manila, on January 8, 1934, rendered a judgment of conviction sentencing the defendant Mariano Cu Unjieng to indeterminate penalty ranging from four years and two months of prision correccional to eight years of prision mayor, to pay the costs and with reservation of civil action to the offended party, the Hongkong and Shanghai Banking Corporation. Upon appeal, the court, on March 26, 1935, modified the sentence to an indeterminate penalty of from five years and six months of prision correccional to seven years, six months and twenty-seven days of prision mayor, but affirmed the judgment in all other respects. Mariano Cu Unjieng filed a motion for reconsideration and four successive motions for new trial which were denied on December 17, 1935, and final judgment was accordingly entered on December 18, 1935. The defendant thereupon sought to have the case elevated on certiorari to the Supreme Court of the United States but the latter denied the petition for certiorari in November, 1936. This court, on November 24, 1936, denied the petition subsequently filed by the defendant for leave to file a second alternative motion for reconsideration or new trial and thereafter remanded the case to the court of origin for execution of the judgment. The instant proceedings have to do with the application for probation filed by the herein respondent Mariano Cu Unjieng on November 27, 1936, before the trial court, under the provisions of Act No. 4221 of the defunct Philippine Legislature. Herein respondent Mariano Cu Unjieng states in his petition, inter alia, that he is innocent of the crime of which he was convicted, that he has no criminal record and that he would observe good conduct in the future. The Court of First Instance of Manila, Judge Pedro Tuason presiding, referred the application for probation of the Insular Probation Office which recommended denial of the same June 18, 1937. Thereafter, the Court of First Instance of Manila, seventh branch, Judge Jose O. Vera presiding, set the petition for hearing on April 5, 1937. On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the granting of probation to the herein respondent Mariano Cu Unjieng. The private prosecution also filed an opposition on April 5, 1937, alleging, among other things, that Act No. 4221, assuming that it has not been repealed by section 2 of Article XV of the Constitution, is nevertheless violative of section 1, subsection (1), Article III of the Constitution guaranteeing equal protection of the laws for the reason that its applicability is not uniform throughout the Islands and because section 11 of the said Act endows the provincial boards with the power to make said law effective or otherwise in their respective or otherwise in their respective provinces. The private prosecution also filed a supplementary opposition on April 19, 1937, elaborating on the alleged unconstitutionality on Act No. 4221, as an undue delegation of legislative power to the provincial boards of several provinces (sec. 1, Art. VI, Constitution). The City Fiscal concurred in the opposition of the private prosecution except with respect to the questions raised concerning the constitutionality of Act No. 4221. On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a resolution with a finding that "las pruebas no han establecido de unamanera concluyente la culpabilidad del peticionario y que todos los hechos probados no son inconsistentes o incongrentes con su inocencia" and concludes that the herein respondent Mariano Cu Unjieng "es inocente por duda racional" of the crime of which he
stands convicted by this court in G.R. No. 41200, but denying the latter's petition for probation for the reason that: . . . Si este Juzgado concediera la poblacion solicitada por las circunstancias y la historia social que se han expuesto en el cuerpo de esta resolucion, que hacen al peticionario acreedor de la misma, una parte de la opinion publica, atizada por los recelos y las suspicacias, podria levantarse indignada contra un sistema de probacion que permite atisbar en los procedimientos ordinarios de una causa criminal perturbando la quietud y la eficacia de las decisiones ya recaidas al traer a la superficie conclusiones enteramente differentes, en menoscabo del interes publico que demanda el respeto de las leyes y del veredicto judicial. On July 3, 1937, counsel for the herein respondent Mariano Cu Unjieng filed an exception to the resolution denying probation and a notice of intention to file a motion for reconsideration. An alternative motion for reconsideration or new trial was filed by counsel on July 13, 1937. This was supplemented by an additional motion for reconsideration submitted on July 14, 1937. The aforesaid motions were set for hearing on July 31, 1937, but said hearing was postponed at the petition of counsel for the respondent Mariano Cu Unjieng because a motion for leave to intervene in the case as amici curiae signed by thirty-three (thirty-four) attorneys had just been filed with the trial court. Attorney Eulalio Chaves whose signature appears in the aforesaid motion subsequently filed a petition for leave to withdraw his appearance as amicus curiae on the ground that the motion for leave to intervene as amici curiae was circulated at a banquet given by counsel for Mariano Cu Unjieng on the evening of July 30, 1937, and that he signed the same "without mature deliberation and purely as a matter of courtesy to the person who invited me (him)." On August 6, 1937, the Fiscal of the City of Manila filed a motion with the trial court for the issuance of an order of execution of the judgment of this court in said case and forthwith to commit the herein respondent Mariano Cu Unjieng to jail in obedience to said judgment. On August 7, 1937, the private prosecution filed its opposition to the motion for leave to intervene as amici curiae aforementioned, asking that a date be set for a hearing of the same and that, at all events, said motion should be denied with respect to certain attorneys signing the same who were members of the legal staff of the several counsel for Mariano Cu Unjieng. On August 10, 1937, herein respondent Judge Jose O. Vera issued an order requiring all parties including the movants for intervention as amici curiae to appear before the court on August 14, 1937. On the last-mentioned date, the Fiscal of the City of Manila moved for the hearing of his motion for execution of judgment in preference to the motion for leave to intervene as amici curiae but, upon objection of counsel for Mariano Cu Unjieng, he moved for the postponement of the hearing of both motions. The respondent judge thereupon set the hearing of the motion for execution on August 21, 1937, but proceeded to consider the motion for leave to intervene as amici curiae as in order. Evidence as to the circumstances under which said motion for leave to intervene as amici curiae was signed and submitted to court was to have been heard on August 19, 1937. But at this juncture, herein petitioners came to this court on extraordinary legal process to put an end to what they alleged was an interminable proceeding in the Court of First Instance of Manila which fostered "the campaign of the defendant Mariano Cu Unjieng for
delay in the execution of the sentence imposed by this Honorable Court on him, exposing the courts to criticism and ridicule because of the apparent inability of the judicial machinery to make effective a final judgment of this court imposed on the defendant Mariano Cu Unjieng." The scheduled hearing before the trial court was accordingly suspended upon the issuance of a temporary restraining order by this court on August 21, 1937. To support their petition for the issuance of the extraordinary writs of certiorari and prohibition, herein petitioners allege that the respondent judge has acted without jurisdiction or in excess of his jurisdiction: I. Because said respondent judge lacks the power to place respondent Mariano Cu Unjieng under probation for the following reason: (1) Under section 11 of Act No. 4221, the said of the Philippine Legislature is made to apply only to the provinces of the Philippines; it nowhere states that it is to be made applicable to chartered cities like the City of Manila. (2) While section 37 of the Administrative Code contains a proviso to the effect that in the absence of a special provision, the term "province" may be construed to include the City of Manila for the purpose of giving effect to laws of general application, it is also true that Act No. 4221 is not a law of general application because it is made to apply only to those provinces in which the respective provincial boards shall have provided for the salary of a probation officer. (3) Even if the City of Manila were considered to be a province, still, Act No. 4221 would not be applicable to it because it has provided for the salary of a probation officer as required by section 11 thereof; it being immaterial that there is an Insular Probation Officer willing to act for the City of Manila, said Probation Officer provided for in section 10 of Act No. 4221 being different and distinct from the Probation Officer provided for in section 11 of the same Act. II. Because even if the respondent judge originally had jurisdiction to entertain the application for probation of the respondent Mariano Cu Unjieng, he nevertheless acted without jurisdiction or in excess thereof in continuing to entertain the motion for reconsideration and by failing to commit Mariano Cu Unjieng to prison after he had promulgated his resolution of June 28, 1937, denying Mariano Cu Unjieng's application for probation, for the reason that: (1) His jurisdiction and power in probation proceedings is limited by Act No. 4221 to the granting or denying of applications for probation. (2) After he had issued the order denying Mariano Cu Unjieng's petition for probation on June 28, 1937, it became final and executory at the moment of its rendition. (3) No right on appeal exists in such cases.
(4) The respondent judge lacks the power to grant a rehearing of said order or to modify or change the same. III. Because the respondent judge made a finding that Mariano Cu Unjieng is innocent of the crime for which he was convicted by final judgment of this court, which finding is not only presumptuous but without foundation in fact and in law, and is furthermore in contempt of this court and a violation of the respondent's oath of office as ad interim judge of first instance. IV. Because the respondent judge has violated and continues to violate his duty, which became imperative when he issued his order of June 28, 1937, denying the application for probation, to commit his co-respondent to jail. Petitioners also avers that they have no other plain, speedy and adequate remedy in the ordinary course of law. In a supplementary petition filed on September 9, 1937, the petitioner Hongkong and Shanghai Banking Corporation further contends that Act No. 4221 of the Philippine Legislature providing for a system of probation for persons eighteen years of age or over who are convicted of crime, is unconstitutional because it is violative of section 1, subsection (1), Article III, of the Constitution of the Philippines guaranteeing equal protection of the laws because it confers upon the provincial board of its province the absolute discretion to make said law operative or otherwise in their respective provinces, because it constitutes an unlawful and improper delegation to the provincial boards of the several provinces of the legislative power lodged by the Jones Law (section 8) in the Philippine Legislature and by the Constitution (section 1, Art. VI) in the National Assembly; and for the further reason that it gives the provincial boards, in contravention of the Constitution (section 2, Art. VIII) and the Jones Law (section 28), the authority to enlarge the powers of the Court of First Instance of different provinces without uniformity. In another supplementary petition dated September 14, 1937, the Fiscal of the City of Manila, in behalf of one of the petitioners, the People of the Philippine Islands, concurs for the first time with the issues raised by other petitioner regarding the constitutionality of Act No. 4221, and on the oral argument held on October 6, 1937, further elaborated on the theory that probation is a form of reprieve and therefore Act. No. 4221 is an encroachment on the exclusive power of the Chief Executive to grant pardons and reprieves. On October 7, 1937, the City Fiscal filed two memorandums in which he contended that Act No. 4221 not only encroaches upon the pardoning power to the executive, but also constitute an unwarranted delegation of legislative power and a denial of the equal protection of the laws. On October 9, 1937, two memorandums, signed jointly by the City Fiscal and the Solicitor-General, acting in behalf of the People of the Philippine Islands, and by counsel for the petitioner, the Hongkong and Shanghai Banking Corporation, one sustaining the power of the state to impugn the validity of its own laws and the other contending that Act No. 4221 constitutes an unwarranted delegation of legislative power, were presented. Another joint memorandum was filed by the same persons on the same day, October 9, 1937, alleging that Act No. 4221 is unconstitutional because it denies the equal protection of the laws and constitutes an unlawful delegation of legislative power and, further, that the whole Act is void: that the Commonwealth is not estopped from questioning the validity of its laws; that the private prosecution may intervene in probation proceedings and may attack the probation law as
unconstitutional; and that this court may pass upon the constitutional question in prohibition proceedings. Respondents in their answer dated August 31, 1937, as well as in their oral argument and memorandums, challenge each and every one of the foregoing proposition raised by the petitioners. As special defenses, respondents allege: (1) That the present petition does not state facts sufficient in law to warrant the issuance of the writ of certiorari or of prohibition. (2) That the aforesaid petition is premature because the remedy sought by the petitioners is the very same remedy prayed for by them before the trial court and was still pending resolution before the trial court when the present petition was filed with this court. (3) That the petitioners having themselves raised the question as to the execution of judgment before the trial court, said trial court has acquired exclusive jurisdiction to resolve the same under the theory that its resolution denying probation is unappealable. (4) That upon the hypothesis that this court has concurrent jurisdiction with the Court of First Instance to decide the question as to whether or not the execution will lie, this court nevertheless cannot exercise said jurisdiction while the Court of First Instance has assumed jurisdiction over the same upon motion of herein petitioners themselves. (5) That upon the procedure followed by the herein petitioners in seeking to deprive the trial court of its jurisdiction over the case and elevate the proceedings to this court, should not be tolerated because it impairs the authority and dignity of the trial court which court while sitting in the probation cases is "a court of limited jurisdiction but of great dignity." (6) That under the supposition that this court has jurisdiction to resolve the question submitted to and pending resolution by the trial court, the present action would not lie because the resolution of the trial court denying probation is appealable; for although the Probation Law does not specifically provide that an applicant for probation may appeal from a resolution of the Court of First Instance denying probation, still it is a general rule in this jurisdiction that a final order, resolution or decision of an inferior court is appealable to the superior court. (7) That the resolution of the trial court denying probation of herein respondent Mariano Cu Unjieng being appealable, the same had not become final and executory for the reason that the said respondent had filed an alternative motion for reconsideration and new trial within the requisite period of fifteen days, which motion the trial court was able to resolve in view of the restraining order improvidently and erroneously issued by this court.lawphi1.net (8) That the Fiscal of the City of Manila had by implication admitted that the resolution of the trial court denying probation is not final and unappealable when he presented his answer to the motion for reconsideration and agreed to the postponement of the hearing of the said motion.
(9) That under the supposition that the order of the trial court denying probation is not appealable, it is incumbent upon the accused to file an action for the issuance of the writ ofcertiorari with mandamus, it appearing that the trial court, although it believed that the accused was entitled to probation, nevertheless denied probation for fear of criticism because the accused is a rich man; and that, before a petition for certiorari grounded on an irregular exercise of jurisdiction by the trial court could lie, it is incumbent upon the petitioner to file a motion for reconsideration specifying the error committed so that the trial court could have an opportunity to correct or cure the same. (10) That on hypothesis that the resolution of this court is not appealable, the trial court retains its jurisdiction within a reasonable time to correct or modify it in accordance with law and justice; that this power to alter or modify an order or resolution is inherent in the courts and may be exercise either motu proprio or upon petition of the proper party, the petition in the latter case taking the form of a motion for reconsideration. (11) That on the hypothesis that the resolution of the trial court is appealable as respondent allege, said court cannot order execution of the same while it is on appeal, for then the appeal would not be availing because the doors of probation will be closed from the moment the accused commences to serve his sentence (Act No. 4221, sec. 1; U.S. vs. Cook, 19 Fed. [2d], 827). In their memorandums filed on October 23, 1937, counsel for the respondents maintain that Act No. 4221 is constitutional because, contrary to the allegations of the petitioners, it does not constitute an undue delegation of legislative power, does not infringe the equal protection clause of the Constitution, and does not encroach upon the pardoning power of the Executive. In an additional memorandum filed on the same date, counsel for the respondents reiterate the view that section 11 of Act No. 4221 is free from constitutional objections and contend, in addition, that the private prosecution may not intervene in probation proceedings, much less question the validity of Act No. 4221; that both the City Fiscal and the Solicitor-General are estopped from questioning the validity of the Act; that the validity of Act cannot be attacked for the first time before this court; that probation in unavailable; and that, in any event, section 11 of the Act No. 4221 is separable from the rest of the Act. The last memorandum for the respondent Mariano Cu Unjieng was denied for having been filed out of time but was admitted by resolution of this court and filed anew on November 5, 1937. This memorandum elaborates on some of the points raised by the respondents and refutes those brought up by the petitioners. In the scrutiny of the pleadings and examination of the various aspects of the present case, we noted that the court below, in passing upon the merits of the application of the respondent Mariano Cu Unjieng and in denying said application assumed the task not only of considering the merits of the application, but of passing upon the culpability of the applicant, notwithstanding the final pronouncement of guilt by this court. (G.R. No. 41200.) Probation implies guilt be final judgment. While a probation case may look into the circumstances attending the commission of the offense, this does not authorize it to reverse the findings and conclusive of this court, either directly or indirectly, especially wherefrom its own admission reliance was merely had on the printed briefs, averments, and pleadings of the parties. As already observed by this court in Shioji vs. Harvey ([1922], 43 Phil., 333, 337),
and reiterated in subsequent cases, "if each and every Court of First Instance could enjoy the privilege of overruling decisions of the Supreme Court, there would be no end to litigation, and judicial chaos would result." A becoming modesty of inferior courts demands conscious realization of the position that they occupy in the interrelation and operation of the intergrated judicial system of the nation. After threshing carefully the multifarious issues raised by both counsel for the petitioners and the respondents, this court prefers to cut the Gordian knot and take up at once the two fundamental questions presented, namely, (1) whether or not the constitutionality of Act No. 4221 has been properly raised in these proceedings; and (2) in the affirmative, whether or not said Act is constitutional. Considerations of these issues will involve a discussion of certain incidental questions raised by the parties. To arrive at a correct conclusion on the first question, resort to certain guiding principles is necessary. It is a well-settled rule that the constitutionality of an act of the legislature will not be determined by the courts unless that question is properly raised and presented inappropriate cases and is necessary to a determination of the case; i.e., the issue of constitutionality must be the very lis mota presented. (McGirr vs. Hamilton and Abreu [1915], 30 Phil., 563, 568; 6 R. C. L., pp. 76, 77; 12 C. J., pp. 780-782, 783.) The question of the constitutionality of an act of the legislature is frequently raised in ordinary actions. Nevertheless, resort may be made to extraordinary legal remedies, particularly where the remedies in the ordinary course of law even if available, are not plain, speedy and adequate. Thus, in Cu Unjieng vs. Patstone([1922]), 42 Phil., 818), this court held that the question of the constitutionality of a statute may be raised by the petitioner in mandamus proceedings (see, also, 12 C. J., p. 783); and in Government of the Philippine Islands vs. Springer ([1927], 50 Phil., 259 [affirmed in Springer vs. Government of the Philippine Islands (1928), 277 U. S., 189; 72 Law. ed., 845]), this court declared an act of the legislature unconstitutional in an action of quo warranto brought in the name of the Government of the Philippines. It has also been held that the constitutionality of a statute may be questioned in habeas corpus proceedings (12 C. J., p. 783; Bailey on Habeas Corpus, Vol. I, pp. 97, 117), although there are authorities to the contrary; on an application for injunction to restrain action under the challenged statute (mandatory, see Cruz vs. Youngberg [1931], 56 Phil., 234); and even on an application for preliminary injunction where the determination of the constitutional question is necessary to a decision of the case. (12 C. J., p. 783.) The same may be said as regards prohibition and certiorari.(Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385; [1926], 271 U. S., 500; 70 Law. ed., 1059; Bell vs. First Judicial District Court [1905], 28 Nev., 280; 81 Pac., 875; 113 A. S. R., 854; 6 Ann. Cas., 982; 1 L. R. A. [N. S], 843, and cases cited). The case of Yu Cong Eng vs. Trinidad, supra, decided by this court twelve years ago was, like the present one, an original action for certiorari and prohibition. The constitutionality of Act No. 2972, popularly known as the Chinese Bookkeeping Law, was there challenged by the petitioners, and the constitutional issue was not met squarely by the respondent in a demurrer. A point was raised "relating to the propriety of the constitutional question being decided in original proceedings in prohibition." This court decided to take up the constitutional question and, with two justices dissenting, held that Act No. 2972 was constitutional. The case was elevated on writ of certiorari to the Supreme Court of the United States which reversed the judgment of this court and held that the Act was invalid.
(271 U. S., 500; 70 Law. ed., 1059.) On the question of jurisdiction, however, the Federal Supreme Court, though its Chief Justice, said: By the Code of Civil Procedure of the Philippine Islands, section 516, the Philippine supreme court is granted concurrent jurisdiction in prohibition with courts of first instance over inferior tribunals or persons, and original jurisdiction over courts of first instance, when such courts are exercising functions without or in excess of their jurisdiction. It has been held by that court that the question of the validity of the criminal statute must usually be raised by a defendant in the trial court and be carried regularly in review to the Supreme Court. (Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192). But in this case where a new act seriously affected numerous persons and extensive property rights, and was likely to cause a multiplicity of actions, the Supreme Court exercised its discretion to bring the issue to the act's validity promptly before it and decide in the interest of the orderly administration of justice. The court relied by analogy upon the cases of Ex parte Young (209 U. S., 123;52 Law ed., 714; 13 L. R. A. [N. S.] 932; 28 Sup. Ct. Rep., 441; 14 Ann. Ca., 764; Traux vs. Raich, 239 U. S., 33; 60 Law. ed., 131; L. R. A. 1916D, 545; 36 Sup. Ct. Rep., 7; Ann. Cas., 1917B, 283; and Wilson vs. New, 243 U. S., 332; 61 Law. ed., 755; L. R. A. 1917E, 938; 37 Sup. Ct. Rep., 298; Ann. Cas. 1918A, 1024). Although objection to the jurisdiction was raise by demurrer to the petition, this is now disclaimed on behalf of the respondents, and both parties ask a decision on the merits. In view of the broad powers in prohibition granted to that court under the Island Code, we acquiesce in the desire of the parties. The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction and directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is not legally vested. (High, Extraordinary Legal Remedies, p. 705.) The general rule, although there is a conflict in the cases, is that the merit of prohibition will not lie whether the inferior court has jurisdiction independent of the statute the constitutionality of which is questioned, because in such cases the interior court having jurisdiction may itself determine the constitutionality of the statute, and its decision may be subject to review, and consequently the complainant in such cases ordinarily has adequate remedy by appeal without resort to the writ of prohibition. But where the inferior court or tribunal derives its jurisdiction exclusively from an unconstitutional statute, it may be prevented by the writ of prohibition from enforcing that statute. (50 C. J., 670;Ex parte Round tree [1874, 51 Ala., 42; In re Macfarland, 30 App. [D. C.], 365; Curtis vs. Cornish [1912], 109 Me., 384; 84 A., 799; Pennington vs. Woolfolk [1880], 79 Ky., 13; State vs. Godfrey [1903], 54 W. Va., 54; 46 S. E., 185; Arnold vs. Shields [1837], 5 Dana, 19; 30 Am. Dec., 669.) Courts of First Instance sitting in probation proceedings derived their jurisdiction solely from Act No. 4221 which prescribes in detailed manner the procedure for granting probation to accused persons after their conviction has become final and before they have served their sentence. It is true that at common law the authority of the courts to suspend temporarily the execution of the sentence is recognized and, according to a number of state courts, including those of Massachusetts, Michigan, New York, and Ohio, the power is inherent in the courts (Commonwealth vs. Dowdican's Bail [1874], 115 Mass., 133; People vs. Stickel [1909], 156 Mich., 557; 121 N. W., 497; People ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288; Weber vs. State [1898], 58 Ohio St., 616). But, in the leading case of Ex parte United States ([1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A., 1917E, 1178; 37 Sup. Ct. Rep., 72;
Ann. Cas. 1917B, 355), the Supreme Court of the United States expressed the opinion that under the common law the power of the court was limited to temporary suspension, and brushed aside the contention as to inherent judicial power saying, through Chief Justice White: Indisputably under our constitutional system the right to try offenses against the criminal laws and upon conviction to impose the punishment provided by law is judicial, and it is equally to be conceded that, in exerting the powers vested in them on such subject, courts inherently possess ample right to exercise reasonable, that is, judicial, discretion to enable them to wisely exert their authority. But these concessions afford no ground for the contention as to power here made, since it must rest upon the proposition that the power to enforce begets inherently a discretion to permanently refuse to do so. And the effect of the proposition urged upon the distribution of powers made by the Constitution will become apparent when it is observed that indisputable also is it that the authority to define and fix the punishment for crime is legislative and includes the right in advance to bring within judicial discretion, for the purpose of executing the statute, elements of consideration which would be otherwise beyond the scope of judicial authority, and that the right to relieve from the punishment, fixed by law and ascertained according to the methods by it provided belongs to the executive department. Justice Carson, in his illuminating concurring opinion in the case of Director of Prisons vs. Judge of First Instance of Cavite (29 Phil., 265), decided by this court in 1915, also reached the conclusion that the power to suspend the execution of sentences pronounced in criminal cases is not inherent in the judicial function. "All are agreed", he said, "that in the absence of statutory authority, it does not lie within the power of the courts to grant such suspensions." (at p. 278.) Both petitioner and respondents are correct, therefore, when they argue that a Court of First Instance sitting in probation proceedings is a court of limited jurisdiction. Its jurisdiction in such proceedings is conferred exclusively by Act No. 4221 of the Philippine Legislature. It is, of course, true that the constitutionality of a statute will not be considered on application for prohibition where the question has not been properly brought to the attention of the court by objection of some kind (Hill vs. Tarver [1901], 130 Ala., 592; 30 S., 499; State ex rel. Kelly vs. Kirby [1914], 260 Mo., 120; 168 S. W., 746). In the case at bar, it is unquestionable that the constitutional issue has been squarely presented not only before this court by the petitioners but also before the trial court by the private prosecution. The respondent, Hon. Jose O Vera, however, acting as judge of the court below, declined to pass upon the question on the ground that the private prosecutor, not being a party whose rights are affected by the statute, may not raise said question. The respondent judge cited Cooley on Constitutional Limitations (Vol. I, p. 339; 12 C. J., sec. 177, pp. 760 and 762), and McGlue vs. Essex County ([1916], 225 Mass., 59; 113 N. E., 742, 743), as authority for the proposition that a court will not consider any attack made on the constitutionality of a statute by one who has no interest in defeating it because his rights are not affected by its operation. The respondent judge further stated that it may not motu proprio take up the constitutional question and, agreeing with Cooley that "the power to declare a legislative enactment void is one which the judge, conscious of the fallibility of the human judgment, will shrink from exercising in any case where he can conscientiously and with due regard to duty and official oath decline the responsibility" (Constitutional Limitations, 8th ed., Vol. I, p. 332), proceeded on the assumption that Act No. 4221 is constitutional. While therefore, the court a
quo admits that the constitutional question was raised before it, it refused to consider the question solely because it was not raised by a proper party. Respondents herein reiterates this view. The argument is advanced that the private prosecution has no personality to appear in the hearing of the application for probation of defendant Mariano Cu Unjieng in criminal case No. 42648 of the Court of First Instance of Manila, and hence the issue of constitutionality was not properly raised in the lower court. Although, as a general rule, only those who are parties to a suit may question the constitutionality of a statute involved in a judicial decision, it has been held that since the decree pronounced by a court without jurisdiction is void, where the jurisdiction of the court depends on the validity of the statute in question, the issue of the constitutionality will be considered on its being brought to the attention of the court by persons interested in the effect to be given the statute.(12 C. J., sec. 184, p. 766.) And, even if we were to concede that the issue was not properly raised in the court below by the proper party, it does not follow that the issue may not be here raised in an original action of certiorari and prohibitions. It is true that, as a general rule, the question of constitutionality must be raised at the earliest opportunity, so that if not raised by the pleadings, ordinarily it may not be raised at the trial, and if not raised in the trial court, it will not considered on appeal. (12 C. J., p. 786. See, also,Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that the general rule admits of exceptions. Courts, in the exercise of sounds discretion, may determine the time when a question affecting the constitutionality of a statute should be presented. (In re Woolsey [1884], 95 N. Y., 135, 144.) Thus, in criminal cases, although there is a very sharp conflict of authorities, it is said that the question may be raised for the first time at any stage of the proceedings, either in the trial court or on appeal. (12 C. J., p. 786.) Even in civil cases, it has been held that it is the duty of a court to pass on the constitutional question, though raised for the first time on appeal, if it appears that a determination of the question is necessary to a decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co., [1910], 136 ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis Cordage Co. [1908], 214 Mo., 685; 113 S. W. 1108; Carmody vs. St. Louis Transit Co., [1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a constitutional question will be considered by an appellate court at any time, where it involves the jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to the power of this court to consider the constitutional question raised for the first time before this court in these proceedings, we turn again and point with emphasis to the case of Yu Cong Eng vs. Trinidad, supra. And on the hypotheses that the Hongkong & Shanghai Banking Corporation, represented by the private prosecution, is not the proper party to raise the constitutional question here a point we do not now have to decide we are of the opinion that the People of the Philippines, represented by the SolicitorGeneral and the Fiscal of the City of Manila, is such a proper party in the present proceedings. The unchallenged rule is that the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustained, direct injury as a result of its enforcement. It goes without saying that if Act No. 4221 really violates the constitution, the People of the Philippines, in whose name the present action is brought, has a substantial interest in having it set aside. Of grater import than the damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by the enforcement of an invalid statute. Hence, the wellsettled rule that the state can challenge the validity of its own laws. In Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of the Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared an act of the legislature unconstitutional in
an action instituted in behalf of the Government of the Philippines. In Attorney General vs. Perkins ([1889], 73 Mich., 303, 311, 312; 41 N. W. 426, 428, 429), the State of Michigan, through its Attorney General, instituted quo warranto proceedings to test the right of the respondents to renew a mining corporation, alleging that the statute under which the respondents base their right was unconstitutional because it impaired the obligation of contracts. The capacity of the chief law officer of the state to question the constitutionality of the statute was though, as a general rule, only those who are parties to a suit may question the constitutionality of a statute involved in a judicial decision, it has been held that since the decree pronounced by a court without jurisdiction in void, where the jurisdiction of the court depends on the validity of the statute in question, the issue of constitutionality will be considered on its being brought to the attention of the court by persons interested in the effect to begin the statute. (12 C.J., sec. 184, p. 766.) And, even if we were to concede that the issue was not properly raised in the court below by the proper party, it does not follow that the issue may not be here raised in an original action of certiorari and prohibition. It is true that, as a general rule, the question of constitutionality must be raised at the earliest opportunity, so that if not raised by the pleadings, ordinarily it may not be raised a the trial, and if not raised in the trial court, it will not be considered on appeal. (12 C.J., p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that the general rule admits of exceptions. Courts, in the exercise of sound discretion, may determine the time when a question affecting the constitutionality of a statute should be presented. (In re Woolsey [19884], 95 N.Y., 135, 144.) Thus, in criminal cases, although there is a very sharp conflict of authorities, it is said that the question may be raised for the first time at any state of the proceedings, either in the trial court or on appeal. (12 C.J., p. 786.) Even in civil cases, it has been held that it is the duty of a court to pass on the constitutional question, though raised for first time on appeal, if it appears that a determination of the question is necessary to a decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co. [1910], 136 Ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis, Cordage Co. [1908], 214 Mo. 685; 113 S. W., 1108; Carmody vs. St. Louis Transit Co. [1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a constitutional question will be considered by an appellate court at any time, where it involves the jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to the power of this court to consider the constitutional question raised for the first time before this court in these proceedings, we turn again and point with emphasis to the case of Yu Cong Eng. vs. Trinidad, supra. And on the hypothesis that the Hongkong & Shanghai Banking Corporation, represented by the private prosecution, is not the proper party to raise the constitutional question here a point we do not now have to decide we are of the opinion that the People of the Philippines, represented by the Solicitor-General and the Fiscal of the City of Manila, is such a proper party in the present proceedings. The unchallenged rule is that the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement. It goes without saying that if Act No. 4221 really violates the Constitution, the People of the Philippines, in whose name the present action is brought, has a substantial interest in having it set aside. Of greater import than the damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by the enforcement of an invalid statute. Hence, the wellsettled rule that the state can challenge the validity of its own laws. In Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of the Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared an act of the legislature unconstitutional in
an action instituted in behalf of the Government of the Philippines. In Attorney General vs. Perkings([1889], 73 Mich., 303, 311, 312; 41 N.W., 426, 428, 429), the State of Michigan, through its Attorney General, instituted quo warranto proceedings to test the right of the respondents to renew a mining corporation, alleging that the statute under which the respondents base their right was unconstitutional because it impaired the obligation of contracts. The capacity of the chief law officer of the state to question the constitutionality of the statute was itself questioned. Said the Supreme Court of Michigan, through Champlin, J.: . . . The idea seems to be that the people are estopped from questioning the validity of a law enacted by their representatives; that to an accusation by the people of Michigan of usurpation their government, a statute enacted by the people of Michigan is an adequate answer. The last proposition is true, but, if the statute relied on in justification is unconstitutional, it is statute only in form, and lacks the force of law, and is of no more saving effect to justify action under it than if it had never been enacted. The constitution is the supreme law, and to its behests the courts, the legislature, and the people must bow . . . The legislature and the respondents are not the only parties in interest upon such constitutional questions. As was remarked by Mr. Justice Story, in speaking of an acquiescence by a party affected by an unconstitutional act of the legislature: "The people have a deep and vested interest in maintaining all the constitutional limitations upon the exercise of legislative powers." (Allen vs. Mckeen, 1 Sum., 314.) In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original action (mandamus) was brought by the Attorney-General of Kansas to test the constitutionality of a statute of the state. In disposing of the question whether or not the state may bring the action, the Supreme Court of Kansas said: . . . the state is a proper party indeed, the proper party to bring this action. The state is always interested where the integrity of its Constitution or statutes is involved. "It has an interest in seeing that the will of the Legislature is not disregarded, and need not, as an individual plaintiff must, show grounds of fearing more specific injury. (State vs. Kansas City 60 Kan., 518 [57 Pac., 118])." (State vs. Lawrence, 80 Kan., 707; 103 Pac., 839.) Where the constitutionality of a statute is in doubt the state's law officer, its Attorney-General, or county attorney, may exercise his bet judgment as to what sort of action he will bring to have the matter determined, either by quo warranto to challenge its validity (State vs. Johnson, 61 Kan., 803; 60 Pac., 1068; 49 L.R.A., 662), by mandamus to compel obedience to its terms (State vs. Dolley, 82 Kan., 533; 108 Pac., 846), or by injunction to restrain proceedings under its questionable provisions (State ex rel. vs. City of Neodesha, 3 Kan. App., 319; 45 Pac., 122). Other courts have reached the same conclusion (See State vs. St. Louis S. W. Ry. Co. [1917], 197 S. W., 1006; State vs. S.H. Kress & Co. [1934], 155 S., 823; State vs. Walmsley [1935], 181 La., 597; 160 S., 91; State vs. Board of County Comr's [1934], 39 Pac. [2d], 286; First Const. Co. of Brooklyn vs. State [1917], 211 N.Y., 295; 116 N.E., 1020; Bush vs. State {1918], 187 Ind., 339; 119 N.E., 417; State vs. Watkins [1933], 176 La., 837; 147 S., 8, 10, 11). In the case last cited, the Supreme Court of Luisiana said:
It is contended by counsel for Herbert Watkins that a district attorney, being charged with the duty of enforcing the laws, has no right to plead that a law is unconstitutional. In support of the argument three decisions are cited, viz.: State ex rel. Hall, District Attorney, vs. Judge of Tenth Judicial District (33 La. Ann., 1222); State ex rel. Nicholls, Governor vs. Shakespeare, Mayor of New Orleans (41 Ann., 156; 6 So., 592); and State ex rel., Banking Co., etc. vs. Heard, Auditor (47 La. Ann., 1679; 18 So., 746; 47 L. R. A., 512). These decisions do not forbid a district attorney to plead that a statute is unconstitutional if he finds if in conflict with one which it is his duty to enforce. In State ex rel. Hall, District Attorney, vs. Judge, etc., the ruling was the judge should not, merely because he believed a certain statute to be unconstitutional forbid the district attorney to file a bill of information charging a person with a violation of the statute. In other words, a judge should not judicially declare a statute unconstitutional until the question of constitutionality is tendered for decision, and unless it must be decided in order to determine the right of a party litigant. State ex rel. Nicholls, Governor, etc., is authority for the proposition merely that an officer on whom a statute imposes the duty of enforcing its provisions cannot avoid the duty upon the ground that he considers the statute unconstitutional, and hence in enforcing the statute he is immune from responsibility if the statute be unconstitutional. State ex rel. Banking Co., etc., is authority for the proposition merely that executive officers, e.g., the state auditor and state treasurer, should not decline to perform ministerial duties imposed upon them by a statute, on the ground that they believe the statute is unconstitutional. It is the duty of a district attorney to enforce the criminal laws of the state, and, above all, to support the Constitution of the state. If, in the performance of his duty he finds two statutes in conflict with each other, or one which repeals another, and if, in his judgment, one of the two statutes is unconstitutional, it is his duty to enforce the other; and, in order to do so, he is compelled to submit to the court, by way of a plea, that one of the statutes is unconstitutional. If it were not so, the power of the Legislature would be free from constitutional limitations in the enactment of criminal laws. The respondents do not seem to doubt seriously the correctness of the general proposition that the state may impugn the validity of its laws. They have not cited any authority running clearly in the opposite direction. In fact, they appear to have proceeded on the assumption that the rule as stated is sound but that it has no application in the present case, nor may it be invoked by the City Fiscal in behalf of the People of the Philippines, one of the petitioners herein, the principal reasons being that the validity before this court, that the City Fiscal is estopped from attacking the validity of the Act and, not authorized challenge the validity of the Act in its application outside said city. (Additional memorandum of respondents, October 23, 1937, pp. 8,. 10, 17 and 23.) The mere fact that the Probation Act has been repeatedly relied upon the past and all that time has not been attacked as unconstitutional by the Fiscal of Manila but, on the contrary, has been impliedly regarded by him as constitutional, is no reason for considering the People of the Philippines estopped from nor assailing its validity. For courts will pass upon a constitutional questions only when presented before it in bona fide cases for determination, and the fact that the question has not been raised before is not a valid reason for refusing to allow it to be raised later. The fiscal and all others are justified in relying upon the statute and treating it as valid until it is held void by the courts in proper cases.
It remains to consider whether the determination of the constitutionality of Act No. 4221 is necessary to the resolution of the instant case. For, ". . . while the court will meet the question with firmness, where its decision is indispensable, it is the part of wisdom, and just respect for the legislature, renders it proper, to waive it, if the case in which it arises, can be decided on other points." (Ex parte Randolph [1833], 20 F. Cas. No. 11, 558; 2 Brock., 447. Vide, also Hoover vs. wood [1857], 9 Ind., 286, 287.) It has been held that the determination of a constitutional question is necessary whenever it is essential to the decision of the case (12 C. J., p. 782, citing Long Sault Dev. Co. vs. Kennedy [1913], 158 App. Div., 398; 143 N. Y. Supp., 454 [aff. 212 N.Y., 1: 105 N. E., 849; Ann. Cas. 1915D, 56; and app dism 242 U.S., 272]; Hesse vs. Ledesma, 7 Porto Rico Fed., 520; Cowan vs. Doddridge, 22 Gratt [63 Va.], 458; Union Line Co., vs. Wisconsin R. Commn., 146 Wis., 523; 129 N. W., 605), as where the right of a party is founded solely on a statute the validity of which is attacked. (12 C.J., p. 782, citing Central Glass Co. vs. Niagrara F. Ins. Co., 131 La., 513; 59 S., 972; Cheney vs. Beverly, 188 Mass., 81; 74 N.E., 306). There is no doubt that the respondent Cu Unjieng draws his privilege to probation solely from Act No. 4221 now being assailed. Apart from the foregoing considerations, that court will also take cognizance of the fact that the Probation Act is a new addition to our statute books and its validity has never before been passed upon by the courts; that may persons accused and convicted of crime in the City of Manila have applied for probation; that some of them are already on probation; that more people will likely take advantage of the Probation Act in the future; and that the respondent Mariano Cu Unjieng has been at large for a period of about four years since his first conviction. All wait the decision of this court on the constitutional question. Considering, therefore, the importance which the instant case has assumed and to prevent multiplicity of suits, strong reasons of public policy demand that the constitutionality of Act No. 4221 be now resolved. (Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385; [1926], 271 U.S., 500; 70 Law. ed., 1059. See 6 R.C.L., pp. 77, 78; People vs. Kennedy [1913], 207 N.Y., 533; 101 N.E., 442, 444; Ann. Cas. 1914C, 616; Borginis vs. Falk Co. [1911], 147 Wis., 327; 133 N.W., 209, 211; 37 L.R.A. [N.S.] 489; Dimayuga and Fajardo vs. Fernandez [1922], 43 Phil., 304.) In Yu Cong Eng vs. Trinidad, supra, an analogous situation confronted us. We said: "Inasmuch as the property and personal rights of nearly twelve thousand merchants are affected by these proceedings, and inasmuch as Act No. 2972 is a new law not yet interpreted by the courts, in the interest of the public welfare and for the advancement of public policy, we have determined to overrule the defense of want of jurisdiction in order that we may decide the main issue. We have here an extraordinary situation which calls for a relaxation of the general rule." Our ruling on this point was sustained by the Supreme Court of the United States. A more binding authority in support of the view we have taken can not be found. We have reached the conclusion that the question of the constitutionality of Act No. 4221 has been properly raised. Now for the main inquiry: Is the Act unconstitutional? Under a doctrine peculiarly American, it is the office and duty of the judiciary to enforce the Constitution. This court, by clear implication from the provisions of section 2, subsection 1, and section 10, of Article VIII of the Constitution, may declare an act of the national legislature invalid because in conflict with the fundamental lay. It will not shirk from its sworn duty to enforce the Constitution. And,
in clear cases, it will not hesitate to give effect to the supreme law by setting aside a statute in conflict therewith. This is of the essence of judicial duty. This court is not unmindful of the fundamental criteria in cases of this nature that all reasonable doubts should be resolved in favor of the constitutionality of a statute. An act of the legislature approved by the executive, is presumed to be within constitutional limitations. The responsibility of upholding the Constitution rests not on the courts alone but on the legislature as well. "The question of the validity of every statute is first determined by the legislative department of the government itself." (U.S. vs. Ten Yu [1912], 24 Phil., 1, 10; Case vs. Board of Health and Heiser [1913], 24 Phil., 250, 276; U.S. vs. Joson [1913], 26 Phil., 1.) And a statute finally comes before the courts sustained by the sanction of the executive. The members of the Legislature and the Chief Executive have taken an oath to support the Constitution and it must be presumed that they have been true to this oath and that in enacting and sanctioning a particular law they did not intend to violate the Constitution. The courts cannot but cautiously exercise its power to overturn the solemn declarations of two of the three grand departments of the governments. (6 R.C.L., p. 101.) Then, there is that peculiar political philosophy which bids the judiciary to reflect the wisdom of the people as expressed through an elective Legislature and an elective Chief Executive. It follows, therefore, that the courts will not set aside a law as violative of the Constitution except in a clear case. This is a proposition too plain to require a citation of authorities. One of the counsel for respondents, in the course of his impassioned argument, called attention to the fact that the President of the Philippines had already expressed his opinion against the constitutionality of the Probation Act, adverting that as to the Executive the resolution of this question was a foregone conclusion. Counsel, however, reiterated his confidence in the integrity and independence of this court. We take notice of the fact that the President in his message dated September 1, 1937, recommended to the National Assembly the immediate repeal of the Probation Act (No. 4221); that this message resulted in the approval of Bill No. 2417 of the Nationality Assembly repealing the probation Act, subject to certain conditions therein mentioned; but that said bill was vetoed by the President on September 13, 1937, much against his wish, "to have stricken out from the statute books of the Commonwealth a law . . . unfair and very likely unconstitutional." It is sufficient to observe in this connection that, in vetoing the bill referred to, the President exercised his constitutional prerogative. He may express the reasons which he may deem proper for taking such a step, but his reasons are not binding upon us in the determination of actual controversies submitted for our determination. Whether or not the Executive should express or in any manner insinuate his opinion on a matter encompassed within his broad constitutional power of veto but which happens to be at the same time pending determination in this court is a question of propriety for him exclusively to decide or determine. Whatever opinion is expressed by him under these circumstances, however, cannot sway our judgment on way or another and prevent us from taking what in our opinion is the proper course of action to take in a given case. It if is ever necessary for us to make any vehement affirmance during this formative period of our political history, it is that we are independent of the Executive no less than of the Legislative department of our government independent in the performance of our functions,
undeterred by any consideration, free from politics, indifferent to popularity, and unafraid of criticism in the accomplishment of our sworn duty as we see it and as we understand it. The constitutionality of Act No. 4221 is challenged on three principal grounds: (1) That said Act encroaches upon the pardoning power of the Executive; (2) that its constitutes an undue delegation of legislative power and (3) that it denies the equal protection of the laws. 1. Section 21 of the Act of Congress of August 29, 1916, commonly known as the Jones Law, in force at the time of the approval of Act No. 4221, otherwise known as the Probation Act, vests in the Governor-General of the Philippines "the exclusive power to grant pardons and reprieves and remit fines and forfeitures". This power is now vested in the President of the Philippines. (Art. VII, sec. 11, subsec. 6.) The provisions of the Jones Law and the Constitution differ in some respects. The adjective "exclusive" found in the Jones Law has been omitted from the Constitution. Under the Jones Law, as at common law, pardon could be granted any time after the commission of the offense, either before or after conviction (Vide Constitution of the United States, Art. II, sec. 2;In re Lontok [1922], 43 Phil., 293). The Governor-General of the Philippines was thus empowered, like the President of the United States, to pardon a person before the facts of the case were fully brought to light. The framers of our Constitution thought this undesirable and, following most of the state constitutions, provided that the pardoning power can only be exercised "after conviction". So, too, under the new Constitution, the pardoning power does not extend to "cases of impeachment". This is also the rule generally followed in the United States (Vide Constitution of the United States, Art. II, sec. 2). The rule in England is different. There, a royal pardon can not be pleaded in bar of an impeachment; "but," says Blackstone, "after the impeachment has been solemnly heard and determined, it is not understood that the king's royal grace is further restrained or abridged." (Vide, Ex parte Wells [1856], 18 How., 307; 15 Law. ed., 421; Com. vs. Lockwood [1872], 109 Mass., 323; 12 Am. Rep., 699; Sterling vs. Drake [1876], 29 Ohio St., 457; 23 am. Rep., 762.) The reason for the distinction is obvious. In England, Judgment on impeachment is not confined to mere "removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the Government" (Art. IX, sec. 4, Constitution of the Philippines) but extends to the whole punishment attached by law to the offense committed. The House of Lords, on a conviction may, by its sentence, inflict capital punishment, perpetual banishment, perpetual banishment, fine or imprisonment, depending upon the gravity of the offense committed, together with removal from office and incapacity to hold office. (Com. vs. Lockwood, supra.) Our Constitution also makes specific mention of "commutation" and of the power of the executive to impose, in the pardons he may grant, such conditions, restrictions and limitations as he may deem proper. Amnesty may be granted by the President under the Constitution but only with the concurrence of the National Assembly. We need not dwell at length on the significance of these fundamental changes. It is sufficient for our purposes to state that the pardoning power has remained essentially the same. The question is: Has the pardoning power of the Chief Executive under the Jones Law been impaired by the Probation Act? As already stated, the Jones Law vests the pardoning power exclusively in the Chief Executive. The exercise of the power may not, therefore, be vested in anyone else. ". . . The benign prerogative of mercy reposed in the executive cannot be taken away nor fettered by any legislative restrictions, nor can like power be given by the legislature to any other officer or
authority. The coordinate departments of government have nothing to do with the pardoning power, since no person properly belonging to one of the departments can exercise any powers appertaining to either of the others except in cases expressly provided for by the constitution." (20 R.C.L., pp., , and cases cited.) " . . . where the pardoning power is conferred on the executive without express or implied limitations, the grant is exclusive, and the legislature can neither exercise such power itself nor delegate it elsewhere, nor interfere with or control the proper exercise thereof, . . ." (12 C.J., pp. 838, 839, and cases cited.) If Act No. 4221, then, confers any pardoning power upon the courts it is for that reason unconstitutional and void. But does it? In the famous Killitts decision involving an embezzlement case, the Supreme Court of the United States ruled in 1916 that an order indefinitely suspending sentenced was void. (Ex parte United States [1916], 242 U.S., 27; 61 Law. ed., 129; L.R.A. 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355.) Chief Justice White, after an exhaustive review of the authorities, expressed the opinion of the court that under the common law the power of the court was limited to temporary suspension and that the right to suspend sentenced absolutely and permanently was vested in the executive branch of the government and not in the judiciary. But, the right of Congress to establish probation by statute was conceded. Said the court through its Chief Justice: ". . . and so far as the future is concerned, that is, the causing of the imposition of penalties as fixed to be subject, by probation legislation or such other means as the legislative mind may devise, to such judicial discretion as may be adequate to enable courts to meet by the exercise of an enlarged but wise discretion the infinite variations which may be presented to them for judgment, recourse must be had Congress whose legislative power on the subject is in the very nature of things adequately complete." (Quoted in Riggs vs. United States [1926], 14 F. [2d], 5, 6.) This decision led the National Probation Association and others to agitate for the enactment by Congress of a federal probation law. Such action was finally taken on March 4, 1925 (chap. 521, 43 Stat. L. 159, U.S.C. title 18, sec. 724). This was followed by an appropriation to defray the salaries and expenses of a certain number of probation officers chosen by civil service. (Johnson, Probation for Juveniles and Adults, p. 14.) In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup. Ct. Rep., 146; 72 Law. ed., 309), the Supreme Court of the United States, through Chief Justice Taft, held that when a person sentenced to imprisonment by a district court has begun to serve his sentence, that court has no power under the Probation Act of March 4, 1925 to grant him probation even though the term at which sentence was imposed had not yet expired. In this case of Murray, the constitutionality of the probation Act was not considered but was assumed. The court traced the history of the Act and quoted from the report of the Committee on the Judiciary of the United States House of Representatives (Report No. 1377, 68th Congress, 2 Session) the following statement: Prior to the so-called Killitts case, rendered in December, 1916, the district courts exercised a form of probation either, by suspending sentence or by placing the defendants under state probation officers or volunteers. In this case, however (Ex parte United States, 242 U.S., 27; 61 L. Ed., 129; L.R.A., 1917E, 1178; 37 Sup. Ct. Rep., 72 Ann. Cas. 1917B, 355), the Supreme Court denied the right of the district courts to suspend sentenced. In the same opinion the court pointed out the necessity for action by Congress if the courts were to exercise probation powers in the future . . .
Since this decision was rendered, two attempts have been made to enact probation legislation. In 1917, a bill was favorably reported by the Judiciary Committee and passed the House. In 1920, the judiciary Committee again favorably reported a probation bill to the House, but it was never reached for definite action. If this bill is enacted into law, it will bring the policy of the Federal government with reference to its treatment of those convicted of violations of its criminal laws in harmony with that of the states of the Union. At the present time every state has a probation law, and in all but twelve states the law applies both to adult and juvenile offenders. (see, also, Johnson, Probation for Juveniles and Adults [1928], Chap. I.) The constitutionality of the federal probation law has been sustained by inferior federal courts. In Riggs vs. United States supra, the Circuit Court of Appeals of the Fourth Circuit said: Since the passage of the Probation Act of March 4, 1925, the questions under consideration have been reviewed by the Circuit Court of Appeals of the Ninth Circuit (7 F. [2d], 590), and the constitutionality of the act fully sustained, and the same held in no manner to encroach upon the pardoning power of the President. This case will be found to contain an able and comprehensive review of the law applicable here. It arose under the act we have to consider, and to it and the authorities cited therein special reference is made (Nix vs. James, 7 F. [2d], 590, 594), as is also to a decision of the Circuit Court of Appeals of the Seventh Circuit (Kriebel vs. U.S., 10 F. [2d], 762), likewise construing the Probation Act. We have seen that in 1916 the Supreme Court of the United States; in plain and unequivocal language, pointed to Congress as possessing the requisite power to enact probation laws, that a federal probation law as actually enacted in 1925, and that the constitutionality of the Act has been assumed by the Supreme Court of the United States in 1928 and consistently sustained by the inferior federal courts in a number of earlier cases. We are fully convinced that the Philippine Legislature, like the Congress of the United States, may legally enact a probation law under its broad power to fix the punishment of any and all penal offenses. This conclusion is supported by other authorities. In Ex parte Bates ([1915], 20 N. M., 542; L.R.A. 1916A, 1285; 151 Pac., 698, the court said: "It is clearly within the province of the Legislature to denominate and define all classes of crime, and to prescribe for each a minimum and maximum punishment." And in State vs. Abbott ([1910], 87 S.C., 466; 33 L.R.A. [N. S.], 112; 70 S. E., 6; Ann. Cas. 1912B, 1189), the court said: "The legislative power to set punishment for crime is very broad, and in the exercise of this power the general assembly may confer on trial judges, if it sees fit, the largest discretion as to the sentence to be imposed, as to the beginning and end of the punishment and whether it should be certain or indeterminate or conditional." (Quoted in State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69.) Indeed, the Philippine Legislature has defined all crimes and fixed the penalties for their violation. Invariably, the legislature has demonstrated the desire to vest in the courts particularly the trial courts large discretion in imposing the penalties which the law prescribes in particular cases. It is believed that justice can best be served by vesting this power in the courts, they being in a position to best determine
the penalties which an individual convict, peculiarly circumstanced, should suffer. Thus, while courts are not allowed to refrain from imposing a sentence merely because, taking into consideration the degree of malice and the injury caused by the offense, the penalty provided by law is clearly excessive, the courts being allowed in such case to submit to the Chief Executive, through the Department of Justice, such statement as it may deem proper (see art. 5, Revised Penal Code), in cases where both mitigating and aggravating circumstances are attendant in the commission of a crime and the law provides for a penalty composed of two indivisible penalties, the courts may allow such circumstances to offset one another in consideration of their number and importance, and to apply the penalty according to the result of such compensation. (Art. 63, rule 4, Revised Penal Code; U.S. vs. Reguera and Asuategui [1921], 41 Phil., 506.) Again, article 64, paragraph 7, of the Revised Penal Code empowers the courts to determine, within the limits of each periods, in case the penalty prescribed by law contains three periods, the extent of the evil produced by the crime. In the imposition of fines, the courts are allowed to fix any amount within the limits established by law, considering not only the mitigating and aggravating circumstances, but more particularly the wealth or means of the culprit. (Art. 66, Revised Penal Code.) Article 68, paragraph 1, of the same Code provides that "a discretionary penalty shall be imposed" upon a person under fifteen but over nine years of age, who has not acted without discernment, but always lower by two degrees at least than that prescribed by law for the crime which he has committed. Article 69 of the same Code provides that in case of "incomplete self-defense", i.e., when the crime committed is not wholly excusable by reason of the lack of some of the conditions required to justify the same or to exempt from criminal liability in the several cases mentioned in article 11 and 12 of the Code, "the courts shall impose the penalty in the period which may be deemed proper, in view of the number and nature of the conditions of exemption present or lacking." And, in case the commission of what are known as "impossible" crimes, "the court, having in mind the social danger and the degree of criminality shown by the offender," shall impose upon him either arresto mayor or a fine ranging from 200 to 500 pesos. (Art. 59, Revised Penal Code.) Under our Revised Penal Code, also, one-half of the period of preventive imprisonment is deducted form the entire term of imprisonment, except in certain cases expressly mentioned (art. 29); the death penalty is not imposed when the guilty person is more than seventy years of age, or where upon appeal or revision of the case by the Supreme Court, all the members thereof are not unanimous in their voting as to the propriety of the imposition of the death penalty (art. 47, see also, sec. 133, Revised Administrative Code, as amended by Commonwealth Act No. 3); the death sentence is not to be inflicted upon a woman within the three years next following the date of the sentence or while she is pregnant, or upon any person over seventy years of age (art. 83); and when a convict shall become insane or an imbecile after final sentence has been pronounced, or while he is serving his sentenced, the execution of said sentence shall be suspended with regard to the personal penalty during the period of such insanity or imbecility (art. 79). But the desire of the legislature to relax what might result in the undue harshness of the penal laws is more clearly demonstrated in various other enactments, including the probation Act. There is the Indeterminate Sentence Law enacted in 1933 as Act No. 4103 and subsequently amended by Act No. 4225, establishing a system of parole (secs. 5 to 100 and granting the courts large discretion in imposing
the penalties of the law. Section 1 of the law as amended provides; "hereafter, in imposing a prison sentence for an offenses punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and to a minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same." Certain classes of convicts are, by section 2 of the law, excluded from the operation thereof. The Legislature has also enacted the Juvenile Delinquency Law (Act No. 3203) which was subsequently amended by Act No. 3559. Section 7 of the original Act and section 1 of the amendatory Act have become article 80 of the Revised Penal Code, amended by Act No. 4117 of the Philippine Legislature and recently reamended by Commonwealth Act No. 99 of the National Assembly. In this Act is again manifested the intention of the legislature to "humanize" the penal laws. It allows, in effect, the modification in particular cases of the penalties prescribed by law by permitting the suspension of the execution of the judgment in the discretion of the trial court, after due hearing and after investigation of the particular circumstances of the offenses, the criminal record, if any, of the convict, and his social history. The Legislature has in reality decreed that in certain cases no punishment at all shall be suffered by the convict as long as the conditions of probation are faithfully observed. It this be so, then, it cannot be said that the Probation Act comes in conflict with the power of the Chief Executive to grant pardons and reprieves, because, to use the language of the Supreme Court of New Mexico, "the element of punishment or the penalty for the commission of a wrong, while to be declared by the courts as a judicial function under and within the limits of law as announced by legislative acts, concerns solely the procedure and conduct of criminal causes, with which the executive can have nothing to do." (Ex parte Bates, supra.) In Williams vs. State ([1926], 162 Ga., 327; 133 S.E., 843), the court upheld the constitutionality of the Georgia probation statute against the contention that it attempted to delegate to the courts the pardoning power lodged by the constitution in the governor alone is vested with the power to pardon after final sentence has been imposed by the courts, the power of the courts to imposed any penalty which may be from time to time prescribed by law and in such manner as may be defined cannot be questioned." We realize, of course, the conflict which the American cases disclose. Some cases hold it unlawful for the legislature to vest in the courts the power to suspend the operation of a sentenced, by probation or otherwise, as to do so would encroach upon the pardoning power of the executive. (In re Webb [1895], 89 Wis., 354; 27 L.R.A., 356; 46 Am. St. Rep., 846; 62 N.W., 177; 9 Am. Crim., Rep., 702; State ex rel. Summerfield vs. Moran [1919], 43 Nev., 150; 182 Pac., 927; Ex parte Clendenning [1908], 22 Okla., 108; 1 Okla. Crim. Rep., 227; 19 L.R.A. [N.S.], 1041; 132 Am. St. Rep., 628; 97 Pac., 650; People vs. Barrett [1903], 202 Ill, 287; 67 N.E., 23; 63 L.R.A., 82; 95 Am. St. Rep., 230; Snodgrass vs. State [1912], 67 Tex. Crim. Rep., 615; 41 L. R. A. [N. S.], 1144; 150 S. W., 162;Ex parte Shelor [1910], 33 Nev., 361;111 Pac., 291; Neal vs. State [1898], 104 Ga., 509; 42 L. R. A., 190; 69 Am. St. Rep., 175; 30 S. E. 858; State ex rel. Payne vs. Anderson [1921], 43 S. D., 630; 181 N. W., 839; People vs. Brown, 54 Mich., 15; 19 N. W., 571; States vs. Dalton [1903], 109 Tenn., 544; 72 S. W., 456.)
Other cases, however, hold contra. (Nix vs. James [1925; C. C. A., 9th], 7 F. [2d], 590; Archer vs. Snook [1926; D. C.], 10 F. [2d], 567; Riggs. vs. United States [1926; C. C. A. 4th], 14]) [2d], 5; Murphy vs. States [1926], 171 Ark., 620; 286 S. W., 871; 48 A. L. R., 1189; Re Giannini [1912], 18 Cal. App., 166; 122 Pac., 831; Re Nachnaber [1928], 89 Cal. App., 530; 265 Pac., 392; Ex parte De Voe [1931], 114 Cal. App., 730; 300 Pac., 874; People vs. Patrick [1897], 118 Cal., 332; 50 Pac., 425; Martin vs. People [1917], 69 Colo., 60; 168 Pac., 1171; Belden vs. Hugo [1914], 88 Conn., 50; 91 A., 369, 370, 371; Williams vs. State [1926], 162 Ga., 327; 133 S. E., 843; People vs. Heise [1913], 257 Ill., 443; 100 N. E., 1000; Parker vs. State [1893], 135 Ind., 534; 35 N. E., 179; 23 L. R. A., 859; St. Hillarie, Petitioner [1906], 101 Me., 522; 64 Atl., 882; People vs. Stickle [1909], 156 Mich., 557; 121 N. W., 497; State vs. Fjolander [1914], 125 Minn., 529; State ex rel. Bottomnly vs. District Court [1925], 73 Mont., 541; 237 Pac., 525; State vs. Everitt [1913], 164 N. C., 399; 79 S. E., 274; 47 L. R. A. [N. S.], 848; State ex rel. Buckley vs. Drew [1909], 75 N. H., 402; 74 Atl., 875; State vs. Osborne [1911], 79 N. J. Eq., 430; 82 Atl. 424; Ex parte Bates [1915], 20 N. M., 542; L. R. A., 1916 A. 1285; 151 Pac., 698; People vs. ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288; 23 L. R. A., 856; 36 N. E., 386; 15 Am. Crim. Rep., 675; People ex rel. Sullivan vs. Flynn [1907], 55 Misc., 639; 106 N. Y. Supp., 928; People vs. Goodrich [1914], 149 N. Y. Supp., 406; Moore vs. Thorn [1935], 245 App. Div., 180; 281 N. Y. Supp., 49; Re Hart [1914], 29 N. D., 38; L. R. A., 1915C, 1169; 149 N. W., 568; Ex parte Eaton [1925], 29 Okla., Crim. Rep., 275; 233 P., 781; State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69; State vs. Abbot [1910], 87 S. C., 466; 33 L.R.A., [N. S.], 112; 70 S. E., 6; Ann. Cas., 1912B, 1189; Fults vs. States [1854],34 Tenn., 232; Woods vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs. State [1913],70 Tex., Crim. Rep., 618; 158 S. W., 998; Cook vs. State [1914], 73 Tex. Crim. Rep., 548; 165 S. W., 573; King vs. State [1914], 72 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 211; 54 S. W. [2d], 127; Re Hall [1927], 100 Vt., 197; 136 A., 24; Richardson vs. Com. [1921], 131 Va., 802; 109 S.E., 460; State vs. Mallahan [1911], 65 Wash., 287; 118 Pac., 42; State ex rel. Tingstand vs. Starwich [1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393; 396.) We elect to follow this long catena of authorities holding that the courts may be legally authorized by the legislature to suspend sentence by the establishment of a system of probation however characterized. State ex rel. Tingstand vs. Starwich ([1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393), deserved particular mention. In that case, a statute enacted in 1921 which provided for the suspension of the execution of a sentence until otherwise ordered by the court, and required that the convicted person be placed under the charge of a parole or peace officer during the term of such suspension, on such terms as the court may determine, was held constitutional and as not giving the court a power in violation of the constitutional provision vesting the pardoning power in the chief executive of the state. (Vide, also, Re Giannini [1912], 18 Cal App., 166; 122 Pac., 831.) Probation and pardon are not coterminous; nor are they the same. They are actually district and different from each other, both in origin and in nature. In People ex rel. Forsyth vs. Court of Sessions ([1894], 141 N. Y., 288, 294; 36 N. E., 386, 388; 23 L. R. A., 856; 15 Am. Crim. Rep., 675), the Court of Appeals of New York said: . . . The power to suspend sentence and the power to grant reprieves and pardons, as understood when the constitution was adopted, are totally distinct and different in their nature. The former was
always a part of the judicial power; the latter was always a part of the executive power. The suspension of the sentence simply postpones the judgment of the court temporarily or indefinitely, but the conviction and liability following it, and the civil disabilities, remain and become operative when judgment is rendered. A pardon reaches both the punishment prescribed for the offense and the guilt of the offender. It releases the punishment, and blots out of existence the guilt, so that in the eye of the law, the offender is as innocent as if he had never committed the offense. It removes the penalties and disabilities, and restores him to all his civil rights. It makes him, as it were, a new man, and gives him a new credit and capacity. (Ex parteGarland, 71 U. S., 4 Wall., 333; 18 Law. ed., 366; U. S. vs. Klein, 80 U. S., 13 Wall., 128; 20 Law. ed., 519; Knote vs. U. S., 95 U. S., 149; 24 Law. ed., 442.) The framers of the federal and the state constitutions were perfectly familiar with the principles governing the power to grant pardons, and it was conferred by these instruments upon the executive with full knowledge of the law upon the subject, and the words of the constitution were used to express the authority formerly exercised by the English crown, or by its representatives in the colonies. (Ex parte Wells, 59 U. S., 18 How., 307; 15 Law. ed., 421.) As this power was understood, it did not comprehend any part of the judicial functions to suspend sentence, and it was never intended that the authority to grant reprieves and pardons should abrogate, or in any degree restrict, the exercise of that power in regard to its own judgments, that criminal courts has so long maintained. The two powers, so distinct and different in their nature and character, were still left separate and distinct, the one to be exercised by the executive, and the other by the judicial department. We therefore conclude that a statute which, in terms, authorizes courts of criminal jurisdiction to suspend sentence in certain cases after conviction, a power inherent in such courts at common law, which was understood when the constitution was adopted to be an ordinary judicial function, and which, ever since its adoption, has been exercised of legislative power under the constitution. It does not encroach, in any just sense, upon the powers of the executive, as they have been understood and practiced from the earliest times. (Quoted with approval in Directors of Prisons vs. Judge of First Instance of Cavite [1915], 29 Phil., 265, Carson, J., concurring, at pp. 294, 295.) In probation, the probationer is in no true sense, as in pardon, a free man. He is not finally and completely exonerated. He is not exempt from the entire punishment which the law inflicts. Under the Probation Act, the probationer's case is not terminated by the mere fact that he is placed on probation. Section 4 of the Act provides that the probation may be definitely terminated and the probationer finally discharged from supervision only after the period of probation shall have been terminated and the probation officer shall have submitted a report, and the court shall have found that the probationer has complied with the conditions of probation. The probationer, then, during the period of probation, remains in legal custody subject to the control of the probation officer and of the court; and, he may be rearrested upon the non-fulfillment of the conditions of probation and, when rearrested, may be committed to prison to serve the sentence originally imposed upon him. (Secs. 2, 3, 5 and 6, Act No. 4221.) The probation described in the act is not pardon. It is not complete liberty, and may be far from it. It is really a new mode of punishment, to be applied by the judge in a proper case, in substitution of the imprisonment and find prescribed by the criminal laws. For this reason its application is as purely a
judicial act as any other sentence carrying out the law deemed applicable to the offense. The executive act of pardon, on the contrary, is against the criminal law, which binds and directs the judges, or rather is outside of and above it. There is thus no conflict with the pardoning power, and no possible unconstitutionality of the Probation Act for this cause. (Archer vs. Snook [1926], 10 F. [2d], 567, 569.) Probation should also be distinguished from reprieve and from commutation of the sentence. Snodgrass vs. State ([1912], 67 Tex. Crim. Rep., 615;41 L. R. A. [N. S.], 1144; 150 S. W., 162), is relied upon most strongly by the petitioners as authority in support of their contention that the power to grant pardons and reprieves, having been vested exclusively upon the Chief Executive by the Jones Law, may not be conferred by the legislature upon the courts by means of probation law authorizing the indefinite judicial suspension of sentence. We have examined that case and found that although the Court of Criminal Appeals of Texas held that the probation statute of the state in terms conferred on the district courts the power to grant pardons to persons convicted of crime, it also distinguished between suspensions sentence on the one hand, and reprieve and commutation of sentence on the other. Said the court, through Harper, J.: That the power to suspend the sentence does not conflict with the power of the Governor to grant reprieves is settled by the decisions of the various courts; it being held that the distinction between a "reprieve" and a suspension of sentence is that a reprieve postpones the execution of the sentence to a day certain, whereas a suspension is for an indefinite time. (Carnal vs. People, 1 Parker, Cr. R., 262; In re Buchanan, 146 N. Y., 264; 40 N. E., 883), and cases cited in 7 Words & Phrases, pp. 6115, 6116. This law cannot be hold in conflict with the power confiding in the Governor to grant commutations of punishment, for a commutations is not but to change the punishment assessed to a less punishment. In State ex rel. Bottomnly vs. District Court ([1925], 73 Mont., 541; 237 Pac., 525), the Supreme Court of Montana had under consideration the validity of the adult probation law of the state enacted in 1913, now found in sections 12078-12086, Revised Codes of 1921. The court held the law valid as not impinging upon the pardoning power of the executive. In a unanimous decision penned by Justice Holloway, the court said: . . . . the term "pardon", "commutation", and "respite" each had a well understood meaning at the time our Constitution was adopted, and no one of them was intended to comprehend the suspension of the execution of the judgment as that phrase is employed in sections 12078-12086. A "pardon" is an act of grace, proceeding from the power intrusted with the execution of the laws which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed (United States vs. Wilson, 7 Pet., 150; 8 Law. ed., 640); It is a remission of guilt (State vs. Lewis, 111 La., 693; 35 So., 816), a forgiveness of the offense (Cook vs. Middlesex County, 26 N. J. Law, 326; Ex parte Powell, 73 Ala., 517; 49 Am. Rep., 71). "Commutation" is a remission of a part of the punishment; a substitution of a less penalty for the one originally imposed (Lee vs. Murphy, 22 Grat. [Va.] 789; 12 Am. Rep., 563; Rich vs. Chamberlain, 107 Mich., 381; 65 N. W., 235). A "reprieve" or "respite" is the withholding of the sentence for an interval of time (4 Blackstone's Commentaries, 394), a postponement of execution (Carnal vs. People, 1 Parker, Cr. R. [N. Y.], 272), a temporary suspension of execution (Butler vs. State, 97 Ind., 373).
Few adjudicated cases are to be found in which the validity of a statute similar to our section 12078 has been determined; but the same objections have been urged against parole statutes which vest the power to parole in persons other than those to whom the power of pardon is granted, and these statutes have been upheld quite uniformly, as a reference to the numerous cases cited in the notes to Woods vs. State (130 Tenn., 100; 169 S. W.,558, reported in L. R. A., 1915F, 531), will disclose. (See, also, 20 R. C. L., 524.) We conclude that the Probation Act does not conflict with the pardoning power of the Executive. The pardoning power, in respect to those serving their probationary sentences, remains as full and complete as if the Probation Law had never been enacted. The President may yet pardon the probationer and thus place it beyond the power of the court to order his rearrest and imprisonment. (Riggs vs. United States [1926], 14 F. [2d], 5, 7.) 2. But while the Probation Law does not encroach upon the pardoning power of the executive and is not for that reason void, does section 11 thereof constitute, as contended, an undue delegation of legislative power? Under the constitutional system, the powers of government are distributed among three coordinate and substantially independent organs: the legislative, the executive and the judicial. Each of these departments of the government derives its authority from the Constitution which, in turn, is the highest expression of popular will. Each has exclusive cognizance of the matters within its jurisdiction, and is supreme within its own sphere. The power to make laws the legislative power is vested in a bicameral Legislature by the Jones Law (sec. 12) and in a unicamiral National Assembly by the Constitution (Act. VI, sec. 1, Constitution of the Philippines). The Philippine Legislature or the National Assembly may not escape its duties and responsibilities by delegating that power to any other body or authority. Any attempt to abdicate the power is unconstitutional and void, on the principle that potestas delegata non delegare potest. This principle is said to have originated with the glossators, was introduced into English law through a misreading of Bracton, there developed as a principle of agency, was established by Lord Coke in the English public law in decisions forbidding the delegation of judicial power, and found its way into America as an enlightened principle of free government. It has since become an accepted corollary of the principle of separation of powers. (5 Encyc. of the Social Sciences, p. 66.) The classic statement of the rule is that of Locke, namely: "The legislative neither must nor can transfer the power of making laws to anybody else, or place it anywhere but where the people have." (Locke on Civil Government, sec. 142.) Judge Cooley enunciates the doctrine in the following oft-quoted language: "One of the settled maxims in constitutional law is, that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the state has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until the Constitution itself is charged. The power to whose judgment, wisdom, and patriotism this high prerogative has been intrusted cannot relieve itself of the responsibilities by choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment,
wisdom, and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust." (Cooley on Constitutional Limitations, 8th ed., Vol. I, p. 224. Quoted with approval in U. S. vs. Barrias [1908], 11 Phil., 327.) This court posits the doctrine "on the ethical principle that such a delegated power constitutes not only a right but a duty to be performed by the delegate by the instrumentality of his own judgment acting immediately upon the matter of legislation and not through the intervening mind of another. (U. S. vs. Barrias, supra, at p. 330.) The rule, however, which forbids the delegation of legislative power is not absolute and inflexible. It admits of exceptions. An exceptions sanctioned by immemorial practice permits the central legislative body to delegate legislative powers to local authorities. (Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660; U. S. vs. Salaveria [1918], 39 Phil., 102; Stoutenburgh vs. Hennick [1889], 129 U. S., 141; 32 Law. ed., 637; 9 Sup. Ct. Rep., 256; State vs. Noyes [1855], 30 N. H., 279.) "It is a cardinal principle of our system of government, that local affairs shall be managed by local authorities, and general affairs by the central authorities; and hence while the rule is also fundamental that the power to make laws cannot be delegated, the creation of the municipalities exercising local self government has never been held to trench upon that rule. Such legislation is not regarded as a transfer of general legislative power, but rather as the grant of the authority to prescribed local regulations, according to immemorial practice, subject of course to the interposition of the superior in cases of necessity." (Stoutenburgh vs. Hennick, supra.) On quite the same principle, Congress is powered to delegate legislative power to such agencies in the territories of the United States as it may select. A territory stands in the same relation to Congress as a municipality or city to the state government. (United States vs. Heinszen [1907], 206 U. S., 370; 27 Sup. Ct. Rep., 742; 51 L. ed., 1098; 11 Ann. Cas., 688; Dorr vs. United States [1904], 195 U.S., 138; 24 Sup. Ct. Rep., 808; 49 Law. ed., 128; 1 Ann. Cas., 697.) Courts have also sustained the delegation of legislative power to the people at large. Some authorities maintain that this may not be done (12 C. J., pp. 841, 842; 6 R. C. L., p. 164, citing People vs. Kennedy [1913], 207 N. Y., 533; 101 N. E., 442; Ann. Cas., 1914C, 616). However, the question of whether or not a state has ceased to be republican in form because of its adoption of the initiative and referendum has been held not to be a judicial but a political question (Pacific States Tel. & Tel. Co. vs. Oregon [1912], 223 U. S., 118; 56 Law. ed., 377; 32 Sup. Cet. Rep., 224), and as the constitutionality of such laws has been looked upon with favor by certain progressive courts, the sting of the decisions of the more conservative courts has been pretty well drawn. (Opinions of the Justices [1894], 160 Mass., 586; 36 N. E., 488; 23 L. R. A., 113; Kiernan vs. Portland [1910], 57 Ore., 454; 111 Pac., 379; 1132 Pac., 402; 37 L. R. A. [N. S.], 332; Pacific States Tel. & Tel. Co. vs. Oregon, supra.) Doubtless, also, legislative power may be delegated by the Constitution itself. Section 14, paragraph 2, of article VI of the Constitution of the Philippines provides that "The National Assembly may by law authorize the President, subject to such limitations and restrictions as it may impose, to fix within specified limits, tariff rates, import or export quotas, and tonnage and wharfage dues." And section 16 of the same article of the Constitution provides that "In times of war or other national emergency, the National Assembly may by law authorize the President, for a limited period and subject to such restrictions as it may prescribed, to promulgate rules and regulations to carry out a declared national policy." It is beyond the scope of this decision to determine whether or not, in the absence of the foregoing constitutional provisions, the President could be authorized to exercise the
powers thereby vested in him. Upon the other hand, whatever doubt may have existed has been removed by the Constitution itself. The case before us does not fall under any of the exceptions hereinabove mentioned. The challenged section of Act No. 4221 in section 11 which reads as follows: This Act shall apply only in those provinces in which the respective provincial boards have provided for the salary of a probation officer at rates not lower than those now provided for provincial fiscals. Said probation officer shall be appointed by the Secretary of Justice and shall be subject to the direction of the Probation Office. (Emphasis ours.) In testing whether a statute constitute an undue delegation of legislative power or not, it is usual to inquire whether the statute was complete in all its terms and provisions when it left the hands of the legislature so that nothing was left to the judgment of any other appointee or delegate of the legislature. (6 R. C. L., p. 165.) In the United States vs. Ang Tang Ho ([1922], 43 Phil., 1), this court adhered to the foregoing rule when it held an act of the legislature void in so far as it undertook to authorize the Governor-General, in his discretion, to issue a proclamation fixing the price of rice and to make the sale of it in violation of the proclamation a crime. (See and cf. Compaia General de Tabacos vs. Board of Public Utility Commissioners [1916], 34 Phil., 136.) The general rule, however, is limited by another rule that to a certain extent matters of detail may be left to be filled in by rules and regulations to be adopted or promulgated by executive officers and administrative boards. (6 R. C. L., pp. 177-179.) For the purpose of Probation Act, the provincial boards may be regarded as administrative bodies endowed with power to determine when the Act should take effect in their respective provinces. They are the agents or delegates of the legislature in this respect. The rules governing delegation of legislative power to administrative and executive officers are applicable or are at least indicative of the rule which should be here adopted. An examination of a variety of cases on delegation of power to administrative bodies will show that the ratio decidendi is at variance but, it can be broadly asserted that the rationale revolves around the presence or absence of a standard or rule of action or the sufficiency thereof in the statute, to aid the delegate in exercising the granted discretion. In some cases, it is held that the standard is sufficient; in others that is insufficient; and in still others that it is entirely lacking. As a rule, an act of the legislature is incomplete and hence invalid if it does not lay down any rule or definite standard by which the administrative officer or board may be guided in the exercise of the discretionary powers delegated to it. (See Schecter vs. United States [1925], 295 U. S., 495; 79 L. ed., 1570; 55 Sup. Ct. Rep., 837; 97 A.L.R., 947; People ex rel. Rice vs. Wilson Oil Co. [1936], 364 Ill., 406; 4 N. E. [2d], 847; 107 A.L.R., 1500 and cases cited. See also R. C. L., title "Constitutional Law", sec 174.) In the case at bar, what rules are to guide the provincial boards in the exercise of their discretionary power to determine whether or not the Probation Act shall apply in their respective provinces? What standards are fixed by the Act? We do not find any and none has been pointed to us by the respondents. The probation Act does not, by the force of any of its provisions, fix and impose upon the provincial boards any standard or guide in the exercise of their discretionary power. What is granted, if we may use the language of Justice Cardozo in the recent case of Schecter, supra, is a "roving commission" which enables the provincial
boards to exercise arbitrary discretion. By section 11 if the Act, the legislature does not seemingly on its own authority extend the benefits of the Probation Act to the provinces but in reality leaves the entire matter for the various provincial boards to determine. In other words, the provincial boards of the various provinces are to determine for themselves, whether the Probation Law shall apply to their provinces or not at all. The applicability and application of the Probation Act are entirely placed in the hands of the provincial boards. If the provincial board does not wish to have the Act applied in its province, all that it has to do is to decline to appropriate the needed amount for the salary of a probation officer. The plain language of the Act is not susceptible of any other interpretation. This, to our minds, is a virtual surrender of legislative power to the provincial boards. "The true distinction", says Judge Ranney, "is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made." (Cincinnati, W. & Z. R. Co. vs. Clinton County Comrs. [1852]; 1 Ohio St., 77, 88. See also, Sutherland on Statutory Construction, sec 68.) To the same effect are the decision of this court inMunicipality of Cardona vs. Municipality of Binangonan ([1917], 36 Phil., 547); Rubi vs. Provincial Board of Mindoro ([1919],39 Phil., 660) and Cruz vs. Youngberg ([1931], 56 Phil., 234). In the first of these cases, this court sustained the validity of the law conferring upon the Governor-General authority to adjust provincial and municipal boundaries. In the second case, this court held it lawful for the legislature to direct non-Christian inhabitants to take up their habitation on unoccupied lands to be selected by the provincial governor and approved by the provincial board. In the third case, it was held proper for the legislature to vest in the Governor-General authority to suspend or not, at his discretion, the prohibition of the importation of the foreign cattle, such prohibition to be raised "if the conditions of the country make this advisable or if deceased among foreign cattle has ceased to be a menace to the agriculture and livestock of the lands." It should be observed that in the case at bar we are not concerned with the simple transference of details of execution or the promulgation by executive or administrative officials of rules and regulations to carry into effect the provisions of a law. If we were, recurrence to our own decisions would be sufficient. (U. S. vs. Barrias [1908], 11 Phil., 327; U.S. vs. Molina [1914], 29 Phil., 119; Alegre vs. Collector of Customs [1929], 53 Phil., 394; Cebu Autobus Co. vs. De Jesus [1931], 56 Phil., 446; U. S. vs. Gomez [1915], 31 Phil., 218; Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660.) It is connected, however, that a legislative act may be made to the effect as law after it leaves the hands of the legislature. It is true that laws may be made effective on certain contingencies, as by proclamation of the executive or the adoption by the people of a particular community (6 R. C. L., 116, 170-172; Cooley, Constitutional Limitations, 8th ed., Vol. I, p. 227). In Wayman vs. Southard ([1825], 10 Wheat. 1; 6 Law. ed., 253), the Supreme Court of the United State ruled that the legislature may delegate a power not legislative which it may itself rightfully exercise.(Vide, also, Dowling vs. Lancashire Ins. Co. [1896], 92 Wis., 63; 65 N. W., 738; 31 L. R. A., 112.) The power to ascertain facts is such a power which may be delegated. There is nothing essentially legislative in ascertaining the existence of facts or conditions as the basis of the taking into effect of a law. That is a mental process common to all branches of the government. (Dowling vs. Lancashire Ins. Co., supra; In reVillage of North Milwaukee
[1896], 93 Wis., 616; 97 N.W., 1033; 33 L.R.A., 938; Nash vs. Fries [1906], 129 Wis., 120; 108 N.W., 210; Field vs. Clark [1892], 143 U.S., 649; 12 Sup. Ct., 495; 36 Law. ed., 294.) Notwithstanding the apparent tendency, however, to relax the rule prohibiting delegation of legislative authority on account of the complexity arising from social and economic forces at work in this modern industrial age (Pfiffner, Public Administration [1936] ch. XX; Laski, "The Mother of Parliaments", foreign Affairs, July, 1931, Vol. IX, No. 4, pp. 569-579; Beard, "Squirt-Gun Politics", in Harper's Monthly Magazine, July, 1930, Vol. CLXI, pp. 147, 152), the orthodox pronouncement of Judge Cooley in his work on Constitutional Limitations finds restatement in Prof. Willoughby's treatise on the Constitution of the United States in the following language speaking of declaration of legislative power to administrative agencies: "The principle which permits the legislature to provide that the administrative agent may determine when the circumstances are such as require the application of a law is defended upon the ground that at the time this authority is granted, the rule of public policy, which is the essence of the legislative act, is determined by the legislature. In other words, the legislature, as it its duty to do, determines that, under given circumstances, certain executive or administrative action is to be taken, and that, under other circumstances, different of no action at all is to be taken. What is thus left to the administrative official is not the legislative determination of what public policy demands, but simply the ascertainment of what the facts of the case require to be done according to the terms of the law by which he is governed." (Willoughby on the Constitution of the United States, 2nd ed., Vol. II, p. 1637.) In Miller vs. Mayer, etc., of New York [1883], 109 U.S., 3 Sup. Ct. Rep., 228; 27 Law. ed., 971, 974), it was said: "The efficiency of an Act as a declaration of legislative will must, of course, come from Congress, but the ascertainment of the contingency upon which the Act shall take effect may be left to such agencies as it may designate." (See, also, 12 C.J., p. 864; State vs. Parker [1854], 26 Vt., 357; Blanding vs. Burr [1859], 13 Cal., 343, 258.) The legislature, then may provide that a contingencies leaving to some other person or body the power to determine when the specified contingencies has arisen. But, in the case at bar, the legislature has not made the operation of the Prohibition Act contingent upon specified facts or conditions to be ascertained by the provincial board. It leaves, as we have already said, the entire operation or nonoperation of the law upon the provincial board. the discretion vested is arbitrary because it is absolute and unlimited. A provincial board need not investigate conditions or find any fact, or await the happening of any specified contingency. It is bound by no rule, limited by no principle of expendiency announced by the legislature. It may take into consideration certain facts or conditions; and, again, it may not. It may have any purpose or no purpose at all. It need not give any reason whatsoever for refusing or failing to appropriate any funds for the salary of a probation officer. This is a matter which rest entirely at its pleasure. The fact that at some future time we cannot say when the provincial boards may appropriate funds for the salaries of probation officers and thus put the law into operation in the various provinces will not save the statute. The time of its taking into effect, we reiterate, would yet be based solely upon the will of the provincial boards and not upon the happening of a certain specified contingency, or upon the ascertainment of certain facts or conditions by a person or body other than legislature itself. The various provincial boards are, in practical effect, endowed with the power of suspending the operation of the Probation Law in their respective provinces. In some jurisdiction, constitutions provided that laws may be suspended only by the legislature or by its authority. Thus, section 28, article I of the
Constitution of Texas provides that "No power of suspending laws in this state shall be exercised except by the legislature"; and section 26, article I of the Constitution of Indiana provides "That the operation of the laws shall never be suspended, except by authority of the General Assembly." Yet, even provisions of this sort do not confer absolute power of suspension upon the legislature. While it may be undoubted that the legislature may suspend a law, or the execution or operation of a law, a law may not be suspended as to certain individuals only, leaving the law to be enjoyed by others. The suspension must be general, and cannot be made for individual cases or for particular localities. In Holden vs. James ([1814], 11 Mass., 396; 6 Am. Dec., 174, 177, 178), it was said: By the twentieth article of the declaration of rights in the constitution of this commonwealth, it is declared that the power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for. Many of the articles in that declaration of rights were adopted from the Magna Charta of England, and from the bill of rights passed in the reign of William and Mary. The bill of rights contains an enumeration of the oppressive acts of James II, tending to subvert and extirpate the protestant religion, and the laws and liberties of the kingdom; and the first of them is the assuming and exercising a power of dispensing with and suspending the laws, and the execution of the laws without consent of parliament. The first article in the claim or declaration of rights contained in the statute is, that the exercise of such power, by legal authority without consent of parliament, is illegal. In the tenth section of the same statute it is further declared and enacted, that "No dispensation by non obstante of or to any statute, or part thereof, should be allowed; but the same should be held void and of no effect, except a dispensation be allowed of in such statute." There is an implied reservation of authority in the parliament to exercise the power here mentioned; because, according to the theory of the English Constitution, "that absolute despotic power, which must in all governments reside somewhere," is intrusted to the parliament: 1 Bl. Com., 160. The principles of our government are widely different in this particular. Here the sovereign and absolute power resides in the people; and the legislature can only exercise what is delegated to them according to the constitution. It is obvious that the exercise of the power in question would be equally oppressive to the subject, and subversive of his right to protection, "according to standing laws," whether exercised by one man or by a number of men. It cannot be supposed that the people when adopting this general principle from the English bill of rights and inserting it in our constitution, intended to bestow by implication on the general court one of the most odious and oppressive prerogatives of the ancient kings of England. It is manifestly contrary to the first principles of civil liberty and natural justice, and to the spirit of our constitution and laws, that any one citizen should enjoy privileges and advantages which are denied to all others under like circumstances; or that ant one should be subject to losses, damages, suits, or actions from which all others under like circumstances are exempted. To illustrate the principle: A section of a statute relative to dogs made the owner of any dog liable to the owner of domestic animals wounded by it for the damages without proving a knowledge of it vicious disposition. By a provision of the act, power was given to the board of supervisors to determine whether or not during the current year their county should be governed by the provisions of the act of which that section constituted a part. It was held that the legislature could not confer that power. The
court observed that it could no more confer such a power than to authorize the board of supervisors of a county to abolish in such county the days of grace on commercial paper, or to suspend the statute of limitations. (Slinger vs. Henneman [1875], 38 Wis., 504.) A similar statute in Missouri was held void for the same reason in State vs. Field ([1853, 17 Mo., 529;59 Am. Dec., 275.) In that case a general statute formulating a road system contained a provision that "if the county court of any county should be of opinion that the provisions of the act should not be enforced, they might, in their discretion, suspend the operation of the same for any specified length of time, and thereupon the act should become inoperative in such county for the period specified in such order; and thereupon order the roads to be opened and kept in good repair, under the laws theretofore in force." Said the court: ". . . this act, by its own provisions, repeals the inconsistent provisions of a former act, and yet it is left to the county court to say which act shall be enforce in their county. The act does not submit the question to the county court as an original question, to be decided by that tribunal, whether the act shall commence its operation within the county; but it became by its own terms a law in every county not excepted by name in the act. It did not, then, require the county court to do any act in order to give it effect. But being the law in the county, and having by its provisions superseded and abrogated the inconsistent provisions of previous laws, the county court is . . . empowered, to suspend this act and revive the repealed provisions of the former act. When the question is before the county court for that tribunal to determine which law shall be in force, it is urge before us that the power then to be exercised by the court is strictly legislative power, which under our constitution, cannot be delegated to that tribunal or to any other body of men in the state. In the present case, the question is not presented in the abstract; for the county court of Saline county, after the act had been for several months in force in that county, did by order suspend its operation; and during that suspension the offense was committed which is the subject of the present indictment . . . ." (SeeMitchell vs. State [1901], 134 Ala., 392; 32 S., 687.) True, the legislature may enact laws for a particular locality different from those applicable to other localities and, while recognizing the force of the principle hereinabove expressed, courts in may jurisdiction have sustained the constitutionality of the submission of option laws to the vote of the people. (6 R.C.L., p. 171.) But option laws thus sustained treat of subjects purely local in character which should receive different treatment in different localities placed under different circumstances. "They relate to subjects which, like the retailing of intoxicating drinks, or the running at large of cattle in the highways, may be differently regarded in different localities, and they are sustained on what seems to us the impregnable ground, that the subject, though not embraced within the ordinary powers of municipalities to make by-laws and ordinances, is nevertheless within the class of public regulations, in respect to which it is proper that the local judgment should control." (Cooley on Constitutional Limitations, 5th ed., p. 148.) So that, while we do not deny the right of local self-government and the propriety of leaving matters of purely local concern in the hands of local authorities or for the people of small communities to pass upon, we believe that in matters of general of general legislation like that which treats of criminals in general, and as regards the general subject of probation, discretion may not be vested in a manner so unqualified and absolute as provided in Act No. 4221. True, the statute does not expressly state that the provincial boards may suspend the operation of the Probation Act in particular provinces but, considering that, in being vested with the authority to appropriate or not the necessary funds for the salaries of probation officers, they thereby are given absolute discretion to
determine whether or not the law should take effect or operate in their respective provinces, the provincial boards are in reality empowered by the legislature to suspend the operation of the Probation Act in particular provinces, the Act to be held in abeyance until the provincial boards should decide otherwise by appropriating the necessary funds. The validity of a law is not tested by what has been done but by what may be done under its provisions. (Walter E. Olsen & Co. vs. Aldanese and Trinidad [1922], 43 Phil., 259; 12 C. J., p. 786.) It in conceded that a great deal of latitude should be granted to the legislature not only in the expression of what may be termed legislative policy but in the elaboration and execution thereof. "Without this power, legislation would become oppressive and yet imbecile." (People vs. Reynolds, 5 Gilman, 1.) It has been said that popular government lives because of the inexhaustible reservoir of power behind it. It is unquestionable that the mass of powers of government is vested in the representatives of the people and that these representatives are no further restrained under our system than by the express language of the instrument imposing the restraint, or by particular provisions which by clear intendment, have that effect. (Angara vs. Electoral Commission [1936], 35 Off. Ga., 23; Schneckenburger vs. Moran [1936], 35 Off. Gaz., 1317.) But, it should be borne in mind that a constitution is both a grant and a limitation of power and one of these time-honored limitations is that, subject to certain exceptions, legislative power shall not be delegated. We conclude that section 11 of Act No. 4221 constitutes an improper and unlawful delegation of legislative authority to the provincial boards and is, for this reason, unconstitutional and void. 3. It is also contended that the Probation Act violates the provisions of our Bill of Rights which prohibits the denial to any person of the equal protection of the laws (Act. III, sec. 1 subsec. 1. Constitution of the Philippines.) This basic individual right sheltered by the Constitution is a restraint on all the tree grand departments of our government and on the subordinate instrumentalities and subdivision thereof, and on many constitutional power, like the police power, taxation and eminent domain. The equal protection of laws, sententiously observes the Supreme Court of the United States, "is a pledge of the protection of equal laws." (Yick Wo vs. Hopkins [1886], 118 U. S., 356; 30 Law. ed., 220; 6 Sup. Ct. Rep., 10464; Perley vs. North Carolina, 249 U. S., 510; 39 Sup. Ct. Rep., 357; 63 Law. ed., 735.) Of course, what may be regarded as a denial of the equal protection of the laws in a question not always easily determined. No rule that will cover every case can be formulated. (Connolly vs. Union Sewer Pipe Co. [1902], 184, U. S., 540; 22 Sup. Ct., Rep., 431; 46 Law. ed., 679.) Class legislation discriminating against some and favoring others in prohibited. But classification on a reasonable basis, and nor made arbitrarily or capriciously, is permitted. (Finely vs. California [1911], 222 U. S., 28; 56 Law. ed., 75; 32 Sup. Ct. Rep., 13; Gulf. C. & S. F. Ry Co. vs. Ellis [1897], 165 U. S., 150; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255; Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) The classification, however, to be reasonable must be based on substantial distinctions which make real differences; it must be germane to the purposes of the law; it must not be limited to existing conditions only, and must apply equally to each member of the class. (Borgnis vs. Falk. Co. [1911], 147 Wis., 327, 353; 133 N. W., 209; 3 N. C. C. A., 649; 37 L. R. A. [N. S.], 489; State vs. Cooley, 56 Minn., 540; 530-552; 58 N. W., 150; Lindsley vs. Natural Carbonic Gas
Co.[1911], 220 U. S., 61, 79, 55 Law. ed., 369, 377; 31 Sup. Ct. Rep., 337; Ann. Cas., 1912C, 160; Lake Shore & M. S. R. Co. vs. Clough [1917], 242 U.S., 375; 37 Sup. Ct. Rep., 144; 61 Law. ed., 374; Southern Ry. Co. vs. Greene [1910], 216 U. S., 400; 30 Sup. Ct. Rep., 287; 54 Law. ed., 536; 17 Ann. Cas., 1247; Truax vs. Corrigan [1921], 257 U. S., 312; 12 C. J., pp. 1148, 1149.) In the case at bar, however, the resultant inequality may be said to flow from the unwarranted delegation of legislative power, although perhaps this is not necessarily the result in every case. Adopting the example given by one of the counsel for the petitioners in the course of his oral argument, one province may appropriate the necessary fund to defray the salary of a probation officer, while another province may refuse or fail to do so. In such a case, the Probation Act would be in operation in the former province but not in the latter. This means that a person otherwise coming within the purview of the law would be liable to enjoy the benefits of probation in one province while another person similarly situated in another province would be denied those same benefits. This is obnoxious discrimination. Contrariwise, it is also possible for all the provincial boards to appropriate the necessary funds for the salaries of the probation officers in their respective provinces, in which case no inequality would result for the obvious reason that probation would be in operation in each and every province by the affirmative action of appropriation by all the provincial boards. On that hypothesis, every person coming within the purview of the Probation Act would be entitled to avail of the benefits of the Act. Neither will there be any resulting inequality if no province, through its provincial board, should appropriate any amount for the salary of the probation officer which is the situation now and, also, if we accept the contention that, for the purpose of the Probation Act, the City of Manila should be considered as a province and that the municipal board of said city has not made any appropriation for the salary of the probation officer. These different situations suggested show, indeed, that while inequality may result in the application of the law and in the conferment of the benefits therein provided, inequality is not in all cases the necessary result. But whatever may be the case, it is clear that in section 11 of the Probation Act creates a situation in which discrimination and inequality are permitted or allowed. There are, to be sure, abundant authorities requiring actual denial of the equal protection of the law before court should assume the task of setting aside a law vulnerable on that score, but premises and circumstances considered, we are of the opinion that section 11 of Act No. 4221 permits of the denial of the equal protection of the law and is on that account bad. We see no difference between a law which permits of such denial. A law may appear to be fair on its face and impartial in appearance, yet, if it permits of unjust and illegal discrimination, it is within the constitutional prohibitions. (By analogy, Chy Lung vs. Freeman [1876], 292 U. S., 275; 23 Law. ed., 550; Henderson vs. Mayor [1876], 92 U. S., 259; 23 Law. ed., 543; Ex parte Virginia [1880], 100 U. S., 339; 25 Law. ed., 676; Neal vs. Delaware [1881], 103 U. S., 370; 26 Law. ed., 567; Soon Hing vs. Crowley [1885], 113 U. S., 703; 28 Law. ed., 1145, Yick Wo vs. Hopkins [1886],118 U. S., 356; 30 Law. ed., 220; Williams vs. Mississippi [1897], 170 U. S., 218; 18 Sup. Ct. Rep., 583; 42 Law. ed., 1012; Bailey vs. Alabama [1911], 219 U. S., 219; 31 Sup. Ct. Rep. 145; 55 Law. ed., Sunday Lake Iron Co. vs. Wakefield [1918], 247 U. S., 450; 38 Sup. Ct. Rep., 495; 62 Law. ed., 1154.) In other words, statutes may be adjudged unconstitutional because of their effect in operation (General Oil Co. vs. Clain [1907], 209 U. S., 211; 28 Sup. Ct. Rep., 475; 52 Law. ed., 754; State vs. Clement Nat. Bank [1911], 84 Vt., 167; 78 Atl., 944; Ann. Cas., 1912D, 22). If the law has the effect of denying the equal protection of the law it is unconstitutional. (6 R. C. L. p. 372; Civil
Rights Cases, 109 U. S., 3; 3 Sup. Ct. Rep., 18; 27 Law. ed., 835; Yick Wo vs. Hopkins, supra; State vs. Montgomery, 94 Me., 192; 47 Atl., 165; 80 A. S. R., 386; State vs. Dering, 84 Wis., 585; 54 N. W., 1104; 36 A. S. R., 948; 19 L. R. A., 858.) Under section 11 of the Probation Act, not only may said Act be in force in one or several provinces and not be in force in other provinces, but one province may appropriate for the salary of the probation officer of a given year and have probation during that year and thereafter decline to make further appropriation, and have no probation is subsequent years. While this situation goes rather to the abuse of discretion which delegation implies, it is here indicated to show that the Probation Act sanctions a situation which is intolerable in a government of laws, and to prove how easy it is, under the Act, to make the guaranty of the equality clause but "a rope of sand". (Brewer, J. Gulf C. & S. F. Ry. Co. vs. Ellis [1897], 165 U. S., 150 154; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255.)lawph!1.net Great reliance is placed by counsel for the respondents on the case of Ocampo vs. United States ([1914], 234 U. S., 91; 58 Law. ed., 1231). In that case, the Supreme Court of the United States affirmed the decision of this court (18 Phil., 1) by declining to uphold the contention that there was a denial of the equal protection of the laws because, as held in Missouri vs. Lewis (Bowman vs. Lewis) decided in 1880 (101 U. S., 220; 25 Law. ed., 991), the guaranty of the equality clause does not require territorial uniformity. It should be observed, however, that this case concerns the right to preliminary investigations in criminal cases originally granted by General Orders No. 58. No question of legislative authority was involved and the alleged denial of the equal protection of the laws was the result of the subsequent enactment of Act No. 612, amending the charter of the City of Manila (Act No. 813) and providing in section 2 thereof that "in cases triable only in the court of first instance of the City of Manila, the defendant . . . shall not be entitled as of right to a preliminary examination in any case where the prosecuting attorney, after a due investigation of the facts . . . shall have presented an information against him in proper form . . . ." Upon the other hand, an analysis of the arguments and the decision indicates that the investigation by the prosecuting attorney although not in the form had in the provinces was considered a reasonable substitute for the City of Manila, considering the peculiar conditions of the city as found and taken into account by the legislature itself. Reliance is also placed on the case of Missouri vs. Lewis, supra. That case has reference to a situation where the constitution of Missouri permits appeals to the Supreme Court of the state from final judgments of any circuit court, except those in certain counties for which counties the constitution establishes a separate court of appeals called St. Louis Court of Appeals. The provision complained of, then, is found in the constitution itself and it is the constitution that makes the apportionment of territorial jurisdiction. We are of the opinion that section 11 of the Probation Act is unconstitutional and void because it is also repugnant to equal-protection clause of our Constitution. Section 11 of the Probation Act being unconstitutional and void for the reasons already stated, the next inquiry is whether or not the entire Act should be avoided.
In seeking the legislative intent, the presumption is against any mutilation of a statute, and the courts will resort to elimination only where an unconstitutional provision is interjected into a statute otherwise valid, and is so independent and separable that its removal will leave the constitutional features and purposes of the act substantially unaffected by the process. (Riccio vs. Hoboken, 69 N. J. Law., 649, 662; 63 L. R. A., 485; 55 Atl., 1109, quoted in Williams vs. Standard Oil Co. [1929], 278 U.S., 235, 240; 73 Law. ed., 287, 309; 49 Sup. Ct. Rep., 115; 60 A. L. R., 596.) In Barrameda vs. Moir ([1913], 25 Phil., 44, 47), this court stated the well-established rule concerning partial invalidity of statutes in the following language: . . . where part of the a statute is void, as repugnant to the Organic Law, while another part is valid, the valid portion, if separable from the valid, may stand and be enforced. But in order to do this, the valid portion must be in so far independent of the invalid portion that it is fair to presume that the Legislative would have enacted it by itself if they had supposed that they could not constitutionally enact the other. (Mutual Loan Co. vs. Martell, 200 Mass., 482; 86 N. E., 916; 128 A. S. R., 446; Supervisors of Holmes Co. vs. Black Creek Drainage District, 99 Miss., 739; 55 Sou., 963.) Enough must remain to make a complete, intelligible, and valid statute, which carries out the legislative intent. (Pearson vs. Bass. 132 Ga., 117; 63 S. E., 798.) The void provisions must be eliminated without causing results affecting the main purpose of the Act, in a manner contrary to the intention of the Legislature. (State vs. A. C. L. R., Co., 56 Fla., 617, 642; 47 Sou., 969; Harper vs. Galloway, 58 Fla., 255; 51 Sou., 226; 26 L. R. A., N. S., 794; Connolly vs. Union Sewer Pipe Co., 184 U. S., 540, 565; People vs. Strassheim, 240 Ill., 279, 300; 88 N. E., 821; 22 L. R. A., N. S., 1135; State vs. Cognevich, 124 La., 414; 50 Sou., 439.) The language used in the invalid part of a statute can have no legal force or efficacy for any purpose whatever, and what remains must express the legislative will, independently of the void part, since the court has no power to legislate. (State vs. Junkin, 85 Neb., 1; 122 N. W., 473; 23 L. R. A., N. S., 839; Vide, also,. U. S., vs. Rodriguez [1918], 38 Phil., 759; Pollock vs. Farmers' Loan and Trust Co. [1895], 158 U. S., 601, 635; 39 Law. ed., 1108, 1125; 15 Sup. Ct. Rep., 912; 6 R.C.L., 121.) It is contended that even if section 11, which makes the Probation Act applicable only in those provinces in which the respective provincial boards provided for the salaries of probation officers were inoperative on constitutional grounds, the remainder of the Act would still be valid and may be enforced. We should be inclined to accept the suggestions but for the fact that said section is, in our opinion, is inseparably linked with the other portions of the Act that with the elimination of the section what would be left is the bare idealism of the system, devoid of any practical benefit to a large number of people who may be deserving of the intended beneficial result of that system. The clear policy of the law, as may be gleaned from a careful examination of the whole context, is to make the application of the system dependent entirely upon the affirmative action of the different provincial boards through appropriation of the salaries for probation officers at rates not lower than those provided for provincial fiscals. Without such action on the part of the various boards, no probation officers would be appointed by the Secretary of Justice to act in the provinces. The Philippines is divided or subdivided into provinces and it needs no argument to show that if not one of the provinces and this is the actual situation now appropriate the necessary fund for the salary of a probation officer, probation under Act No. 4221
would be illusory. There can be no probation without a probation officer. Neither can there be a probation officer without the probation system. Section 2 of the Acts provides that the probation officer shall supervise and visit the probationer. Every probation officer is given, as to the person placed in probation under his care, the powers of the police officer. It is the duty of the probation officer to see that the conditions which are imposed by the court upon the probationer under his care are complied with. Among those conditions, the following are enumerated in section 3 of the Act: That the probationer (a) shall indulge in no injurious or vicious habits; (b) Shall avoid places or persons of disreputable or harmful character; (c) Shall report to the probation officer as directed by the court or probation officers; (d) Shall permit the probation officer to visit him at reasonable times at his place of abode or elsewhere; (e) Shall truthfully answer any reasonable inquiries on the part of the probation officer concerning his conduct or condition; "(f) Shall endeavor to be employed regularly; "(g) Shall remain or reside within a specified place or locality; (f) Shall make reparation or restitution to the aggrieved parties for actual damages or losses caused by his offense; (g) Shall comply with such orders as the court may from time to time make; and (h) Shall refrain from violating any law, statute, ordinance, or any by-law or regulation, promulgated in accordance with law. The court is required to notify the probation officer in writing of the period and terms of probation. Under section 4, it is only after the period of probation, the submission of a report of the probation officer and appropriate finding of the court that the probationer has complied with the conditions of probation that probation may be definitely terminated and the probationer finally discharged from supervision. Under section 5, if the court finds that there is non-compliance with said conditions, as reported by the probation officer, it may issue a warrant for the arrest of the probationer and said probationer may be committed with or without bail. Upon arraignment and after an opportunity to be heard, the court may revoke, continue or modify the probation, and if revoked, the court shall order the execution of the sentence originally imposed. Section 6 prescribes the duties of probation officers: "It shall be the duty of every probation officer to furnish to all persons placed on probation under his supervision a statement of the period and conditions of their probation, and to instruct them concerning the same; to keep informed concerning their conduct and condition; to aid and encourage them by friendly advice and admonition, and by such other measures, not inconsistent with the conditions imposed by court as may seem most suitable, to bring about improvement in their conduct and condition; to report in writing to the court having jurisdiction over said probationers at least once every two months concerning their conduct and condition; to keep records of their work;
make such report as are necessary for the information of the Secretary of Justice and as the latter may require; and to perform such other duties as are consistent with the functions of the probation officer and as the court or judge may direct. The probation officers provided for in this Act may act as parole officers for any penal or reformatory institution for adults when so requested by the authorities thereof, and, when designated by the Secretary of Justice shall act as parole officer of persons released on parole under Act Number Forty-one Hundred and Three, without additional compensation." It is argued, however, that even without section 11 probation officers maybe appointed in the provinces under section 10 of Act which provides as follows: There is hereby created in the Department of Justice and subject to its supervision and control, a Probation Office under the direction of a Chief Probation Officer to be appointed by the GovernorGeneral with the advise and consent of the Senate who shall receive a salary of four eight hundred pesos per annum. To carry out this Act there is hereby appropriated out of any funds in the Insular Treasury not otherwise appropriated, the sum of fifty thousand pesos to be disbursed by the Secretary of Justice, who is hereby authorized to appoint probation officers and the administrative personnel of the probation officer under civil service regulations from among those who possess the qualifications, training and experience prescribed by the Bureau of Civil Service, and shall fix the compensation of such probation officers and administrative personnel until such positions shall have been included in the Appropriation Act. But the probation officers and the administrative personnel referred to in the foregoing section are clearly not those probation officers required to be appointed for the provinces under section 11. It may be said, reddendo singula singulis, that the probation officers referred to in section 10 abovequoted are to act as such, not in the various provinces, but in the central office known as the Probation Office established in the Department of Justice, under the supervision of the Chief Probation Officer. When the law provides that "the probation officer" shall investigate and make reports to the court (secs. 1 and 4); that "the probation officer" shall supervise and visit the probationer (sec. 2; sec. 6, par. d); that the probationer shall report to the "probationer officer" (sec. 3, par. c.), shall allow "the probationer officer" to visit him (sec. 3, par. d), shall truthfully answer any reasonable inquiries on the part of "the probation officer" concerning his conduct or condition (sec. 3, par. 4); that the court shall notify "the probation officer" in writing of the period and terms of probation (sec. 3, last par.), it means the probation officer who is in charge of a particular probationer in a particular province. It never could have been intention of the legislature, for instance, to require the probationer in Batanes, to report to a probationer officer in the City of Manila, or to require a probation officer in Manila to visit the probationer in the said province of Batanes, to place him under his care, to supervise his conduct, to instruct him concerning the conditions of his probation or to perform such other functions as are assigned to him by law. That under section 10 the Secretary of Justice may appoint as many probation officers as there are provinces or groups of provinces is, of course possible. But this would be arguing on what the law may be or should be and not on what the law is. Between is and ought there is a far cry. The wisdom and propriety of legislation is not for us to pass upon. We may think a law better otherwise than it is. But
much as has been said regarding progressive interpretation and judicial legislation we decline to amend the law. We are not permitted to read into the law matters and provisions which are not there. Not for any purpose not even to save a statute from the doom of invalidity. Upon the other hand, the clear intention and policy of the law is not to make the Insular Government defray the salaries of probation officers in the provinces but to make the provinces defray them should they desire to have the Probation Act apply thereto. The sum of P50,000, appropriated "to carry out the purposes of this Act", is to be applied, among other things, for the salaries of probation officers in the central office at Manila. These probation officers are to receive such compensations as the Secretary of Justice may fix "until such positions shall have been included in the Appropriation Act". It was the intention of the legislature to empower the Secretary of Justice to fix the salaries of the probation officers in the provinces or later on to include said salaries in an appropriation act. Considering, further, that the sum of P50,000 appropriated in section 10 is to cover, among other things, the salaries of the administrative personnel of the Probation Office, what would be left of the amount can hardly be said to be sufficient to pay even nominal salaries to probation officers in the provinces. We take judicial notice of the fact that there are 48 provinces in the Philippines and we do not think it is seriously contended that, with the fifty thousand pesos appropriated for the central office, there can be in each province, as intended, a probation officer with a salary not lower than that of a provincial fiscal. If this a correct, the contention that without section 11 of Act No. 4221 said act is complete is an impracticable thing under the remainder of the Act, unless it is conceded that in our case there can be a system of probation in the provinces without probation officers. Probation as a development of a modern penology is a commendable system. Probation laws have been enacted, here and in other countries, to permit what modern criminologist call the "individualization of the punishment", the adjustment of the penalty to the character of the criminal and the circumstances of his particular case. It provides a period of grace in order to aid in the rehabilitation of a penitent offender. It is believed that, in any cases, convicts may be reformed and their development into hardened criminals aborted. It, therefore, takes advantage of an opportunity for reformation and avoids imprisonment so long as the convicts gives promise of reform. (United States vs. Murray [1925], 275 U. S., 347 357, 358; 72 Law. ed., 309; 312, 313; 48 Sup. Ct. Rep., 146; Kaplan vs. Hecht, 24 F. [2d], 664, 665.) The Welfare of society is its chief end and aim. The benefit to the individual convict is merely incidental. But while we believe that probation is commendable as a system and its implantation into the Philippines should be welcomed, we are forced by our inescapable duty to set the law aside because of the repugnancy to our fundamental law. In arriving at this conclusion, we have endeavored to consider the different aspects presented by able counsel for both parties, as well in their memorandums as in their oral argument. We have examined the cases brought to our attention, and others we have been able to reach in the short time at our command for the study and deliberation of this case. In the examination of the cases and in then analysis of the legal principles involved we have inclined to adopt the line of action which in our opinion, is supported better reasoned authorities and is more conducive to the general welfare. (Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) Realizing the conflict of authorities, we have declined to be bound by certain adjudicated cases brought to our attention, except where the point or principle is
settled directly or by clear implication by the more authoritative pronouncements of the Supreme Court of the United States. This line of approach is justified because: (a) The constitutional relations between the Federal and the State governments of the United States and the dual character of the American Government is a situation which does not obtain in the Philippines; (b) The situation of s state of the American Union of the District of Columbia with reference to the Federal Government of the United States is not the situation of the province with respect to the Insular Government (Art. I, sec. 8 cl. 17 and 10th Amendment, Constitution of the United States; Sims vs. Rives, 84 Fed. [2d], 871), (c) The distinct federal and the state judicial organizations of the United States do not embrace the integrated judicial system of the Philippines (Schneckenburger vs. Moran [1936], 35 Off. Gaz., p. 1317); (d) "General propositions do not decide concrete cases" (Justice Holmes in Lochner vs. New York [1904], 198 U. S., 45, 76; 49 Law. ed., 937, 949) and, "to keep pace with . . . new developments of times and circumstances" (Chief Justice Waite in Pensacola Tel. Co. vs. Western Union Tel. Co. [1899], 96 U. S., 1, 9; 24 Law. ed., 708; Yale Law Journal, Vol. XXIX, No. 2, Dec. 1919, 141, 142), fundamental principles should be interpreted having in view existing local conditions and environment. Act No. 4221 is hereby declared unconstitutional and void and the writ of prohibition is, accordingly, granted. Without any pronouncement regarding costs. So ordered. Avancea, C.J., Imperial, Diaz and Concepcion, JJ., concur. Villa-real and Abad Santos, JJ., concur in the result.
EN BANC
[G.R. No. 148560. November 19, 2001]
JOSEPH EJERCITO ESTRADA, petitioner, vs. SANDIGANBAYAN (Third Division) and PEOPLE OF THE PHILIPPINES, respondents. DECISION
BELLOSILLO, J .:
JOHN STUART MILL, in his essay On Liberty , unleashes the full fury of his pen in defense of the rights of the individual from the vast powers of the State and the inroads of societal pressure. But even as he draws a sacrosanct line demarcating the limits on individuality beyond which the State cannot tread - asserting that "individual spontaneity" must be allowed to flourish with very little regard to social interference - he veritably acknowledges that the exercise of rights and liberties is imbued with a civic obligation, which society is justified in enforcing at all cost, against those who would endeavor to withhold fulfillment. Thus he says The sole end for which mankind is warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. Parallel to individual liberty is the natural and illimitable right of the State to self-preservation. With the end of maintaining the integrity and cohesiveness of the body politic, it behooves the State to formulate a system of laws that would compel obeisance to its collective wisdom and inflict punishment for non-observance. The movement from Mill's individual liberalism to unsystematic collectivism wrought changes in the social order, carrying with it a new formulation of fundamental rights and duties more attuned to the imperatives of contemporary socio-political ideologies. In the process, the web of rights and State impositions became tangled and obscured, enmeshed in threads of multiple shades and colors, the skein irregular and broken. Antagonism, often outright collision, between the law as the expression of the will of the State, and the zealous attempts by its members to preserve their individuality and dignity, inevitably followed. It is when individual rights are pitted against State authority that judicial conscience is put to its severest test. Petitioner Joseph Ejercito Estrada, the highest-ranking official to be prosecuted under RA 7080 ( An Act Defining and Penalizing the Crime of Plunder), [1] as amended by RA 7659,[2] wishes to impress upon us that the assailed law is so defectively fashioned that it crosses that thin but distinct line which divides the valid from the constitutionally infirm. He therefore makes a stringent call for this Court to subject the Plunder Law to the crucible of constitutionality mainly because, according to him, (a) it suffers from the vice of vagueness; (b) it dispenses with the "reasonable doubt" standard in criminal prosecutions; and, (c) it abolishes the element of mens rea in crimes already punishable under The Revised Penal Code, all of which are purportedly clear violations of the fundamental rights of the accused to due process and to be informed of the nature and cause of the accusation against him. Specifically, the provisions of the Plunder Law claimed by petitioner to have transgressed constitutional boundaries are Secs. 1, par. (d), 2 and 4 which are reproduced hereunder: Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property, business, enterprise or material possession of any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes:
(1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; (2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public office concerned; (3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities, or government owned or controlled corporations and their subsidiaries; (4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking; (5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or (6) By taking advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines. Section 2. Definition of the Crime of Plunder, Penalties. - Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described in Section 1 (d) hereof, in the aggregate amount or total value of at least fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death. Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances as provided by the Revised Penal Code shall be considered by the court. The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in favor of the State (underscoring supplied). Section 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy (underscoring supplied). On 4 April 2001 the Office of the Ombudsman filed before the Sandiganbayan eight (8) separate Informations, docketed as: (a) Crim. Case No. 26558, for violation of RA 7080, as amended by RA 7659; (b) Crim. Cases Nos. 26559 to 26562, inclusive, for violation of Secs. 3, par. (a), 3, par. (a), 3, par. (e) and 3, par. (e), of RA 3019 ( AntiGraft and Corrupt Practices Act ), respectively; (c) Crim. Case No. 26563, for violation of Sec. 7, par. (d), of RA 6713 ( The Code of Conduct and Ethical Standards for Public Officials and Employees ); (d) Crim. Case No. 26564, for Perjury (Art. 183 of The Revised Penal Code); and, (e) Crim. Case No. 26565, for Illegal Use Of An Alias (CA No. 142, as amended by RA 6085). On 11 April 2001 petitioner filed an Omnibus Motion for the remand of the case to the Ombudsman for preliminary investigation with respect to specification "d" of the charges in the Information in Crim. Case No. 26558; and, for reconsideration/reinvestigation of the offenses under specifications "a," "b," and "c" to give the accused an opportunity to file counter-affidavits and other documents necessary to prove lack of probable cause. Noticeably, the grounds raised were only lack of preliminary investigation, reconsideration/reinvestigation of offenses, and opportunity to prove lack of probable cause. The purported ambiguity of the charges and the vagueness of the law under which they are charged were never raised in that Omnibus Motion thus indicating the explicitness and comprehensibility of the Plunder Law. On 25 April 2001 the Sandiganbayan, Third Division, issued a Resolution in Crim. Case No. 26558 finding that "a probable cause for the offense of PLUNDER exists to justify the issuance of warrants for the arrest of the accused." On 25 June 2001 petitioner's motion for reconsideration was denied by the Sandiganbayan.
On 14 June 2001 petitioner moved to quash the Information in Crim. Case No. 26558 on the ground that the facts alleged therein did not constitute an indictable offense since the law on which it was based was unconstitutional for vagueness, and that the Amended Information for Plunder charged more than one (1) offense. On 21 June 2001 the Government filed its Opposition to the Motion to Quash, and five (5) days later or on 26 June 2001 petitioner submitted his Reply to the Opposition . On 9 July 2001 the Sandiganbayan denied petitioner's Motion to Quash. As concisely delineated by this Court during the oral arguments on 18 September 2001, the issues for resolution in the instant petition for certiorari are: (a) The Plunder Law is unconstitutional for being vague; (b) The Plunder Law requires less evidence for proving the predicate crimes of plunder and therefore violates the rights of the accused to due process; and, (c) Whether Plunder as defined in RA 7080 is a malum prohibitum , and if so, whether it is within the power of Congress to so classify it. Preliminarily, the whole gamut of legal concepts pertaining to the validity of legislation is predicated on the basic principle that a legislative measure is presumed to be in harmony with the Constitution. [3] Courts invariably train their sights on this fundamental rule whenever a legislative act is under a constitutional attack, for it is the postulate of constitutional adjudication. This strong predilection for constitutionality takes its bearings on the idea that it is forbidden for one branch of the government to encroach upon the duties and powers of another. Thus it has been said that the presumption is based on the deference the judicial branch accords to its coordinate branch - the legislature. If there is any reasonable basis upon which the legislation may firmly rest, the courts must assume that the legislature is ever conscious of the borders and edges of its plenary powers, and has passed the law with full knowledge of the facts and for the purpose of promoting what is right and advancing the welfare of the majority. Hence in determining whether the acts of the legislature are in tune with the fundamental law, courts should proceed with judicial restraint and act with caution and forbearance. Every intendment of the law must be adjudged by the courts in favor of its constitutionality, invalidity being a measure of last resort. In construing therefore the provisions of a statute, courts must first ascertain whether an interpretation is fairly possible to sidestep the question of constitutionality. In La Union Credit Cooperative, Inc. v. Yaranon [4] we held that as long as there is some basis for the decision of the court, the constitutionality of the challenged law will not be touched and the case will be decided on other available grounds. Yet the force of the presumption is not sufficient to catapult a fundamentally deficient law into the safe environs of constitutionality. Of course, where the law clearly and palpably transgresses the hallowed domain of the organic law, it must be struck down on sight lest the positive commands of the fundamental law be unduly eroded. Verily, the onerous task of rebutting the presumption weighs heavily on the party challenging the validity of the statute. He must demonstrate beyond any tinge of doubt that there is indeed an infringement of the constitution, for absent such a showing, there can be no finding of unconstitutionality. A doubt, even if well-founded, will hardly suffice. As tersely put by Justice Malcolm, "To doubt is to sustain. " [5] And petitioner has miserably failed in the instant case to discharge his burden and overcome the presumption of constitutionality of the Plunder Law. As it is written, the Plunder Law contains ascertainable standards and well-defined parameters which would enable the accused to determine the nature of his violation. Section 2 is sufficiently explicit in its description of the acts, conduct and conditions required or forbidden, and prescribes the elements of the crime with reasonable certainty and particularity. Thus 1. That the offender is a public officer who acts by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons; 2. That he amassed, accumulated or acquired ill-gotten wealth through a combination or series of the following overt or criminal acts: (a) through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; (b) by receiving, directly or indirectly, any commission, gift, share, percentage, kickback or any other form of pecuniary benefits from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer; (c) by the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities of Government owned or controlled corporations or their subsidiaries; (d) by obtaining, receiving or accepting directly or indirectly any
shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking; (e) by establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or (f) by taking advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines; and, 3. That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at least P50,000,000.00. As long as the law affords some comprehensible guide or rule that would inform those who are subject to it what conduct would render them liable to its penalties, its validity will be sustained. It must sufficiently guide the judge in its application; the counsel, in defending one charged with its violation; and more importantly, the accused, in identifying the realm of the proscribed conduct. Indeed, it can be understood with little difficulty that what the assailed statute punishes is the act of a public officer in amassing or accumulating ill-gotten wealth of at least P50,000,000.00 through a series or combination of acts enumerated in Sec. 1, par. (d), of the Plunder Law. In fact, the amended Information itself closely tracks the language of the law, indicating with reasonable certainty the various elements of the offense which petitioner is alleged to have committed: "The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB, Office of the Ombudsman, hereby accuses former PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES , Joseph Ejercito Estrada, a.k.a. 'ASIONG SALONGA' and a.k.a. 'JOSE VELARDE,' together with Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John DOES & Jane Does, of the crime of Plunder, defined and penalized under R.A. No. 7080, as amended by Sec. 12 of R.A. No. 7659, committed as follows: That during the period from June, 1998 to January 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES , by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION, OR INFLUENCE , did then and there willfully, unlawfully and criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY , ill-gotten wealth in the aggregate amount or TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS (P4,097,804,173.17), more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES , through ANY OR A combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows: (a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connection with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING; (b) by DIVERTING, RECEIVING , misappropriating, converting OR misusing DIRECTLY OR INDIRECTLY , for HIS OR THEIR PERSONAL gain and benefit, public funds in the amount of ONE HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or less, representing a portion of the TWO HUNDRED MILLION PESOS (P200,000,000.00) tobacco excise tax share allocated for the province of Ilocos Sur under R.A. No. 7171, by himself and/or in connivance with co-accused Charlie 'Atong' Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES & JANE DOES; (italic supplied).
(c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT , the Government Service Insurance System (GSIS) TO PURCHASE 351,878,000 SHARES OF STOCKS, MORE OR LESS , and the Social Security System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS (P1,102,965,607.50) AND MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS (P744,612,450.00), RESPECTIVELY, OR A TOTAL OF MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS (P1,847,578,057.50); AND BY COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE DOES, COMMISSIONS OR PERCENTAGES BY REASON OF SAID PURCHASES OF SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS (P189,700,000.00) MORE OR LESS, FROM THE BELLE CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME 'JOSE VELARDE ;' (d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBACKS, OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, in the amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS (P3,233,104,173.17) AND DEPOSITING THE SAME UNDER HIS ACCOUNT NAME 'JOSE VELARDE' AT THE EQUITABLE-PCI BANK ." We discern nothing in the foregoing that is vague or ambiguous - as there is obviously none - that will confuse petitioner in his defense. Although subject to proof, these factual assertions clearly show that the elements of the crime are easily understood and provide adequate contrast between the innocent and the prohibited acts. Upon such unequivocal assertions, petitioner is completely informed of the accusations against him as to enable him to prepare for an intelligent defense. Petitioner, however, bewails the failure of the law to provide for the statutory definition of the terms "combination" and "series" in the key phrase "a combination or series of overt or criminal acts" found in Sec. 1, par. (d), and Sec. 2, and the word "pattern" in Sec. 4. These omissions, according to petitioner, render the Plunder Law unconstitutional for being impermissibly vague and overbroad and deny him the right to be informed of the nature and cause of the accusation against him, hence, violative of his fundamental right to due process. The rationalization seems to us to be pure sophistry. A statute is not rendered uncertain and void merely because general terms are used therein, or because of the employment of terms without defining them; [6] much less do we have to define every word we use. Besides, there is no positive constitutional or statutory command requiring the legislature to define each and every word in an enactment. Congress is not restricted in the form of expression of its will, and its inability to so define the words employed in a statute will not necessarily result in the vagueness or ambiguity of the law so long as the legislative will is clear, or at least, can be gathered from the whole act, which is distinctly expressed in the Plunder Law. Moreover, it is a well-settled principle of legal hermeneutics that words of a statute will be interpreted in their natural, plain and ordinary acceptation and signification,[7] unless it is evident that the legislature intended a technical or special legal meaning to those words. [8] The intention of the lawmakers - who are, ordinarily, untrained philologists and lexicographers - to use statutory phraseology in such a manner is always presumed. Thus, Webster's New Collegiate Dictionary contains the following commonly accepted definition of the words "combination" and "series:" Combination - the result or product of combining; the act or process of combining. To combine is to bring into such close relationship as to obscure individual characters. Series - a number of things or events of the same class coming one after another in spatial and temporal succession. That Congress intended the words "combination" and "series" to be understood in their popular meanings is
pristinely evident from the legislative deliberations on the bill which eventually became RA 7080 or the Plunder Law: DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7 May 1991 REP. ISIDRO: I am just intrigued again by our definition of plunder. We say THROUGH A COMBINATION OR SERIES OF OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION ONE HEREOF. Now when we say combination, we actually mean to say, if there are two or more means, we mean to say that number one and two or number one and something else are included, how about a series of the same act? For example, through misappropriation, conversion, misuse, will these be included also?
REP. GARCIA: Yeah, because we say a series. REP. ISIDRO: Series. REP. GARCIA: Yeah, we include series. REP. ISIDRO: But we say we begin with a combination. REP. GARCIA: Yes. REP. ISIDRO: When we say combination, it seems that REP. GARCIA: Two. REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not twice of one enumeration. REP. GARCIA: No, no, not twice. REP. ISIDRO: Not twice? REP. GARCIA: Yes. Combination is not twice - but combination, two acts. REP. ISIDRO: So in other words, thats it. When we say combination, we mean, two different acts. It cannot be a repetition of the same act. REP. GARCIA: That be referred to series, yeah. REP. ISIDRO: No, no. Supposing one act is repeated, so there are two. REP. GARCIA: A series. REP. ISIDRO: Thats not series. Its a combination. Because when we say combination or series, we seem to say that two or more, di ba? REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That is why, I said, that is a very good suggestion because if it is only one act, it may fall under ordinary crime but we have here a combination or series of overt or criminal acts. So x x x x REP. GARCIA: Series. One after the other eh di.... SEN. TANADA: So that would fall under the term series? REP. GARCIA: Series, oo. REP. ISIDRO: Now, if it is a combination, ano, two misappropriations.... REP. GARCIA: Its not... Two misappropriations will not be combination. Series. REP. ISIDRO: So, it is not a combination? REP. GARCIA: Yes. REP. ISIDRO: When you say combination, two different? REP. GARCIA: Yes. SEN. TANADA: Two different. REP. ISIDRO: Two different acts.
REP. GARCIA: For example, ha... REP. ISIDRO: Now a series, meaning, repetition... DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989 SENATOR MACEDA: In line with our interpellations that sometimes one or maybe even two acts may already result in such a big amount, on line 25, would the Sponsor consider deleting the words a series of overt or, to read, therefore: or conspiracy COMMITTED by criminal acts such as. Remove the idea of necessitating a series. Anyway, the criminal acts are in the plural. SENATOR TANADA: That would mean a combination of two or more of the acts mentioned in this. THE PRESIDENT: Probably two or more would be.... SENATOR MACEDA: Yes, because a series implies several or many; two or more. SENATOR TANADA: Accepted, Mr. President x x x x THE PRESIDENT: If there is only one, then he has to be prosecuted under the particular crime. But when we say acts of plunder there should be, at least, two or more. SENATOR ROMULO: In other words, that is already covered by existing laws, Mr. President.
Thus when the Plunder Law speaks of "combination," it is referring to at least two (2) acts falling under different categories of enumeration provided in Sec. 1, par. (d), e.g., raids on the public treasury in Sec. 1, par. (d), subpar. (1), and fraudulent conveyance of assets belonging to the National Government under Sec. 1, par. (d), subpar. (3). On the other hand, to constitute a series" there must be two (2) or more overt or criminal acts falling under the same category of enumeration found in Sec. 1, par. (d), say, misappropriation, malversation and raids on the public treasury, all of which fall under Sec. 1, par. (d), subpar. (1). Verily, had the legislature intended a technical or distinctive meaning for "combination" and "series," it would have taken greater pains in specifically providing for it in the law. As for "pattern," we agree with the observations of the Sandiganbayan[9] that this term is sufficiently defined in Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2 x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a combination or series of overt or criminal acts enumerated in subsections (1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the law, the pattern of overt or criminal acts is directed towards a common purpose or goal which is to enable the public officer to amass, accumulate or acquire ill-gotten wealth. And thirdly, there must either be an 'overall unlawful scheme' or 'conspiracy' to achieve said common goal. As commonly understood, the term 'overall unlawful scheme' indicates a 'general plan of action or method' which the principal accused and public officer and others conniving with him follow to achieve the aforesaid common goal. In the alternative, if there is no such overall scheme or where the schemes or methods used by multiple accused vary, the overt or criminal acts must form part of a conspiracy to attain a common goal. Hence, it cannot plausibly be contended that the law does not give a fair warning and sufficient notice of what it seeks to penalize. Under the circumstances, petitioner's reliance on the "void-for-vagueness" doctrine is manifestly misplaced. The doctrine has been formulated in various ways, but is most commonly stated to the effect that a statute establishing a criminal offense must define the offense with sufficient definiteness that persons of ordinary intelligence can understand what conduct is prohibited by the statute. It can only be invoked against that specie of legislation that is utterly vague on its face, i.e., that which cannot be clarified either by a saving clause or by construction. A statute or act may be said to be vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ in its application. In such instance, the statute is repugnant to the Constitution in two (2) respects - it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle. [10] But the doctrine does not apply as against legislations that are merely couched in imprecise language but which nonetheless specify a standard though defectively phrased; or to those that are apparently ambiguous yet fairly applicable to certain types of activities. The first may be "saved"
by proper construction, while no challenge may be mounted as against the second whenever directed against such activities.[11] With more reason, the doctrine cannot be invoked where the assailed statute is clear and free from ambiguity, as in this case. The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice.[12] It must be stressed, however, that the "vagueness" doctrine merely requires a reasonable degree of certainty for the statute to be upheld - not absolute precision or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than meticulous specificity, is permissible as long as the metes and bounds of the statute are clearly delineated. An act will not be held invalid merely because it might have been more explicit in its wordings or detailed in its provisions, especially where, because of the nature of the act, it would be impossible to provide all the details in advance as in all other statutes. Moreover, we agree with, hence we adopt, the observations of Mr. Justice Vicente V. Mendoza during the deliberations of the Court that the allegations that the Plunder Law is vague and overbroad do not justify a facial review of its validity - The void-for-vagueness doctrine states that "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law."[13] The overbreadth doctrine, on the other hand, decrees that "a governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." [14] A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity." [15] The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes. This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech. The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment."[16] In Broadrick v. Oklahoma,[17] the Court ruled that "claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words" and, again, that "overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct." For this reason, it has been held that "a facial challenge to a legislative act is the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid."[18] As for the vagueness doctrine, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. "A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others."[19] In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that "one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that
impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional."[20] As has been pointed out, "vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] 'as applied' to a particular defendant."[21] Consequently, there is no basis for petitioner's claim that this Court review the Anti-Plunder Law on its face and in its entirety. Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that they might be applied to parties not before the Court whose activities are constitutionally protected.[22] It constitutes a departure from the case and controversy requirement of the Constitution and permits decisions to be made without concrete factual settings and in sterile abstract contexts. [23] But, as the U.S. Supreme Court pointed out in Younger v. Harris[24] [T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided. For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong medicine," to be employed "sparingly and only as a last resort,"[25] and is generally disfavored.[26] In determining the constitutionality of a statute, therefore, its provisions which are alleged to have been violated in a case must be examined in the light of the conduct with which the defendant is charged.[27] In light of the foregoing disquisition, it is evident that the purported ambiguity of the Plunder Law, so tenaciously claimed and argued at length by petitioner, is more imagined than real. Ambiguity, where none exists, cannot be created by dissecting parts and words in the statute to furnish support to critics who cavil at the want of scientific precision in the law. Every provision of the law should be construed in relation and with reference to every other part. To be sure, it will take more than nitpicking to overturn the well-entrenched presumption of constitutionality and validity of the Plunder Law. A fortiori , petitioner cannot feign ignorance of what the Plunder Law is all about. Being one of the Senators who voted for its passage, petitioner must be aware that the law was extensively deliberated upon by the Senate and its appropriate committees by reason of which he even registered his affirmative vote with full knowledge of its legal implications and sound constitutional anchorage. The parallel case of Gallego v. Sandiganbayan[28] must be mentioned if only to illustrate and emphasize the point that courts are loathed to declare a statute void for uncertainty unless the law itself is so imperfect and deficient in its details, and is susceptible of no reasonable construction that will support and give it effect. In that case, petitioners Gallego and Agoncillo challenged the constitutionality of Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act for being vague. Petitioners posited, among others, that the term "unwarranted" is highly imprecise and elastic with no common law meaning or settled definition by prior judicial or administrative precedents; that, for its vagueness, Sec. 3, par. (e), violates due process in that it does not give fair warning or sufficient notice of what it seeks to penalize. Petitioners further argued that the Information charged them with three (3) distinct offenses, to wit: (a) giving of "unwarranted" benefits through manifest partiality; (b) giving of "unwarranted" benefits through evident bad faith; and, (c) giving of "unwarranted" benefits through gross inexcusable negligence while in the discharge of their official function and that their right to be informed of the nature and cause of the accusation against them was violated because they were left to guess which of the three (3) offenses, if not all, they were being charged and prosecuted. In dismissing the petition, this Court held that Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act does not suffer from the constitutional defect of vagueness. The phrases "manifest partiality," "evident bad faith," and "gross and inexcusable negligence" merely describe the different modes by which the offense penalized in Sec. 3, par. (e), of the statute may be committed, and the use of all these phrases in the same Information does not mean that the indictment charges three (3) distinct offenses. The word 'unwarranted' is not uncertain. It seems lacking adequate or official support; unjustified; unauthorized
(Webster, Third International Dictionary, p. 2514); or without justification or adequate reason (Philadelphia Newspapers, Inc. v. US Dept. of Justice, C.D. Pa., 405 F. Supp. 8, 12, cited in Words and Phrases, Permanent Edition, Vol. 43-A 1978, Cumulative Annual Pocket Part, p. 19). The assailed provisions of the Anti-Graft and Corrupt Practices Act consider a corrupt practice and make unlawful the act of the public officer in: x x x or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence, x x x (Section 3 [e], Rep. Act 3019, as amended). It is not at all difficult to comprehend that what the aforequoted penal provisions penalize is the act of a public officer, in the discharge of his official, administrative or judicial functions, in giving any private party benefits, advantage or preference which is unjustified, unauthorized or without justification or adequate reason, through manifest partiality, evident bad faith or gross inexcusable negligence. In other words, this Court found that there was nothing vague or ambiguous in the use of the term "unwarranted" in Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act , which was understood in its primary and general acceptation. Consequently, in that case, petitioners' objection thereto was held inadequate to declare the section unconstitutional. On the second issue, petitioner advances the highly stretched theory that Sec. 4 of the Plunder Law circumvents the immutable obligation of the prosecution to prove beyond reasonable doubt the predicate acts constituting the crime of plunder when it requires only proof of a pattern of overt or criminal acts showing unlawful scheme or conspiracy SEC. 4. Rule of Evidence . - For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy. The running fault in this reasoning is obvious even to the simplistic mind. In a criminal prosecution for plunder, as in all other crimes, the accused always has in his favor the presumption of innocence which is guaranteed by the Bill of Rights, and unless the State succeeds in demonstrating by proof beyond reasonable doubt that culpability lies, the accused is entitled to an acquittal. [29] The use of the "reasonable doubt" standard is indispensable to command the respect and confidence of the community in the application of criminal law. It is critical that the moral force of criminal law be not diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs has confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty. This "reasonable doubt" standard has acquired such exalted stature in the realm of constitutional law as it gives life to the Due Process Clause which protects the accused against conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime with which he is charged.[30] The following exchanges between Rep. Rodolfo Albano and Rep. Pablo Garcia on this score during the deliberations in the floor of the House of Representatives are elucidating - DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA 7080, 9 October 1990
MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law that what is alleged in the information must be proven beyond reasonable doubt. If we will prove only one act and find him guilty of the other acts enumerated in the information, does that not work against the right of the accused especially so if the amount committed, say, by falsification is less than P100 million, but the totality of the crime committed is P100 million since there is malversation, bribery, falsification of public document, coercion, theft? MR. GARCIA: Mr. Speaker, not everything alleged in the information needs to be proved beyond reasonable doubt. What is required to be proved beyond reasonable doubt is every element of the crime charged. For example, Mr. Speaker, there is an enumeration of the things taken by the robber in the information three pairs of pants, pieces of jewelry. These need not be proved beyond reasonable doubt, but these will not prevent the conviction of a crime for which he
was charged just because, say, instead of 3 pairs of diamond earrings the prosecution proved two. Now, what is required to be proved beyond reasonable doubt is the element of the offense. MR. ALBANO: I am aware of that, Mr. Speaker, but considering that in the crime of plunder the totality of the amount is very important, I feel that such a series of overt criminal acts has to be taken singly. For instance, in the act of bribery, he was able to accumulate only P50,000 and in the crime of extortion, he was only able to accumulate P1 million. Now, when we add the totality of the other acts as required under this bill through the interpretation on the rule of evidence, it is just one single act, so how can we now convict him? MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an essential element of the crime, there is a need to prove that element beyond reasonable doubt. For example, one essential element of the crime is that the amount involved is P100 million. Now, in a series of defalcations and other acts of corruption in the enumeration the total amount would be P110 or P120 million, but there are certain acts that could not be proved, so, we will sum up the amounts involved in those transactions which were proved. Now, if the amount involved in these transactions, proved beyond reasonable doubt, is P100 million, then there is a crime of plunder (underscoring supplied).
It is thus plain from the foregoing that the legislature did not in any manner refashion the standard quantum of proof in the crime of plunder. The burden still remains with the prosecution to prove beyond any iota of doubt every fact or element necessary to constitute the crime. The thesis that Sec. 4 does away with proof of each and every component of the crime suffers from a dismal misconception of the import of that provision. What the prosecution needs to prove beyond reasonable doubt is only a number of acts sufficient to form a combination or series which would constitute a pattern and involving an amount of at least P50,000,000.00. There is no need to prove each and every other act alleged in the Information to have been committed by the accused in furtherance of the overall unlawful scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth. To illustrate, supposing that the accused is charged in an Information for plunder with having committed fifty (50) raids on the public treasury. The prosecution need not prove all these fifty (50) raids, it being sufficient to prove by pattern at least two (2) of the raids beyond reasonable doubt provided only that they amounted to at least P50,000,000.00.[31] A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical conclusion that "pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy" inheres in the very acts of accumulating, acquiring or amassing hidden wealth. Stated otherwise, such pattern arises where the prosecution is able to prove beyond reasonable doubt the predicate acts as defined in Sec. 1, par. (d). Pattern is merely a by-product of the proof of the predicate acts. This conclusion is consistent with reason and common sense. There would be no other explanation for a combination or series of overt or criminal acts to stash P50,000,000.00 or more, than "a scheme or conspiracy to amass, accumulate or acquire ill gotten wealth." The prosecution is therefore not required to make a deliberate and conscious effort to prove pattern as it necessarily follows with the establishment of a series or combination of the predicate acts. Relative to petitioner's contentions on the purported defect of Sec. 4 is his submission that "pattern" is "a very important element of the crime of plunder;" and that Sec. 4 is "two pronged, (as) it contains a rule of evidence and a substantive element of the crime," such that without it the accused cannot be convicted of plunder JUSTICE BELLOSILLO: In other words, cannot an accused be convicted under the Plunder Law without applying Section 4 on the Rule of Evidence if there is proof beyond reasonable doubt of the commission of the acts complained of? ATTY. AGABIN: In that case he can be convicted of individual crimes enumerated in the Revised Penal Code, but not plunder. JUSTICE BELLOSILLO: In other words, if all the elements of the crime are proved beyond reasonable doubt without applying Section 4, can you not have a conviction under the Plunder Law? ATTY. AGABIN: Not a conviction for plunder, your Honor. JUSTICE BELLOSILLO: Can you not disregard the application of Sec. 4 in convicting an accused charged for violation of the Plunder Law? ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays down a substantive element of the law x x x x
JUSTICE BELLOSILLO: What I said is - do we have to avail of Section 4 when there is proof beyond reasonable doubt on the acts charged constituting plunder? ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it contains a rule of evidence and it contains a substantive element of the crime of plunder. So, there is no way by which we can avoid Section 4. JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt insofar as the predicate crimes charged are concerned that you do not have to go that far by applying Section 4? ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a very important element of the crime of plunder and that cannot be avoided by the prosecution.[32]
We do not subscribe to petitioner's stand. Primarily, all the essential elements of plunder can be culled and understood from its definition in Sec. 2, in relation to Sec. 1, par. (d), and "pattern" is not one of them. Moreover, the epigraph and opening clause of Sec. 4 is clear and unequivocal: SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder x x x x It purports to do no more than prescribe a rule of procedure for the prosecution of a criminal case for plunder. Being a purely procedural measure, Sec. 4 does not define or establish any substantive right in favor of the accused but only operates in furtherance of a remedy. It is only a means to an end, an aid to substantive law. Indubitably, even without invoking Sec. 4, a conviction for plunder may be had, for what is crucial for the prosecution is to present sufficient evidence to engender that moral certitude exacted by the fundamental law to prove the guilt of the accused beyond reasonable doubt. Thus, even granting for the sake of argument that Sec. 4 is flawed and vitiated for the reasons advanced by petitioner, it may simply be severed from the rest of the provisions without necessarily resulting in the demise of the law; after all, the existing rules on evidence can supplant Sec. 4 more than enough. Besides, Sec. 7 of RA 7080 provides for a separability clause Sec. 7. Separability of Provisions. - If any provisions of this Act or the application thereof to any person or circumstance is held invalid, the remaining provisions of this Act and the application of such provisions to other persons or circumstances shall not be affected thereby. Implicit in the foregoing section is that to avoid the whole act from being declared invalid as a result of the nullity of some of its provisions, assuming that to be the case although it is not really so, all the provisions thereof should accordingly be treated independently of each other, especially if by doing so, the objectives of the statute can best be achieved. As regards the third issue, again we agree with Justice Mendoza that plunder is a malum in se which requires proof of criminal intent. Thus, he says, in his Concurring Opinion x x x Precisely because the constitutive crimes are mala in se the element of mens rea must be proven in a prosecution for plunder. It is noteworthy that the amended information alleges that the crime of plunder was committed "willfully, unlawfully and criminally." It thus alleges guilty knowledge on the part of petitioner. In support of his contention that the statute eliminates the requirement of mens rea and that is the reason he claims the statute is void, petitioner cites the following remarks of Senator Taada made during the deliberation on S.B. No. 733: SENATOR TAADA . . . And the evidence that will be required to convict him would not be evidence for each and every individual criminal act but only evidence sufficient to establish the conspiracy or scheme to commit this crime of plunder.[33] However, Senator Taada was discussing 4 as shown by the succeeding portion of the transcript quoted by petitioner: SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is contained in Section 4, Rule of Evidence, which, in the Gentleman's view, would provide for a speedier and faster process of attending to this kind of cases? SENATOR TAADA: Yes, Mr. President . . .[34]
Senator Taada was only saying that where the charge is conspiracy to commit plunder, the prosecution need not prove each and every criminal act done to further the scheme or conspiracy, it being enough if it proves beyond reasonable doubt a pattern of overt or ciminal acts indicative of the overall unlawful scheme or conspiracy. As far as the acts constituting the pattern are concerned, however, the elements of the crime must be proved and the requisite mens rea must be shown. Indeed, 2 provides that Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court. The application of mitigating and extenuating circumstances in the Revised Penal Code to prosecutions under the AntiPlunder Law indicates quite clearly that mens rea is an element of plunder since the degree of responsibility of the offender is determined by his criminal intent. It is true that 2 refers to "any person who participates with the said public officer in the commission of an offense contributing to the crime of plunder." There is no reason to believe, however, that it does not apply as well to the public officer as principal in the crime. As Justice Holmes said: "We agree to all the generalities about not supplying criminal laws with what they omit, but there is no canon against using common sense in construing laws as saying what they obviously mean." [35] Finally, any doubt as to whether the crime of plunder is a malum in se must be deemed to have been resolved in the affirmative by the decision of Congress in 1993 to include it among the heinous crimes punishable by reclusion perpetua to death. Other heinous crimes are punished with death as a straight penalty in R.A. No. 7659. Referring to these groups of heinous crimes, this Court held in People v. Echegaray : [36] The evil of a crime may take various forms. There are crimes that are, by their very nature, despicable, either because life was callously taken or the victim is treated like an animal and utterly dehumanized as to completely disrupt the normal course of his or her growth as a human being . . . . Seen in this light, the capital crimes of kidnapping and serious illegal detention for ransom resulting in the death of the victim or the victim is raped, tortured, or subjected to dehumanizing acts; destructive arson resulting in death; and drug offenses involving minors or resulting in the death of the victim in the case of other crimes; as well as murder, rape, parricide, infanticide, kidnapping and serious illegal detention, where the victim is detained for more than three days or serious physical injuries were inflicted on the victim or threats to kill him were made or the victim is a minor, robbery with homicide, rape or intentional mutilation, destructive arson, and carnapping where the owner, driver or occupant of the carnapped vehicle is killed or raped, which are penalized by reclusion perpetua to death, are clearly heinous by their very nature. There are crimes, however, in which the abomination lies in the significance and implications of the subject criminal acts in the scheme of the larger socio-political and economic context in which the state finds itself to be struggling to develop and provide for its poor and underprivileged masses. Reeling from decades of corrupt tyrannical rule that bankrupted the government and impoverished the population, the Philippine Government must muster the political will to dismantle the culture of corruption, dishonesty, greed and syndicated criminality that so deeply entrenched itself in the structures of society and the psyche of the populace. [With the government] terribly lacking the money to provide even the most basic services to its people, any form of misappropriation or misapplication of government funds translates to an actual threat to the very existence of government, and in turn, the very survival of the people it governs over. Viewed in this context, no less heinous are the effects and repercussions of crimes like qualified bribery, destructive arson resulting in death, and drug offenses involving government officials, employees or officers, that their perpetrators must not be allowed to cause further destruction and damage to society. The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is a malum in se . For when the acts punished are inherently immoral or inherently wrong, they are mala in se [37] and it does not matter that such acts are punished in a special law, especially since in the case of plunder the predicate crimes are mainly mala in se . Indeed, it would be absurd to treat prosecutions for plunder as though they are mere prosecutions for violations of
the Bouncing Check Law (B.P. Blg. 22) or of an ordinance against jaywalking, without regard to the inherent wrongness of the acts. To clinch, petitioner likewise assails the validity of RA 7659, the amendatory law of RA 7080, on constitutional grounds. Suffice it to say however that it is now too late in the day for him to resurrect this long dead issue, the same having been eternally consigned by People v. Echegaray [38] to the archives of jurisprudential history. The declaration of this Court therein that RA 7659 is constitutionally valid stands as a declaration of the State, and becomes, by necessary effect, assimilated in the Constitution now as an integral part of it. Our nation has been racked by scandals of corruption and obscene profligacy of officials in high places which have shaken its very foundation. The anatomy of graft and corruption has become more elaborate in the corridors of time as unscrupulous people relentlessly contrive more and more ingenious ways to bilk the coffers of the government. Drastic and radical measures are imperative to fight the increasingly sophisticated, extraordinarily methodical and economically catastrophic looting of the national treasury. Such is the Plunder Law, especially designed to disentangle those ghastly tissues of grand-scale corruption which, if left unchecked, will spread like a malignant tumor and ultimately consume the moral and institutional fiber of our nation. The Plunder Law, indeed, is a living testament to the will of the legislature to ultimately eradicate this scourge and thus secure society against the avarice and other venalities in public office. These are times that try men's souls. In the checkered history of this nation, few issues of national importance can equal the amount of interest and passion generated by petitioner's ignominious fall from the highest office, and his eventual prosecution and trial under a virginal statute. This continuing saga has driven a wedge of dissension among our people that may linger for a long time. Only by responding to the clarion call for patriotism, to rise above factionalism and prejudices, shall we emerge triumphant in the midst of ferment. PREMISES CONSIDERED, this Court holds that RA 7080 otherwise known as the Plunder Law, as amended by RA 7659, is CONSTITUTIONAL. Consequently, the petition to declare the law unconstitutional is DISMISSED for lack of merit. SO ORDERED. Buena, and De Leon, Jr., JJ., concur. Davide, Jr. C.J., Melo, Quisumbing, JJ., join concurring opinion of J. Mendoza. Puno, Vitug, JJ., concurred and joins J. Mendoza's concurring opinion. Kapunan, Pardo, Sandoval-Gutierrez, Ynares-Santiago, JJ., see dissenting opinion. Mendoza, J., please see concurring opinion. Panganiban J., please see separate concurring opinion. Carpio, J., no part. Was one of the complainants before Ombudsman.
[1] Approved 12 July 1991 and took effect 8 October 1991. [2] Approved 13 December 1993 and took effect 31 December 1993. [3] Lim v. Pacquing, et al., G.R. No. 115044, 27 January 1995, 240 SCRA 644. [4] G.R. No. 87001, 4 December 1989, 179 SCRA 828. [5] Yu Cong Eng v. Trinidad, 47 Phil. 385, 414 (1925). [6] 82 C.J.S. 68, p. 113; People v. Ring, 70 P.2d 281, 26 Cal. App. 2d Supp. 768. [7] Mustang Lumber, Inc. v. Court of Appeals, G.R. No. 104988, 18 June 1996, 257 SCRA 430, 448. [8] PLDT v. Eastern Telecommunications Phil., Inc., G.R. No. 943774, 27 August 1992, 213 SCRA 16, 26. [9] Resolution of 9 July 2001. [10] See People v. Nazario, No. L-44143, 31 August 1988, 165 SCRA 186, 195-196.
[11] Ibid. [12] State v. Hill, 189 Kan 403, 369 P2d 365, 91 ALR2d 750. [13] Connally v. General Constr. Co., 269 U.S. 385, 391, 70 L. Ed. 328 (1926) cited in Ermita-Malate Hotel and Motel Operators Ass'n. v. City Mayor, 20 SCRA 849, 867 (1967). [14] NAACP v. Alabama, 377 U.S. 288, 307, 12, 2 L. Ed 325, 338 (1958); Shelton v. Tucker 364 U.S. 479, 5 L. Ed. 2d 231 (1960). [15] Gooding v. Wilson, 405 U.S. 518, 521, 31 L. Ed. 2d 408, 413 (1972) (internal quotation marks omitted). [16] United States v. Salerno, 481 U.S. 739, 745 95 L. Ed 2d 697, 707 (1987); see also People v. De la Piedra, G.R. No. 121777, 24 January 2001. [17] 413 U.S. 601, 612-613, 37 L. Ed 2d 830, 840-841 (1973). [18] United States v. Salerno, supra. [19] Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 71 L. Ed. 2d 362, 369 (1982). [20] United States v. Raines, 362 U.S. 17, 21, 4 L. Ed. 2d 524, 529 (1960). The paradigmatic case is Yazoo & Mississippi Valley RR. v. Jackson Vinegar Co., 226 U.S. 217, 57 L. Ed. 193 (1912). [21] G. Gunther & K. Sullivan, Constitutional Law 1299 (2001). [22] Id. at 1328. See also Richard H. Fallon, Jr., As Applied and Facial Challenges, 113 Harv. L. Rev. 1321 (2000) arguing that, in an important sense, as applied challenges are the basic building blocks of constitutional adjudication and that determinations that statutes are facially invalid properly occur only as logical outgrowths of ruling on whether statutes may be applied to particular litigants on particular facts. [23] Constitution, Art. VIII, 1 and 5. Compare Angara v. Electoral Commission, 63 Phil. 139, 158 (1936); "[T]he power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to be constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities." [24] 401 U.S. 37, 52-53, 27 L. Ed. 2d 669, 680 (1971). Accord, United States v. Raines, 362 U.S. 17, 4 L. Ed. 2d 524 (1960); Board of Trustees, State Univ. of N.Y. v. Fox, 492 U.S. 469, 106 L. Ed. 2d 388 (1989). [25] Broadrick v. Oklahoma, 413 U.S. at 613, 37 L. Ed. 2d at 841; National Endowment for the Arts v. Finley, 524 U.S. 569, 580 (1998). [26] FW/PBS, Inc. v. City of Dallas, 493 U.S. 223, 107 L. Ed. 2d 603 (1990); Cruz v. Secretary of Environment and Natural Resources, G.R. No. 135385, 6 December 2000 (Mendoza, J., Separate Opinion). [27] United States v. National Dairy Prod. Corp., 372 U.S. 29, 32-33, 9 L. Ed. 2d 561, 565-6 (1963). [28] G.R. No. 57841, 30 July 1982, 115 SCRA 793. [29] People v. Ganguso, G.R. No. 115430, 23 November 1995, 250 SCRA 268, 274-275. [30] People v. Garcia, G.R. No. 94187, 4 November 1992, 215 SCRA 349, 360. [31] Then Senate President Jovito R. Salonga construed in brief the provision, thuswise: If there are lets say 150 crimes all in all, criminal acts, whether bribery, misappropriation, malversation, extortion, you need not prove all those beyond reasonable doubt. If you can prove by pattern, lets say 10, but each must be proved beyond reasonable doubt, you do not have to prove 150 crimes. Thats the meaning of this (Deliberations of Committee on Constitutional Amendments and Revision of Laws, 15 November 1988, cited in the Sandiganbayan Resolution of 9 July 2001). [32] TSN, 18 September 2001, pp. 115-121. [33] 4 Record of the Senate 1316, 5 June 1989. [34] Ibid. [35] Roschen v. Ward, 279 U.S. 337, 339, 73 L.Ed. 722, 728 (1929). [36] 267 SCRA 682, 721-2 (1997) (emphasis added).
[37] Black's Law Dictionary 959 (1990); Lozano v. Martinez, 146 SCRA 324, 338 (1986). [38] G.R. No. 117472, 7 February 1997, 267 SCRA 682.
SYLLABI/SYNOPSIS
THIRD DIVISION
[G.R. No. 131124. March 29, 1999]
OSMUNDO G. UMALI, petitioner, vs. EXECUTIVE SECRETARY TEOFISTO T. GUINGONA JR., CHAIRMAN, PRESIDENTIAL COMMISSION AGAINST GRAFT AND CORRUPTION, THE SECRETARY OF FINANCE, AND THE COMMISSIONER OF INTERNAL REVENUE, respondents. RESOLUTION
PURISIMA, J .:
At bar is a petition for review under Rule 45 of the Revised Rules of Court assailing the decision of the Court of Appeals dated April 8, 1997, which set aside the Amended Decision dated December 13, 1995 of the Regional Trial Court of Makati in Civil Case No. 94-3079, and dismissed the petition for Certiorari, Prohibition and Injunction brought by petitioner against the respondents. The antecedent facts leading to the filing of the present petition are as follows: On October 27, 1993, petitioner Osmundo Umali was appointed Regional Director of the Bureau of Internal Revenue by the then President Fidel V. Ramos. He was assigned in Manila, from November 29, 1993 to March 15, 1994, and in Makati, from March 16, 1994 to August 4, 1994. On August 1, 1994, President Ramos received a confidential memorandum against the petitioner for alleged violations of internal revenue laws, rules and regulations during his incumbency as Regional Director, more particularly the following malfeasance, misfeasance and nonfeasance, to wit: A. Issuance of Letters of Authority (LAs) to investigate taxpayers despite the ban on investigations as ordered in Revenue memorandum Order No. 31-93. In numerous cases, revenue officers whose names appeared in the LAs as investigating officers were unaware that such LAs were issued to them. He issued LAs to favored revenue examiners such as his Secretary, Natividad Feliciano; B. Termination of tax cases without the submission of the required investigation reports, thus exempting the same from examination and review; C. Terminated cases with reports were submitted directly to and approved by respondent Umali without being reviewed by the Assessment Division, thus eliminating the check and balance mechanism designed to guard against abuses or errors; D. Unlawful issuance of LAs to taxpayers who were thereafter convinced to avail of the BIRs compromise and abatement program under RMOs 45093 and 54-93, for which the taxpayers were made, for a monetary consideration, to pay smaller amounts in lieu of being investigated; E. Despite the devolution of the authority to issue LAs from Regional Directors to the Revenue District Officers under RMO 26-94, dated April 14, 1994, respondent Umali continued to issue antedated LAs in absolute defiance of the aforesaid issuance, using old LAs requisitioned by him when still Regional Director of San Pablo Region. In one instance, he issued a termination letter bearing the San Pablo Region letterhead even when he was already
Makati Regional Director; and F. In his attempt to cover up his tracks and to muddle the real issue of his violations of the ban in the issuance of LAs and basic revenue rules and regulations, respondent enlisted the support of other regional directors for the purpose of questioning particularly the devolution/centralization of the functions of the Bureau. [1] On August 2, 1994, upon receipt of the said confidential memorandum, former President Ramos authorized the issuance of an Order for the preventive suspension of Umali and immediately referred the Complaint against the latter to the Presidential Commission on Anti-Graft and Corruption (PCAGC), for investigation. Petitioner was duly informed of the charges against him. In its Order, dated August 9, 1994, the PCAGC directed him to send in his answer, copies of his Statement of Assets and Liabilities for the past three years (3), and Personal Data Sheet. Initial hearing was set on August 25, 1994, at 2:00 p.m., at the PCAGC Office. On August 23, the petitioner filed his required Answer. On August 25, 1994, petitioner appeared with his lawyer, Atty. Bienvenido Santiago before the PCAGC. Counsel for the Commissioner of Internal Revenue submitted a Progress Report, dated August 24, 1994, on the audit conducted on the petitioner. As prayed for, petitioner and his lawyer were granted five (5) days to file a supplemental answer. The hearing was reset to August 30, 1994, during which the parties were given a chance to ask clarificatory questions. Petitioner and his counsel did not ask any question on the genuineness and authenticity of the documents attached as annexes to the Complaint. Thereafter, the parties agreed to submit the case for resolution upon the presentation of their respective memoranda. Petitioner filed his Memorandum on September 6, 1994 while the BIR sent in its Memorandum on the following day. After evaluating the evidence on record, the PCAGC issued its Resolution of September 23, 1994, finding a prima facie evidence to support six (6) of the twelve (12 ) charges against petitioner, to wit: 1. On the First Charge Respondent issued 176 Letters of Authority in gross disobedience to and in violation of RMOs 31-93 and 27-94. xxx xxx xxx 3. On the Third Charge There is sufficient evidence of a prima facie case of falsification of official documents as defined in Art. 171, par. 2 and 4 of the Revised Penal Code, against the respondent for the issuance of 9 LAs and who did not investigate the tax cases, each LA being a separate offense. xxx xxx xxx 7. On the Seventh Charge There is sufficient evidence of a prima facie case of falsification of official documents against respondent for antedating the four LAs cited in the charge, each LA constituting a separate offense, under Art. 171 (4) of the Revised Penal Code. 8. On the Ninth (sic) Charge There is sufficient evidence to support a prima facie case of falsification of an official document under Art. 171 (4) of the Revised Penal Code against the respondent in the tax case of Richfield International Corp., Inc. for indicating a false date on the letter of termination he issued to the company. There is, however, insufficient evidence against respondent in the other tax case of Jayson Auto Supply Co. 9. On the Ninth Charge There is sufficient evidence of a prima facie case of falsification of official documents in each of the two tax cases cited in his charge, under the provisions of Art. 171 (4) of the Revised Penal Code, as the dates of Termination Letters were false. 10. On the Tenth Charge Respondent, by his own admission, violated RMO 36-87 requiring turn over of all properties and forms to his successor upon transfer a head of office, and RMO 27-94 requiring the surrender of all unused old forms of Letters of Authority. The Commission noted the defiant attitude of respondent, as expressed in
his admission, towards valid and legal orders of the BIR, and his propensity to defy and ignore such orders and regulations. [2] xxx xxx xxx On October 6, 1994, acting upon the recommendation of the PCAGC, then President Ramos issued Administrative Order No. 152 dismissing petitioner from the service, with forfeiture of retirement and all benefits under the law. On October 24, 1994, the petitioner moved for reconsideration of his dismissal but the Office of the President denied the motion for reconsideration on November 28, 1994. On December 1, 1994, petitioner brought a Petition for Certiorari, Prohibition and Injunction, docketed as Civil Case No. 94-3079 before the Regional Trial Court of Makati, alleging, among others: I. That the petitioner was suspended and dismissed from the service in violation of his constitutional right to due process of law; and II. That the constitutional right of the petitioner to security of tenure was violated by the respondents. The case was raffled off to Branch 133 of the Regional Trial Court in Makati, which issued on December 2, 1994, a Temporary Restraining Order, enjoining the respondents and/or their representatives from enforcing Administrative Order No. 152, and directing the parties to observe the status quo until further orders from the said Court. On December 23, 1994, the said Regional Trial Court dismissed the petition. On January 10, 1995, the petitioner presented a motion for reconsideration, this time, theorizing that the Presidential Commission on Anti-Graft and Corruption is an unconstitutional office without jurisdiction to conduct the investigation against him. Respondents submitted their Opposition/Comment to the Motion for Reconsideration. Then, the petitioner filed a Motion to Inhibit Judge Inoturan on the ground that the latter was formerly a Solicitor in the Office of the Solicitor General and could not be expected to decide the case with utmost impartiality. The case was then re-raffled to Hon. Teofilo L. Guadiz, Jr. who, on December 13, 1995, handed down an Amended Decision, granting the petition and practically reversing the original Decision. Not satisfied with the Amended Decision of Judge Guadiz, Jr., the respondents appealed therefrom to the Court of Appeals. On April 8, 1997, the Ninth Division of the Court of Appeals [3] promulgated its decision, reversing the Amended Decision of the trial court of origin, and dismissing Civil Case No. 94-3079. Petitioners motion for reconsideration met the same fate. It was denied on October 28, 1997. Undaunted, petitioner found his way to this Court via the petition under scrutiny. In the interim that the administrative and civil cases against the petitioner were pending, the criminal aspect of such cases was referred to the Office of the Ombudsman for investigation. On July 25, 1995, after conducting the investigation, Ombudsman Investigators Merba Waga and Arnulfo Pelagio issued a Resolution finding a probable cause and recommending the institution in the courts of proper Jurisdiction criminal cases for Falsification of Public Documents (13 counts) and Open Disobedience (2 counts) against the petitioner. However, acting upon petitioners motion for reconsideration Special Prosecution Officer II Lemuel M. De Guzman set aside the said Resolution of July 25, 1995, and in lieu thereof, dismissed the charges against petitioner, in the Order dated November 5, 1996, which was approved by Ombudsman Aniano Desierto. Accordingly, all the informations against the petitioner previously sent to the Office of the City Prosecutor, were recalled. On August 10, 1998, Commissioner Beethoven L. Rualo of the Bureau of Internal Revenue sent a letter to the Solicitor General informing the latter that the Bureau of Internal Revenue is no longer interested in pursuing the case against Atty. Osmundo Umali on the basis of the comment and recommendation submitted by the Legal Department of the BIR.[4]
Petitioner raised the issues: 1. WHETHER ADMINISTRATIVE ORDER NO. 152 VIOLATED PETITIONERS RIGHT TO SECURITY OF TENURE; 2. WHETHER PETITIONER WAS DENIED DUE PROCESS IN THE ISSUANCE OF ADMINISTRATIVE ORDER NO. 152; 3. WHETHER THE PCAGC IS A VALIDLY CONSTITUTED GOVERNMENT AGENCY AND WHETHER PETITIONER CAN RAISE THE ISSUE OF ITS CONSTITUTIONALITY BELATEDLY IN ITS MOTION FOR RECONSIDERATION OF THE TRIAL COURTS DECISION; AND 5. WHETHER IN THE LIGHT OF THE OMBUDSMAN RESOLUTION DISMISSING THE CHARGES AGAINST PETITIONER, THERE IS STILL BASIS FOR PETITIONERS DISMISSAL WITH FORFEITURE OF BENEFITS AS RULED IN ADMINISTRATIVE ORDER NO. 152. Petitioner contends that as Regional Director of the Bureau of Internal Revenue he belongs to the Career Executive Service. Although a presidential appointee under the direct authority of the President to discipline, he is a career executive service officer (CESO) with tenurial protection, who can only be removed for cause. In support of this theory, petitioner cited the case of Larin vs. Executive Secretary [5] where the court held: xxx petitioner is a presidential appointee who belongs to the career service of the Civil Service. Being a presidential appointee, he comes under the direct disciplining authority of the President. This is in line with the settled principle that the power to remove is inherent in the power to appoint conferred to the President by Section 16, Article VII of the constitution. xxx This power of removal, however, is not an absolute one which accepts no reservation. It must be pointed out that petitioner is a career service officer. xxx Specifically, Section 36 of P.D. No. 807, as amended, otherwise known as Civil Service Decree of the Philippines, is emphatic that career service officers and employees who enjoy security of tenure may be removed only for any of the causes enumerated in said law. In other words, the fact that petitioner is a presidential appointee does not give the appointing authority the license to remove him at will or at his pleasure for it is an admitted fact that he is likewise a career service officer who under the law is the recipient of tenurial protection, thus, may only be removed for cause and in accordance with procedural due process. Petitioner maintains that as a career executive service officer, he can only be removed for cause and under the Administrative Code of 1987,[6] loss of confidence is not one of the legal causes or grounds for removal. Consequently, his dismissal from office on the ground of loss of confidence violated his right to security of tenure; petitioner theorized. After a careful study, we are of the irresistible conclusion that the Court of Appeals ruled correctly on the first three issues. To be sure, petitioner was not denied the right to due process before the PCAGC. Records show that the petitioner filed his answer and other pleadings with respect to his alleged violation of internal revenue laws and regulations, and he attended the hearings before the investigatory body. It is thus decisively clear that his protestation of non-observance of due process is devoid of any factual or legal basis. Neither can it be said that there was a violation of what petitioner asserts as his security of tenure. According to petitioner, as a Regional Director of Bureau of Internal Revenue, he is a CESO eligible entitled to security of tenure. However, petitioners claim of CESO eligibility is anemic of evidentiary support. It was incumbent upon him to prove that he is a CESO eligible but unfortunately, he failed to adduce sufficient evidence on the matter. His failure to do so is fatal. As regards the issue of constitutionality of the PCAGC, it was only posed by petitioner in his motion for reconsideration before the Regional Trial Court of Makati. It was certainly too late to raise the said issue for the first time at such late stage of the proceedings below. How about the fourth issue, whether in view of the Resolution of the Ombudsman dismissing the charges against petitioner, there still remains a basis for the latter dismissal with forfeiture of benefits, as directed in Administrative Order No. 152?
It is worthy to note that in the case under consideration, the administrative action against the petitioner was taken prior to the institution of the criminal case. The charges included in Administrative Order No. 152 were based on the results of investigation conducted by the PCAGC and not on the criminal charges before the Ombudsman. In sum, the petition is dismissable on the ground that the issues posited by the petitioner do not constitute a valid legal basis for overturning the finding and conclusion arrived at by the Court of Appeals. However, taking into account the antecedent facts and circumstances aforementioned, the Court, in the exercise of its equity powers, has decided to consider the dismissal of the charges against petitioner before the Ombudsman, the succinct and unmistakable manifestation by the Commissioner of the Bureau of Internal Revenue that his office is no longer interested in pursuing the case, and the position taken by the Solicitor General,[7] that there is no more basis for Administrative Order No. 152, as effective and substantive supervening events that cannot be overlooked. WHEREFORE, in light of the foregoing effective and substantive supervening events, and in the exercise of its equity powers, the Court hereby GRANTS the petition. Accordingly, Administrative Order No. 152 is considered LIFTED, and petitioner can be allowed to retire with full benefits. No pronouncement as to costs. SO ORDERED. Gonzaga-Reyes, J., concur. Romero, Vitug, and Panganiban, JJ., in the result.
[1] Administrative Order No. 152, Rollo , pp. 141-142. [2] PCAGC Resolution, Rollo , pp. 186-189. [3] Associate Justice Ramon Mabutas Jr., ponente ; Associate Justice Jorge Imperial, Chairman; Associate Justice Portia Alio-Hormachuelos, member. [4] Rollo , p. 534. [5] 280 SCRA 713. [6] Section 46, Book V, Title I, Subtitle A, Revised Administrative Code. [7] Rollo , p. 409.
EN BANC
[G.R. No. 152895. June 15, 2004]
OFELIA V. ARCETA, petitioner, vs. The Honorable MA. CELESTINA C. MANGROBANG, Presiding Judge, Branch 54, Metropolitan Trial Court of Navotas, Metro Manila, respondent.
[G.R. No. 153151. June 15, 2004]
GLORIA S. DY, petitioner, vs. The Honorable EDWIN B. RAMIZO, Presiding Judge, Branch 53, Metropolitan Trial Court of Caloocan City, respondent. RESOLUTION
QUISUMBING, J .:
For resolution are two consolidated petitions under Rule 65 of the Rules of Court, for certiorari , prohibition and mandamus , with prayers for a temporary restraining order. Both assail the constitutionality of the Bouncing Checks Law, also known as Batas Pambansa Bilang 22. In G.R. No. 152895, petitioner Ofelia V. Arceta prays that we order the Metropolitan Trial Court (MeTC) of Navotas, Metro Manila, Branch 54, to cease and desist from hearing Criminal Case No. 1599-CR for violation of B.P. Blg. 22, and then dismiss the case against her. In G.R. No. 153151, petitioner Gloria S. Dy also prays that this Court order the MeTC of Caloocan City to cease and desist from proceeding with Criminal Case No. 212183, and subsequently dismiss the case against her. In fine, however, we find that what both petitioners seek is that the Court should revisit and abandon the doctrine laid down in Lozano v. Martinez ,
[2]
[1]
which upheld the validity of the Bouncing Checks Law.
The facts of these cases are not in dispute. 1. G.R. No. 152895 The City Prosecutor of Navotas, Metro Manila charged Ofelia V. Arceta with violating B.P. Blg. 22 in an Information, which was docketed as Criminal Case No. 1599-CR. The accusatory portion of said Information reads: That on or about the 16th day of September 1998, in Navotas, Metro Manila, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously make or draw and issue to OSCAR R. CASTRO, to apply on account or for value the check described below: Check No : 00082270 Drawn Against : The Region Bank
In the Amount of : P740,000.00 Date : December 21, 1998 Payable to : Cash said accused well-knowing that at the time of issue Ofelia V. Arceta did not have sufficient funds or credit with the drawee bank for the payment, which check when presented for payment within ninety (90) days from the date thereof was subsequently dishonored by the drawee bank for reason DRAWN AGAINST INSUFFICIENT FUNDS, and despite receipt of notice of such dishonor, the accused failed to pay said payee with the face amount of said check or to make arrangement for full payment thereof within five (5) banking days after receiving notice. CONTRARY TO LAW.
[3]
Arceta did not move to have the charge against her dismissed or the Information quashed on the ground that B.P. Blg. 22 was unconstitutional. She reasoned out that with the Lozano doctrine still in place, such a move would be an exercise in futility for it was highly unlikely that the trial court would grant her motion and thus go against prevailing jurisprudence. On October 21, 2002, Arceta was arraigned and pleaded not guilty to the charge. However, she manifested that her arraignment should be without prejudice to the present petition or to any other actions she would take to suspend proceedings in the trial court. Arceta then filed the instant petition. 2. G.R. No. 153151 The Office of the City Prosecutor of Caloocan filed a charge sheet against Gloria S. Dy for violation of the Bouncing Checks Law, docketed by the MeTC of Caloocan City as Criminal Case No. 212183. Dy allegedly committed the offense in this wise: That on or about the month of January 2000 in Caloocan City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously make and issue Check No. 0000329230 drawn against PRUDENTIAL BANK in the amount of P2,500,000.00 dated January 19, 2000 to apply for value in favor of ANITA CHUA well knowing at the time of issue that she has no sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment which check was subsequently dishonored for the reason ACCOUNT CLOSED and with intent to defraud failed and still fails to pay the said complainant the amount of P2,500,000.00 despite receipt of notice from the drawee bank that said check has been dishonored and had not been paid. Contrary to Law.
[5] [4]
Like Arceta, Dy made no move to dismiss the charges against her on the ground that B.P. Blg. 22 was unconstitutional. Dy likewise believed that any move on her part to quash the indictment or to dismiss the charges on said ground would fail in view of the Lozano ruling. Instead, she filed a petition with this Court invoking its power of judicial review to have the said law voided for Constitutional infirmity. Both Arceta and Dy raise the following identical issues for our resolution: [a] Does section 1 really penalize the act of issuing a check subsequently dishonored by the bank for lack of funds? [b] What is the effect if the dishonored check is not paid pursuant to section 2 of BP 22? [c] What is the effect if it is so paid?
[d] Does section 2 make BP 22 a debt collecting law under threat of imprisonment? [e] Does BP 22 violate the constitutional proscription against imprisonment for non-payment of debt? [f] Is BP 22 a valid exercise of the police power of the state?
[6]
After minute scrutiny of petitioners submissions, we find that the basic issue being raised in these special civil actions for certiorari, prohibition, and mandamus concern the unconstitutionality or invalidity of B.P. Blg. 22. Otherwise put, the petitions constitute an oblique attack on the constitutionality of the Bouncing Checks Law, a matter already passed upon by the Court through Justice (later Chief Justice) Pedro Yap almost two decades ago. Petitioners add, however, among the pertinent issues one based on the observable but worrisome transformation of certain metropolitan trial courts into seeming collection agencies of creditors whose complaints now clog the court dockets. But let us return to basics. When the issue of unconstitutionality of a legislative act is raised, it is the established doctrine that the Court may exercise its power of judicial review only if the following requisites are present: (1) an actual and appropriate case and controversy exists; (2) a personal and substantial interest of the party raising the constitutional question; (3) the exercise of judicial review is pleaded at the earliest opportunity; and (4) the constitutional question raised is the very lis mota of the case. Only when these requisites are satisfied may the Court assume jurisdiction over a question of unconstitutionality or invalidity of an act of Congress. With due regard to counsels spirited advocacy in both cases, we are unable to agree that the abovecited requisites have been adequately met. Perusal of these petitions reveals that they are primarily anchored on Rule 65, Section 1 of the 1997 Rules of Civil Procedure. In a special civil action of certiorari the only question that may be raised is whether or not the respondent has acted without or in excess of jurisdiction or with grave abuse of discretion. Yet nowhere in these petitions is there any allegation that the respondent judges acted with grave abuse of discretion amounting to lack or excess of jurisdiction. A special civil action for certiorari will prosper only if a grave abuse of discretion is manifested.
[10] [9] [8] [7]
Noteworthy, the instant petitions are conspicuously devoid of any attachments or annexes in the form of a copy of an order, decision, or resolution issued by the respondent judges so as to place them understandably within the ambit of Rule 65. What are appended to the petitions are only copies of the Informations in the respective cases, nothing else. Evidently, these petitions for a writ of certiorari, prohibition and mandamus do not qualify as the actual and appropriate cases contemplated by the rules as the first requisite for the exercise of this Courts power of judicial review. For as the petitions clearly show on their faces petitioners have not come to us with sufficient cause of action. Instead, it appears to us that herein petitioners have placed the cart before the horse, figuratively speaking. Simply put, they have ignored the hierarchy of courts outlined in Rule 65, Section 4 of the 1997 Rules of Civil Procedure. Seeking judicial review at the earliest opportunity does not mean immediately elevating the matter to this Court. Earliest opportunity means that the question of unconstitutionality of the act in question should have been immediately raised in the proceedings in the court below. Thus, the petitioners should have moved to quash the separate indictments or moved to dismiss the cases in the proceedings in the trial courts on the ground of unconstitutionality of B.P. Blg. 22. But the records show that petitioners failed to initiate such moves in the proceedings below. Needless to emphasize, this Court could not entertain questions on the invalidity of a statute where that issue was not specifically raised, insisted upon, and adequately argued. Taking into account the early stage of the trial proceedings below, the instant petitions are patently premature. Nor do we find the constitutional question herein raised to be the very lis mota presented in the controversy below. Every law has in its favor the presumption of constitutionality, and to justify its
[12] [11]
nullification, there must be a clear and unequivocal breach of the Constitution, and not one that is doubtful, speculative or argumentative. We have examined the contentions of the petitioners carefully; but they still have to persuade us that B.P. Blg. 22 by itself or in its implementation transgressed a provision of the Constitution. Even the thesis of petitioner Dy that the present economic and financial crisis should be a basis to declare the Bouncing Checks Law constitutionally infirm deserves but scant consideration. As we stressed in Lozano , it is precisely during trying times that there exists a most compelling reason to strengthen faith and confidence in the financial system and any practice tending to destroy confidence in checks as currency substitutes should be deterred, to prevent havoc in the trading and financial communities. Further, while indeed the metropolitan trial courts may be burdened immensely by bouncing checks cases now, that fact is immaterial to the alleged invalidity of the law being assailed. The solution to the clogging of dockets in lower courts lies elsewhere. WHEREFORE, the instant petitions are DISMISSED for utter lack of merit. SO ORDERED. Davide, Jr., C.J., Puno, Vitug, Panganiban, Ynares-Santiago, Sandoval-Gutierrez, Carpio, AustriaMartinez, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur. Corona, J., on official leave.
[1] [2] [3] [4] [5] [6] [7] [13]
Per Resolution of the Court En Banc dated 15 October 2002. No. L-63419, 18 December 1986, 146 SCRA 323. Rollo , G.R. No. 152895, p. 61. Id. at 76. Rollo , G.R. No. 153151, p. 58. Rollo , G.R. No. 152895, pp. 8-9; Rollo, G.R. No. 153151, p. 8. Philippine Constitution Association v. Enriquez, G.R. No. 113105, 19 August 1994, 235 SCRA 506, 518-519 citing Luz Farms v. Secretary of the Department of Agrarian Reform, G.R. No. 86889, 4 December 1990, 192 SCRA 51, 58; Dumlao v. COMELEC, No. L-52245, 22 January 1980, 95 SCRA 392, 400; People v. Vera, No. 45685, 16 November 1937, 65 Phil. 56, 86-89. SECTION 1. Petition for certiorari . When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.
[8]
The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of Section 3, Rule 46.
[9]
II FERIA AND NOCHE, CIVIL PROCEDURE ANNOTATED 456 (2001 Ed.). Jalandoni v. Drilon, G.R. Nos. 115239-40, 2 March 2000, 327 SCRA 107, 121. SEC. 4. When and where petition filed. The petition shall be filed not later than sixty (60) days from notice of the judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the sixty (60) day period shall be counted from notice of the denial of said motion.
[10] [11]
The petition shall be filed in the Supreme Court or, if it relates to the acts or omissions of a lower court or of a corporation, board,
officer or person, in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the Court of Appeals whether or not the same is in aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its appellate jurisdiction. If it involves the acts or omissions of a quasi-judicial agency, unless otherwise provided by law or these rules, the petition shall be filed in and cognizable only by the Court of Appeals. No extension of time to file the petition shall be granted except for compelling reason and in no case exceeding 15 days.
[12]
Reyes v. Court of Appeals, G.R. No. 118233, 10 December 1999, 378 Phil. 232, 240 citing City of Baguio, Reforestation Administration v. Hon. Marcos, G.R. No. L-26100, 28 February 1969, 136 Phil. 569, 579. Lacson v. The Executive Secretary, G.R. No. 128096, 20 January 1999, 361 Phil. 251, 263.
[13]

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VOL. 148, MARCH 12, 1987 In Re: Wenceslao Laureta

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SUPREME COURT REPORTS ANNOTATED Demetria vs. Alba

Tuazon and Company, Inc. Administration, 31 SCRA 413.) o0o

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[G.R. No. 133064. September 16, 1999]