Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No.

156052 February 13, 2008 SOCIAL JUSTICE SOCIETY (SJS), VLADIMIR ALARIQUE T. CABIGAO and BONIFACIO S. TUMBOKON,petitioners, vs. HON. JOSE L. ATIENZA, JR., in his capacity as Mayor of the City of Manila, respondent. x----------------------x CHEVRON PHILIPPINES INC., PETRON CORPORATION and PILIPINAS SHELL PETROLEUM CORPORATION,movants-intervenors. x----------------------x DEPARTMENT OF ENERGY, movant-intervenor. RESOLUTION CORONA, J.: After we promulgated our decision in this case on March 7, 2007, Chevron Philippines Inc. (Chevron), Petron Corporation (Petron) and Pilipinas Shell Petroleum Corporation (Shell) (collectively, the oil companies) and the Republic of the Philippines, represented by the Department of Energy (DOE), filed their respective motions for leave to intervene and for reconsideration of the decision. 1 Chevron is engaged in the business of importing, distributing and marketing of petroleum products in the Philippines while Shell and Petron are engaged in the business of manufacturing, refining and likewise importing, distributing and 2 marketing of petroleum products in the Philippines. The DOE is a governmental agency created under Republic Act 3 (RA) No. 7638 and tasked to prepare, integrate, coordinate, supervise and control all plans, programs, projects and 4 activities of the government relative to energy exploration, development, utilization, distribution and conservation. The facts are restated briefly as follows: Petitioners Social Justice Society, Vladimir Alarique T. Cabigao and Bonifacio S. Tumbokon, in an original petition for mandamus under Rule 65 of the Rules of Court, sought to compel respondent Hon. Jose L. Atienza, Jr., then mayor of the City of Manila, to enforce Ordinance No. 8027. This ordinance was enacted by the Sangguniang 5 6 Panlungsod of Manila on November 20, 2001, approved by respondent Mayor on November 28, 2001, and became 7 effective on December 28, 2001 after publication. Sections 1 and 3 thereof state: SECTION 1. For the purpose of promoting sound urban planning and ensuring health, public safety, and general welfare of the residents of Pandacan and Sta. Ana as well as its adjoining areas, the land use of [those] portions of land bounded by the Pasig River in the north, PNR Railroad Track in the east, Beata St. in the south, Palumpong St. in the southwest, and Estero de Pandacan in the west[,] PNR Railroad in the northwest area, Estero de Pandacan in the [n]ortheast, Pasig River in the southeast and Dr. M.L. Carreon in the southwest. The area of Punta, Sta. Ana bounded by the Pasig River, Marcelino Obrero St., Mayo 28 St., and F. Manalo Street, are hereby reclassified from Industrial II to Commercial I. xxx xxx xxx SEC. 3. Owners or operators of industries and other businesses, the operation of which are no longer permitted under Section 1 hereof, are hereby given a period of six (6) months from the date of effectivity of this Ordinance within which to cease and desist from the operation of businesses which are hereby in consequence, disallowed. Ordinance No. 8027 reclassified the area described therein from industrial to commercial and directed the owners and operators of businesses disallowed under the reclassification to cease and desist from operating their businesses within six months from the date of effectivity of the ordinance. Among the businesses situated in the area are the socalled "Pandacan Terminals" of the oil companies. On June 26, 2002, the City of Manila and the Department of Energy (DOE) entered into a memorandum of 8 understanding (MOU) with the oil companies. They agreed that "the scaling down of the Pandacan Terminals [was] 9 the most viable and practicable option." The Sangguniang Panlungsod ratified the MOU in Resolution No. 97. In the same resolution, the Sanggunian declared that the MOU was effective only for a period of six months starting July 25, 10 11 2002. Thereafter, on January 30, 2003, the Sanggunian adopted Resolution No. 13 extending the validity of Resolution No. 97 to April 30, 2003 and authorizing the mayor of Manila to issue special business permits to the oil 12 companies. This was the factual backdrop presented to the Court which became the basis of our March 7, 2007 decision. We ruled that respondent had the ministerial duty under the Local Government Code (LGC) to "enforce all laws and 13 ordinances relative to the governance of the city," including Ordinance No. 8027. We also held that we need not resolve the issue of whether the MOU entered into by respondent with the oil companies and the subsequent resolutions passed by the Sanggunian could amend or repeal Ordinance No. 8027 since the resolutions which ratified the MOU and made it binding on the City of Manila expressly gave it full force and effect only until April 30, 2003. We concluded that there was nothing that legally hindered respondent from enforcing Ordinance No. 8027.

After we rendered our decision on March 7, 2007, the oil companies and DOE sought to intervene and filed motions for reconsideration in intervention on March 12, 2007 and March 21, 2007 respectively. On April 11, 2007, we conducted the oral arguments in Baguio City to hear petitioners, respondent and movants-intervenors oil companies and DOE. The oil companies called our attention to the fact that on April 25, 2003, Chevron had filed a complaint against respondent and the City of Manila in the Regional Trial Court (RTC) of Manila, Branch 39, for the annulment of Ordinance No. 8027 with application for writs of preliminary prohibitory injunction and preliminary mandatory 14 injunction. The case was docketed as civil case no. 03-106377. On the same day, Shell filed a petition for prohibition and mandamus likewise assailing the validity of Ordinance No. 8027 and with application for writs of 15 preliminary prohibitory injunction and preliminary mandatory injunction. This was docketed as civil case no. 03106380. Later on, these two cases were consolidated and the RTC of Manila, Branch 39 issued an order dated May 19, 2003 granting the applications for writs of preliminary prohibitory injunction and preliminary mandatory injunction: WHEREFORE, upon the filing of a total bond of TWO MILLION (Php 2,000,000.00) PESOS, let a Writ of Preliminary Prohibitory Injunction be issued ordering [respondent] and the City of Manila, their officers, agents, representatives, successors, and any other persons assisting or acting in their behalf, during the pendency of the case, to REFRAIN from taking steps to enforce Ordinance No. 8027, and let a Writ of Preliminary Mandatory Injunction be issued ordering [respondent] to issue [Chevron and Shell] the 16 necessary Business Permits to operate at the Pandacan Terminal. Petron likewise filed its own petition in the RTC of Manila, Branch 42, also attacking the validity of Ordinance No. 8027 with prayer for the issuance of a writ of preliminary injunction and/or temporary restraining order (TRO). This was docketed as civil case no. 03-106379. In an order dated August 4, 2004, the RTC enjoined the parties to 17 maintain the status quo. Thereafter, in 2006, the city council of Manila enacted Ordinance No. 8119, also known as the Manila 18 Comprehensive Land Use Plan and Zoning Ordinance of 2006. This was approved by respondent on June 16, 19 2006. Aggrieved anew, Chevron and Shell filed a complaint in the RTC of Manila, Branch 20, asking for the nullification of 20 Ordinance No. 8119. This was docketed as civil case no. 06-115334. Petron filed its own complaint on the same 21 22 causes of action in the RTC of Manila, Branch 41. This was docketed as civil case no. 07-116700. The court 23 issued a TRO in favor of Petron, enjoining the City of Manila and respondent from enforcing Ordinance No. 8119. Meanwhile, in civil case no. 03-106379, the parties filed a joint motion to withdraw complaint and counterclaim on 24 February 20, 2007. In an order dated April 23, 2007, the joint motion was granted and all the claims and 25 counterclaims of the parties were withdrawn. Given these additional pieces of information, the following were submitted as issues for our resolution: 26 1. whether movants-intervenors should be allowed to intervene in this case; 2. whether the following are impediments to the execution of our March 7, 2007 decision: (a) Ordinance No. 8119, the enactment and existence of which were not previously brought by the parties to the attention of the Court and (b) writs of preliminary prohibitory injunction and preliminary mandatory injunction and status quo order issued by the RTC of Manila, Branches 39 and 42 and 3. whether the implementation of Ordinance No. 8027 will unduly encroach upon the DOEs powers and functions involving energy resources. During the oral arguments, the parties submitted to this Courts power to rule on th e constitutionality and validity of 27 Ordinance No. 8027 despite the pendency of consolidated cases involving this issue in the RTC. The importance of settling this controversy as fully and as expeditiously as possible was emphasized, considering its impact on public interest. Thus, we will also dispose of this issue here. The parties were after all given ample opportunity to present and argue their respective positions. By so doing, we will do away with the delays concomitant with litigation and completely adjudicate an issue which will most likely reach us anyway as the final arbiter of all legal disputes. Before we resolve these issues, a brief review of the history of the Pandacan Terminals is called for to put our discussion in the proper context. History Of The Pandacan Oil Terminals Pandacan (one of the districts of the City of Manila) is situated along the banks of the Pasig river. At the turn of the twentieth century, Pandacan was unofficially designated as the industrial center of Manila. The area, then largely uninhabited, was ideal for various emerging industries as the nearby river facilitated the transportation of goods and 28 products. In the 1920s, it was classified as an industrial zone. Among its early industrial settlers were the oil 29 companies. Shell established its installation there on January 30, 1914. Caltex (now Chevron) followed suit in 1917 30 when the company began marketing its products in the country. In 1922, it built a warehouse depot which was later 31 converted into a key distribution terminal. The corporate presence in the Philippines of Esso (Petrons predecessor) 32 became more keenly felt when it won a concession to build and operate a refinery in Bataan in 1957. It then went on to operate a state-of-the-art lube oil blending plant in the Pandacan Terminals where it manufactures lubes and 33 greases. On December 8, 1941, the Second World War reached the shores of the Philippine Islands. Although Manila was declared an open city, the Americans had no interest in welcoming the Japanese. In fact, in their zealous attempt to

fend off the Japanese Imperial Army, the United States Army took control of the Pandacan Terminals and hastily made plans to destroy the storage facilities to deprive the advancing Japanese Army of a valuable logistics 34 weapon. The U.S. Army burned unused petroleum, causing a frightening conflagration. Historian Nick Joaquin recounted the events as follows: After the USAFFE evacuated the City late in December 1941, all army fuel storage dumps were set on fire. The flames spread, enveloping the City in smoke, setting even the rivers ablaze, endangering bridges and all riverside buildings. For one week longer, the "open city" blazeda cloud of smoke by day, a pillar of 35 fire by night. The fire consequently destroyed the Pandacan Terminals and rendered its network of depots and service stations 36 inoperative. After the war, the oil depots were reconstructed. Pandacan changed as Manila rebuilt itself. The three major oil 37 companies resumed the operation of their depots. But the district was no longer a sparsely populated industrial zone; it had evolved into a bustling, hodgepodge community. Today, Pandacan has become a densely populated 38 area inhabited by about 84,000 people, majority of whom are urban poor who call it home. Aside from numerous industrial installations, there are also small businesses, churches, restaurants, schools, daycare centers and 39 residences situated there. Malacaang Palace, the official residence of the President of the Philippines and the seat 40 of governmental power, is just two kilometers away. There is a private school near the Petron depot. Along the walls 41 of the Shell facility are shanties of informal settlers. More than 15,000 students are enrolled in elementary and high 42 schools situated near these facilities. A university with a student population of about 25,000 is located directly 43 across the depot on the banks of the Pasig river. 44 The 36-hectare Pandacan Terminals house the oil companies distribution terminals and depot facilities. The refineries of Chevron and Shell in Tabangao and Bauan, both in Batangas, respectively, are connected to the 45 46 Pandacan Terminals through a 114-kilometer underground pipeline system. Petrons refinery in Limay, Bataan, on 47 the other hand, also services the depot. The terminals store fuel and other petroleum products and supply 95% of 48 49 the fuel requirements of Metro Manila, 50% of Luzons consumption and 35% nationwide. Fuel can also be transported through barges along the Pasig river or tank trucks via the South Luzon Expressway. We now discuss the first issue: whether movants-intervenors should be allowed to intervene in this case. Intervention Of The Oil Companies And The DOE Should Be Allowed In The Interest of Justice Intervention is a remedy by which a third party, not originally impleaded in the proceedings, becomes a litigant therein 50 to enable him, her or it to protect or preserve a right or interest which may be affected by such proceedings. The pertinent rules are Sections 1 and 2, Rule 19 of the Rules of Court: SEC. 1. Who may intervene. A person who has a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenors rights may be fully protected in a separate proceeding. SEC. 2. Time to intervene. The motion to intervene may be filed at any time before rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties. Thus, the following are the requisites for intervention of a non-party: (1) Legal interest (a) in the matter in controversy; or (b) in the success of either of the parties; or I against both parties; or (d) person is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof; (2) Intervention will not unduly delay or prejudice the adjudication of rights of original parties; 51 (3) Intervenors rights may not be fully protected in a separate proceeding and (g)The motion to intervene may be filed at any time before rendition of judgment by the trial court. For both the oil companies and DOE, the last requirement is definitely absent. As a rule, intervention is allowed "before rendition of judgment" as Section 2, Rule 19 expressly provides. Both filed their separate motions after our 52 decision was promulgated. In Republic of the Philippines v. Gingoyon, a recently decided case which was also an original action filed in this Court, we declared that the appropriate time to file the motions-in-intervention was before 53 and not after resolution of the case. The Court, however, has recognized exceptions to Section 2, Rule 19 in the interest of substantial justice: The rule on intervention, like all other rules of procedure, is intended to make the powers of the Court fully and completely available for justice. It is aimed to facilitate a comprehensive adjudication of rival claims 54 overriding technicalities on the timeliness of the filing thereof. The oil companies assert that they have a legal interest in this case because the implementation of Ordinance No. 55 8027 will directly affect their business and property rights.

[T]he interest which entitles a person to intervene in a suit between other parties must be in the matter in litigation and of such direct and immediate character that the intervenor will either gain or lose by direct legal operation and effect of the judgment. Otherwise, if persons not parties to the action were allowed to intervene, proceedings would become unnecessarily complicated, expensive and interminable. And this would be against the policy of the law. The words "an interest in the subject" means a direct interest in the cause of action as pleaded, one that would put the intervenor in a legal position to litigate a fact alleged in 56 the complaint without the establishment of which plaintiff could not recover. We agree that the oil companies have a direct and immediate interest in the implementation of Ordinance No. 8027. Their claim is that they will need to spend billions of pesos if they are compelled to relocate their oil depots out of Manila. Considering that they admitted knowing about this case from the time of its filing on December 4, 2002, they 57 should have intervened long before our March 7, 2007 decision to protect their interests. But they did not. Neither did they offer any worthy explanation to justify their late intervention. Be that as it may, although their motion for intervention was not filed on time, we will allow it because they raised and presented novel issues and arguments that were not considered by the Court in its March 7, 2007 decision. After all, the allowance or disallowance of a motion to intervene is addressed to the sound discretion of the court before which 58 the case is pending. Considering the compelling reasons favoring intervention, we do not think that this will unduly delay or prejudice the adjudication of rights of the original parties. In fact, it will be expedited since their intervention will enable us to rule on the constitutionality of Ordinance No. 8027 instead of waiting for the RTCs decision. The DOE, on the other hand, alleges that its interest in this case is also direct and immediate as Ordinance No. 8027 encroaches upon its exclusive and national authority over matters affecting the oil industry. It seeks to intervene in order to represent the interests of the members of the public who stand to suffer if the Pandacan Terminals operations are discontinued. We will tackle the issue of the alleged encroachment into DOEs domain later on. Suffice it to say at this point that, for the purpose of hearing all sides and considering the transcendental importance of this case, we will also allow DOEs intervention. The Injunctive Writs Are Not Impediments To The Enforcement Of Ordinance No. 8027 59 Under Rule 65, Section 3 of the Rules of Court, a petition for mandamus may be filed when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station. According to the oil companies, respondent did not unlawfully fail or neglect to enforce Ordinance No. 8027 because he was lawfully prevented from doing so by virtue of the injunctive writs and status quo order issued by the RTC of Manila, Branches 39 and 42. First, we note that while Chevron and Shell still have in their favor the writs of preliminary injunction and preliminary mandatory injunction, the status quo order in favor of Petron is no longer in effect since the court granted the joint 60 motion of the parties to withdraw the complaint and counterclaim. Second, the original parties failed to inform the Court about these injunctive writs. Respondent (who was also impleaded as a party in the RTC cases) defends himself by saying that he informed the court of the pendency of the civil cases and that a TRO was issued by the RTC in the consolidated cases filed by Chevron and Shell. It is true that had the oil companies only intervened much earlier, the Court would not have been left in the dark about these facts. Nevertheless, respondent should have updated the Court, by way of manifestation, on such a relevant matter. In his memorandum, respondent mentioned the issuance of a TRO. Under Section 5 of Rule 58 of the Rules of Court, a TRO issued by the RTC is effective only for a period of 20 days. This is why, in our March 7, 2007 decision, we 61 presumed with certainty that this had already lapsed. Respondent also mentioned the grant of injunctive writs in his rejoinder which the Court, however, expunged for being a prohibited pleading. The parties and their counsels were clearly remiss in their duties to this Court. 62 In resolving controversies, courts can only consider facts and issues pleaded by the parties. Courts, as well as magistrates presiding over them are not omniscient. They can only act on the facts and issues presented before them in appropriate pleadings. They may not even substitute their own personal knowledge for evidence. Nor may they take notice of matters except those expressly provided as subjects of mandatory judicial notice. We now proceed to the issue of whether the injunctive writs are legal impediments to the enforcement of Ordinance No. 8027. Section 3, Rule 58 of the Rules of Court enumerates the grounds for the issuance of a writ of preliminary injunction: SEC. 3. Grounds for issuance of preliminary injunction. A preliminary injunction may be granted when it is established: (a) That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually; (b) That the commission, continuance or nonperformance of the act or acts complained of during the litigation would probably work injustice to the applicant; or (g) IThat a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual.

There are two requisites for the issuance of a preliminary injunction: (1) the right to be protected exists prima facieand (2) the acts sought to be enjoined are violative of that right. It must be proven that the violation sought to be prevented will cause an irreparable injustice. The act sought to be restrained here was the enforcement of Ordinance No. 8027. It is a settled rule that an 63 ordinance enjoys the presumption of validity and, as such, cannot be restrained by injunction. Nevertheless, when the validity of the ordinance is assailed, the courts are not precluded from issuing an injunctive writ against its enforcement. However, we have declared that the issuance of said writ is proper only when: ... the petitioner assailing the ordinance has made out a case of unconstitutionality strong enough to overcome, in the mind of the judge, the presumption of validity, in addition to a showing of a clear legal 64 right to the remedy sought.... (Emphasis supplied) Judge Reynaldo G. Ros, in his order dated May 19, 2003, stated his basis for issuing the injunctive writs: The Court, in resolving whether or not a Writ of Preliminary Injunction or Preliminary Mandatory Injunction should be issued, is guided by the following requirements: (1) a clear legal right of the complainant; (2) a violation of that right; and (3) a permanent and urgent necessity for the Writ to prevent serious damage. The Court believes that these requisites are present in these cases. There is no doubt that the plaintiff/petitioners have been legitimately operating their business in the Pandacan Terminal for many years and they have made substantial capital investment therein. Every year they were issued Business Permits by the City of Manila. Its operations have not been declared illegal or contrary to law or morals. In fact, because of its vital importance to the national economy, it was included in the Investment Priorities Plan as mandated under the "Downstream Oil Industry Deregulation Act of 1988 (R.A. 8479). As a lawful business, the plaintiff/petitioners have a right, therefore, to continue their operation in the Pandacan Terminal and the right to protect their investments. This is a clear and unmistakable right of the plaintiff/petitioners. The enactment, therefore, of City Ordinance No. 8027 passed by the City Council of Manila reclassifying the area where the Pandacan Terminal is located from Industrial II to Commercial I and requiring the plaintiff/petitioners to cease and desist from the operation of their business has certainly violated the rights of the plaintiff/petitioners to continue their legitimate business in the Pandacan Terminal and deprived them of their huge investments they put up therein. Thus, before the Court, therefore, determines whether the Ordinance in question is valid or not, a Writ of Preliminary Injunction and a Writ of Mandatory Injunction be 65 issued to prevent serious and irreparable damage to plaintiff/petitioners. Nowhere in the judges discussion can we see that, in addition to a sh owing of a clear legal right of Chevron and Shell to the remedy sought, he was convinced that they had made out a case of unconstitutionality or invalidity strong enough to overcome the presumption of validity of the ordinance. Statutes and ordinances 66 are presumed valid unless and until the courts declare the contrary in clear and unequivocal terms. The mere fact that the ordinance is alleged to be unconstitutional or invalid will not entitle a party to have its enforcement 67 enjoined. The presumption is all in favor of validity. The reason for this is obvious: The action of the elected representatives of the people cannot be lightly set aside. The councilors must, in the very nature of things, be familiar with the necessities of their particular municipality and with all the facts and circumstances which surround the subject and necessitate action. The local legislative body, by enacting the ordinance, has in effect given notice that the regulations are essential to the well being of the people . . . The Judiciary should not lightly set aside legislative action when there is not a clear invasion of 68 personal or property rights under the guise of police regulation. Xxx ...[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 69 their representatives in the executive and legislative departments of the government. The oil companies argue that this presumption must be set aside when the invalidity or unreasonableness appears on 70 the face of the ordinance itself. We see no reason to set aside the presumption. The ordinance, on its face, does not at all appear to be unconstitutional. It reclassified the subject area from industrial to commercial. Prima facie, this power is within the power of municipal corporations: The power of municipal corporations to divide their territory into industrial, commercial and residential zones is recognized in almost all jurisdictions inasmuch as it is derived from the police power itself and is exercised 71 for the protection and benefit of their inhabitants. Xxx There can be no doubt that the City of Manila has the power to divide its territory into residential and industrial zones, and to prescribe that offensive and unwholesome trades and occupations are to be established exclusively in the latter zone. xxx xxx xxx Likewise, it cannot be denied that the City of Manila has the authority, derived from the police power, of forbidding the appellant to continue the manufacture of toyo in the zone where it is now situated, which has 72 been declared residential....

Courts will not invalidate an ordinance unless it clearly appears that it is unconstitutional. There is no such showing here. Therefore, the injunctive writs issued in the Manila RTCs May 19, 2003 order had no leg to stand on. We are aware that the issuance of these injunctive writs is not being assailed as tainted with grave abuse of discretion. However, we are confronted with the question of whether these writs issued by a lower court are impediments to the enforcement of Ordinance No. 8027 (which is the subject of the mandamus petition). As already discussed, we rule in the negative. Ordinance No. 8027 Was Not Superseded By Ordinance No. 8119 The March 7, 2007 decision did not take into consideration the passage of Ordinance No. 8119 entitled "An Ordinance Adopting the Manila Comprehensive Land Use Plan and Zoning Regulations of 2006 and Providing for the Administration, Enforcement and Amendment thereto" which was approved by respondent on June 16, 2006. The simple reason was that the Court was never informed about this ordinance. While courts are required to take judicial notice of the laws enacted by Congress, the rule with respect to local ordinances is different. Ordinances are not included in the enumeration of matters covered by mandatory judicial 73 notice under Section 1, Rule 129 of the Rules of Court. 74 Although, Section 50 of RA 409 provides that: SEC. 50 Judicial notice of ordinances. - All courts sitting in the city shall take judicial notice of the ordinances passed by the [Sangguniang Panglungsod]. This cannot be taken to mean that this Court, since it has its seat in the City of Manila, should have taken steps to procure a copy of the ordinance on its own, relieving the party of any duty to inform the Court about it. Even where there is a statute that requires a court to take judicial notice of municipal ordinances, a court is not required to take judicial notice of ordinances that are not before it and to which it does not have access. The party asking the court to take judicial notice is obligated to supply the court with the full text of the rules the party desires it 75 to have notice of. Counsel should take the initiative in requesting that a trial court take judicial notice of an 76 ordinance even where a statute requires courts to take judicial notice of local ordinances. The intent of a statute requiring a court to take judicial notice of a local ordinance is to remove any discretion a court might have in determining whether or not to take notice of an ordinance. Such a statute does not direct the court to act on its own in obtaining evidence for the record and a party must make the ordinance available to the court for it to 77 take notice. In its defense, respondent claimed that he did not inform the Court about the enactment of Ordinance No. 8119 because he believed that it was different from Ordinance No. 8027 and that the two were not inconsistent with each 78 other. In the same way that we deem the intervenors late intervention in this case unjustified, we find the failure of respondent, who was an original party here, inexcusable. The Rule On Judicial Admissions Is Not Applicable Against Respondent The oil companies assert that respondent judicially admitted that Ordinance No. 8027 was repealed by Ordinance No. 8119 in civil case no. 03-106379 (where Petron assailed the constitutionality of Ordinance No. 8027) when the parties in their joint motion to withdraw complaint and counterclaim stated that "the issue ...has been rendered moot and 79 academic by virtue of the passage of [Ordinance No. 8119]." They contend that such admission worked as an estoppel against the respondent. Respondent countered that this stipulation simply meant that Petron was recognizing the validity and legality of Ordinance No. 8027 and that it had conceded the issue of said ordinances constitutionality, opting instead to 80 question the validity of Ordinance No. 8119. The oil companies deny this and further argue that respondent, in his answer in civil case no. 06-115334 (where Chevron and Shell are asking for the nullification of Ordinance No. 8119), 81 expressly stated that Ordinance No. 8119 replaced Ordinance No. 8027: ... Under Ordinance No. 8027, businesses whose uses are not in accord with the reclassification were given six months to cease [their] operation. Ordinance No. 8119, which in effect, replaced Ordinance [No.] 8027, merely took note of the time frame provided for in Ordinance No. 8119.... Ordinance No. 8119 thus 82 provided for an even longer term, that is[,] seven years; (Emphasis supplied) Rule 129, Section 4 of the Rules of Court provides: Section 4. Judicial admissions. An admission, verbal or written, made by a party in the course of t he proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. (Emphasis supplied) While it is true that a party making a judicial admission cannot subsequently take a position contrary to or inconsistent 83 with what was pleaded, the aforestated rule is not applicable here. Respondent made the statements regarding the 84 ordinances in civil case nos. 03-106379 and 06-115334 which are not "the same" as this case before us. To constitute a judicial admission, the admission must be made in the same case in which it is offered. Hence, respondent is not estopped from claiming that Ordinance No. 8119 did not supersede Ordinance No. 8027. On the contrary, it is the oil companies which should be considered estopped. They rely on the argument that Ordinance No. 8119 superseded Ordinance No. 8027 but, at the same time, also impugn its (8119s) validity. We frown on the adoption of inconsistent positions and distrust any attempt at clever positioning under one or the other on the basis of what appears advantageous at the moment. Parties cannot take vacillating or contrary positions

regarding the validity of a statute or ordinance. Nonetheless, we will look into the merits of the argument of implied repeal. Ordinance No. 8119 Did Not Impliedly Repeal Ordinance No. 8027 Both the oil companies and DOE argue that Ordinance No. 8119 repealed Ordinance No. 8027. They assert that 86 although there was no express repeal of Ordinance No. 8027, Ordinance No. 8119 impliedly repealed it. According to the oil companies, Ordinance No. 8119 reclassified the area covering the Pandacan Terminals to "High 87 Density Residential/Mixed Use Zone (R-3/MXD)" whereas Ordinance No. 8027 reclassified the same area from Industrial II to Commercial I: SECTION 1. For the purpose of promoting sound urban planning and ensuring health, public safety, and general welfare of the residents of Pandacan and Sta. Ana as well as its adjoining areas, the land use of [those] portions of land bounded by the Pasig River in the north, PNR Railroad Track in the east, Beata St. in the south, Palumpong St. in the southwest, and Estero de Pancacan in the west[,] PNR Railroad in the northwest area, Estero de Pandacan in the [n]ortheast, Pasig River in the southeast and Dr. M.L. Carreon in the southwest. The area of Punta, Sta. Ana bounded by the Pasig River, Marcelino Obrero St., Mayo 28 St., and F. Manalo Street, are hereby reclassified from Industrial II to Commercial I. (Emphasis supplied) Moreover, Ordinance No. 8119 provides for a phase-out of seven years: SEC. 72. Existing Non-Conforming Uses and Buildings. - The lawful use of any building, structure or land at the time of the adoption of this Ordinance may be continued, although such use does not conform with the provision of the Ordinance, provided: xxx xxx xxx (g) In case the non-conforming use is an industrial use: xxx xxx xxx d. The land use classified as non-conforming shall program the phase-out and relocation of the non-conforming use within seven (7) years from the date of effectivity of this Ordinance . (Emphasis supplied) This is opposed to Ordinance No. 8027 which compels affected entities to vacate the area within six months from the effectivity of the ordinance: SEC. 3. Owners or operators of industries and other businesses, the operation of which are no longer permitted under Section 1 hereof, are hereby given a period of six (6) months from the date of effectivity of this Ordinance within which to cease and desist from the operation of businesses which are hereby in consequence, disallowed. Ordinance No. 8119 also designated the Pandacan oil depot area as a "Planned Unit Development/Overlay Zone (OPUD)": SEC. 23. Use Regulations in Planned Unit Development/Overlay Zone (O-PUD). O-PUD Zones are identified specific sites in the City of Manila wherein the project site is comprehensively planned as an entity via unitary site plan which permits flexibility in planning/ design, building siting, complementarily of building types and land uses, usable open spaces and the preservation of significant natural land features, pursuant to regulations specified for each particular PUD. Enumerated below are identified PUD: xxx xxx xxx 6. Pandacan Oil Depot Area xxx xxx xxx Enumerated below are the allowable uses: 1. all uses allowed in all zones where it is located 2. the [Land Use Intensity Control (LUIC)] under which zones are located shall, in all instances be complied with 3. the validity of the prescribed LUIC shall only be [superseded] by the development controls and regulations specified for each PUD as provided for each PUD as provided for by the masterplan of respective 88 PUDs. (Emphasis supplied) Respondent claims that in passing Ordinance No. 8119, the Sanggunian did not intend to repeal Ordinance No. 8027 but meant instead to carry over 8027s provisions to 8119 for the purpose of making Ordinance No. 8027 applicable 89 to the oil companies even after the passage of Ordinance No. 8119. He quotes an excerpt from the minutes of the July 27, 2004 session of the Sanggunian during the first reading of Ordinance No. 8119: Member GARCIA: Your Honor, iyong patungkol po roon sa oil depot doon sa amin sa Sixth District sa Pandacan, wala pong nakalagay eith sa ordinansa rito na taliwas o kakaiba roon sa ordinansang ipinasa noong nakaraang Konseho, iyong Ordinance No. 8027. So kung ano po ang nandirito sa ordinansa na ipinasa ninyo last time, iyon lang po ang ni-lift eithe at inilagay eith. At eith eith ordinansang iyong naipasa ng huling Konseho, niri-classify [ninyo] from Industrial II to Commercial C-1 ang area ng Pandacan kung nasaan ang oil depot. So ini-lift lang po [eithe] iyong definition, density, at saka po yon pong ng noong ordinansa ninyo na siya eith naming inilagay eith, iniba lang po naming iyong title. So wala po kaming binago na taliwas o nailagay na taliwas doon sa ordinansang ipinasa ninyo, ni-lift lang po [eithe] 90 from Ordinance No. 8027." (Emphasis supplied) We agree with respondent.

85

Repeal by implication proceeds on the premise that where a statute of later date clearly reveals the intention of the 91 legislature to abrogate a prior act on the subject, that intention must be given effect. There are two kinds of implied repeal. The first is: where the provisions in the two acts on the same subject matter are irreconcilably contradictory, the latter act, to the extent of the conflict, constitutes an implied repeal of the earlier 92 one. The second is: if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, 93 it will operate to repeal the earlier law. The oil companies argue that the situation here falls under the first category. 94 Implied repeals are not favored and will not be so declared unless the intent of the legislators is manifest. As statutes and ordinances are presumed to be passed only after careful deliberation and with knowledge of all existing ones on the subject, it follows that, in passing a law, the legislature did not intend to interfere with or abrogate a 95 former law relating to the same subject matter. If the intent to repeal is not clear, the later act should be construed 96 as a continuation of, and not a substitute for, the earlier act. These standards are deeply enshrined in our jurisprudence. We disagree that, in enacting Ordinance No. 8119, there 97 was any indication of the legislative purpose to repeal Ordinance No. 8027. The excerpt quoted above is proof that there was never such an intent. While it is true that both ordinances relate to the same subject matter,i.e. classification of the land use of the area where Pandacan oil depot is located, if there is no intent to repeal the earlier enactment, every effort at reasonable construction must be made to reconcile the ordinances so that both can be given effect: The fact that a later enactment may relate to the same subject matter as that of an earlier statute is not of itself sufficient to cause an implied repeal of the prior act, since the new statute may merely be cumulative or 98 a continuation of the old one. What is necessary is a manifest indication of legislative purpose to repeal. For the first kind of implied repeal, there must be an irreconcilable conflict between the two ordinances. There is no conflict between the two ordinances. Ordinance No. 8027 reclassified the Pandacan area from Industrial II to Commercial I. Ordinance No. 8119, in Section 23, designated it as a "Planned Unit Development/Overlay Zone (O99 PUD)." In its Annex C which defined the zone boundaries, the Pandacan area was shown to be within the "High Density Residential/Mixed Use Zone (R-3/MXD)." These zone classifications in Ordinance No. 8119 are not inconsistent with the reclassification of the Pandacan area from Industrial to Commercial in Ordinance No. 8027. The "O-PUD" classification merely made Pandacan a "project site ... comprehensively planned as an entity via unitary site plan which permits flexibility in planning/design, building siting, complementarity of building types and land uses, 100 usable open spaces and the preservation of significant natural land features...." Its classification as "R-3/MXD" means that it should "be used primarily for high-rise housing/dwelling purposes and limited 101 complementary/supplementary trade, services and business activities." There is no conflict since both ordinances actually have a common objective, i.e., to shift the zoning classification from industrial to commercial (Ordinance No. 8027) or mixed residential/commercial (Ordinance No. 8119). Moreover, it is a well-settled rule in statutory construction that a subsequent general law does not repeal a prior special law on the same subject unless it clearly appears that the legislature has intended by the latter general act to modify or repeal the earlier special law. Generalia specialibus non derogant (a general law does not nullify a specific 102 or special law). This is so even if the provisions of the general law are sufficiently comprehensive to include what 103 was set forth in the special act. The special act and the general law must stand together, one as the law of the 104 particular subject and the other as the law of general application. The special law must be taken as intended to 105 constitute an exception to, or a qualification of, the general act or provision. The reason for this is that the legislature, in passing a law of special character, considers and makes special provisions for the particular circumstances dealt with by the special law. This being so, the legislature, by adopting a general law containing provisions repugnant to those of the special law and without making any mention of its intention to amend or modify such special law, cannot be deemed to have intended an 106 amendment, repeal or modification of the latter. 107 Ordinance No. 8027 is a special law since it deals specifically with a certain area described therein (the Pandacan 108 oil depot area) whereas Ordinance No. 8119 can be considered a general law as it covers the entire city of Manila. The oil companies assert that even if Ordinance No. 8027 is a special law, the existence of an all-encompassing repealing clause in Ordinance No. 8119 evinces an intent on the part of the Sanggunian to repeal the earlier ordinance: Sec. 84. Repealing Clause. All ordinances, rules, regulations in conflict with the provisions of this Ordinance are hereby repealed; PROVIDED, That the rights that are vested upon the effectivity of this Ordinance shall not be impaired. 109 They cited Hospicio de San Jose de Barili, Cebu City v. Department of Agrarian Reform: The presence of such general repealing clause in a later statute clearly indicates the legislative intent to repeal all prior inconsistent laws on the subject matter, whether the prior law is a general law or a special law... Without such a clause, a later general law will ordinarily not repeal a prior special law on the same subject. But with such clause contained in the subsequent general law, the prior special law will be deemed 110 repealed, as the clause is a clear legislative intent to bring about that result. This ruling in not applicable here. The repealing clause of Ordinance No. 8119 cannot be taken to indicate the legislative intent to repeal all prior inconsistent laws on the subject matter, including Ordinance No. 8027, a special

enactment, since the aforequoted minutes (an official record of the discussions in the Sanggunian) actually indicated the clear intent to preserve the provisions of Ordinance No. 8027. To summarize, the conflict between the two ordinances is more apparent than real. The two ordinances can be reconciled. Ordinance No. 8027 is applicable to the area particularly described therein whereas Ordinance No. 8119 is applicable to the entire City of Manila. Mandamus Lies To Compel Respondent Mayor To Enforce Ordinance No. 8027 The oil companies insist that mandamus does not lie against respondent in consideration of the separation of powers 111 of the executive and judiciary. This argument is misplaced. Indeed, [the] Courts will not interfere by mandamus proceedings with the legislative [or executive departments] of the government in the legitimate exercise of its powers, except to enforce mere ministerial acts required by 112 law to be performed by some officer thereof. (Emphasis Supplied) since this is the function of a writ of mandamus, which is the power to compel "the performance of an act which the 113 law specifically enjoins as a duty resulting from office, trust or station." They also argue that petitioners had a plain, speedy and adequate remedy to compel respondent to enforce Ordinance No. 8027 which was to seek relief from the President of the Philippines through the Secretary of the Department of Interior and Local Government (DILG) by virtue of the Presidents power of supervision over local government units. Again, we disagree. A party need not go first to the DILG in order to compel the enforcement of an ordinance. This suggested process would be unreasonably long, tedious and consequently injurious to the interests of the local government unit (LGU) and its constituents whose welfa re is sought to be protected. Besides, petitioners 114 resort to an original action for mandamus before this Court is undeniably allowed by the Constitution. Ordinance No. 8027 Is Constitutional And Valid Having ruled that there is no impediment to the enforcement of Ordinance No. 8027, we now proceed to make a definitive ruling on its constitutionality and validity. The tests of a valid ordinance are well established. For an ordinance to be valid, it must not only be within the corporate powers of the LGU to enact and be passed according to the procedure prescribed by law, it must also conform to the following substantive requirements: (1) must not contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may regulate trade; (5) 115 must be general and consistent with public policy and (6) must not be unreasonable. The City of Manila Has The Power To Enact Ordinance No. 8027 Ordinance No. 8027 was passed by the Sangguniang Panlungsod of Manila in the exercise of its police power. Police power is the plenary power vested in the legislature to make statutes and ordinances to promote the health, morals, 116 peace, education, good order or safety and general welfare of the people. This power flows from the recognition 117 that salus populi est suprema lex (the welfare of the people is the supreme law). While police power rests primarily 118 with the national legislature, such power may be delegated. Section 16 of the LGC, known as the general welfare 119 clause, encapsulates the delegated police power to local governments: Section 16. General Welfare. Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. LGUs like the City of Manila exercise police power through their respective legislative bodies, in this case, theSangguniang Panlungsod or the city council. Specifically, the Sanggunian can enact ordinances for the general welfare of the city: Section. 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panglungsod, as the legislative branch of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code xxxx This police power was also provided for in RA 409 or the Revised Charter of the City of Manila: Section 18. Legislative powers. The [City Council] shall have the following legislative powers: xxx xxx xxx (g) To enact all ordinances it may deem necessary and proper for the sanitation and safety, the furtherance of the prosperity, and the promotion of the morality, peace, good order, comfort, convenience, and general welfare of the city and its inhabitants, and such others as may be necessary to carry into effect and 120 discharge the powers and duties conferred by this chapter xxxx 121 Specifically, the Sanggunian has the power to "reclassify land within the jurisdiction of the city." The Enactment Of Ordinance No. 8027 Is A Legitimate Exercise Of Police Power As with the State, local governments may be considered as having properly exercised their police power only if the following requisites are met: (1) the interests of the public generally, as distinguished from those of a particular class, require its exercise and (2) the means employed are reasonably necessary for the accomplishment of the purpose

and not unduly oppressive upon individuals. In short, there must be a concurrence of a lawful subject and a lawful 122 method. Ordinance No. 8027 was enacted "for the purpose of promoting sound urban planning, ensuring health, public safety 123 and general welfare" of the residents of Manila. The Sanggunian was impelled to take measures to protect the residents of Manila from catastrophic devastation in case of a terrorist attack on the Pandacan Terminals. Towards this objective, the Sanggunian reclassified the area defined in the ordinance from industrial to commercial. The following facts were found by the Committee on Housing, Resettlement and Urban Development of the City of Manila which recommended the approval of the ordinance: (1) the depot facilities contained 313.5 million liters of highly flammable and highly volatile products which include petroleum gas, liquefied petroleum gas, aviation fuel, diesel, gasoline, kerosene and fuel oil among others; (2) the depot is open to attack through land, water or air; (3) it is situated in a densely populated place and near Malacaang Palace and 124 (4) in case of an explosion or conflagration in the depot, the fire could spread to the neighboring communities. The ordinance was intended to safeguard the rights to life, security and safety of all the inhabitants of Manila and not 125 just of a particular class. The depot is perceived, rightly or wrongly, as a representation of western interests which means that it is a terrorist target. As long as it there is such a target in their midst, the residents of Manila are not safe. It therefore became necessary to remove these terminals to dissipate the threat. According to respondent: Such a public need became apparent after the 9/11 incident which showed that what was perceived to be impossible to happen, to the most powerful country in the world at that, is actually possible. The destruction of property and the loss of thousands of lives on that fateful day became the impetus for a public need. In the aftermath of the 9/11 tragedy, the threats of terrorism continued [such] that it became imperative for 126 governments to take measures to combat their effects. Wide discretion is vested on the legislative authority to determine not only what the interests of the public require but 127 also what measures are necessary for the protection of such interests. Clearly, the Sanggunian was in the best position to determine the needs of its constituents. In the exercise of police power, property rights of individuals may be subjected to restraints and burdens in order to 128 fulfill the objectives of the government. Otherwise stated, the government may enact legislation that may interfere 129 with personal liberty, property, lawful businesses and occupations to promote the general welfare. However, the interference must be reasonable and not arbitrary. And to forestall arbitrariness, the methods or means used to 130 protect public health, morals, safety or welfare must have a reasonable relation to the end in view. The means adopted by the Sanggunian was the enactment of a zoning ordinance which reclassified the area where the depot is situated from industrial to commercial. A zoning ordinance is defined as a local city or municipal legislation which logically arranges, prescribes, defines and apportions a given political subdivision into specific land 131 uses as present and future projection of needs. As a result of the zoning, the continued operation of the businesses of the oil companies in their present location will no longer be permitted. The power to establish zones for industrial, commercial and residential uses is derived from the police power itself and is exercised for the protection 132 and benefit of the residents of a locality. Consequently, the enactment of Ordinance No. 8027 is within the power of the Sangguniang Panlungsod of the City of Manila and any resulting burden on those affected cannot be said to be unjust: There can be no doubt that the City of Manila has the power to divide its territory into residential and industrial zones, and to prescribe that offensive and unwholesome trades and occupations are to be established exclusively in the latter zone. "The benefits to be derived by cities adopting such regulations (zoning) may be summarized as follows: They attract a desirable and assure a permanent citizenship; they foster pride in and attachment to the city; they promote happiness and contentment; they stabilize the use and value of property and promote the peace, [tranquility], and good order of the city. We do not hesitate to say that the attainment of these objects affords a legitimate field for the exercise of the police power. He who owns property in such a district is not deprived of its use by such regulations. He may use it for the purposes to which the section in which it is located is dedicated. That he shall not be permitted to use it to the desecration of the community constitutes no unreasonable or permanent hardship and results in no unjust burden." xxx xxx xxx th "The 14 Amendment protects the citizen in his right to engage in any lawful business, but it does not prevent legislation intended to regulate useful occupations which, because of their nature or location, may 133 prove injurious or offensive to the public." We entertain no doubt that Ordinance No. 8027 is a valid police power measure because there is a concurrence of lawful subject and lawful method. Ordinance No. 8027 Is Not Unfair, Oppressive Or Confiscatory Which Amounts To Taking Without Compensation According to the oil companies, Ordinance No. 8027 is unfair and oppressive as it does not only regulate but also absolutely prohibits them from conducting operations in the City of Manila. Respondent counters that this is not accurate since the ordinance merely prohibits the oil companies from operating their businesses in the Pandacan area.

Indeed, the ordinance expressly delineated in its title and in Section 1 what it pertained to. Therefore, the oil companies contention is not supported by the text of the ordinance. Respondent succinctly stat ed that: The oil companies are not forbidden to do business in the City of Manila. They may still very well do so, except that their oil storage facilities are no longer allowed in the Pandacan area. Certainly, there are other places in the City of Manila where they can conduct this specific kind of business. Ordinance No. 8027 did not render the oil companies illegal. The assailed ordinance affects the oil companies business only in so far 134 as the Pandacan area is concerned. The oil companies are not prohibited from doing business in other appropriate zones in Manila. The City of Manila merely exercised its power to regulate the businesses and industries in the zones it established: As to the contention that the power to regulate does not include the power to prohibit, it will be seen that the ordinance copied above does not prohibit the installation of motor engines within the municipality of Cabanatuan but only within the zone therein fixed. If the municipal council of Cabanatuan is authorized to establish said zone, it is also authorized to provide what kind of engines may be installed therein. In banning the installation in said zone of all engines not excepted in the ordinance, the municipal council of 135 Cabanatuan did no more than regulate their installation by means of zonification. The oil companies aver that the ordinance is unfair and oppressive because they have invested billions of pesos in 136 the depot. Its forced closure will result in huge losses in income and tremendous costs in constructing new facilities. Their contention has no merit. In the exercise of police power, there is a limitation on or restriction of property interests to promote public welfare which involves no compensable taking. Compensation is necessary only when the states power of eminent domain is exercised. In eminent domain, property is appropriated and applied to some public purpose. Property condemned under the exercise of police power, on the other hand, is noxious or intended for 137 a noxious or forbidden purpose and, consequently, is not compensable. The restriction imposed to protect lives, public health and safety from danger is not a taking. It is merely the prohibition or abatement of a noxious use which interferes with paramount rights of the public. Property has not only an individual function, insofar as it has to provide for the needs of the owner, but also a social 138 function insofar as it has to provide for the needs of the other members of society. The principle is this: Police power proceeds from the principle that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the right of the community. Rights of property, like all other social and conventional rights, are subject to reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law as the legislature, under the governing and controlling power vested in 139 them by the constitution, may think necessary and expedient. In the regulation of the use of the property, nobody else acquires the use or interest therein, hence there is no 140 compensable taking. In this case, the properties of the oil companies and other businesses situated in the affected area remain theirs. Only their use is restricted although they can be applied to other profitable uses permitted in the commercial zone. Ordinance No. 8027 Is Not Partial And Discriminatory The oil companies take the position that the ordinance has discriminated against and singled out the Pandacan Terminals despite the fact that the Pandacan area is congested with buildings and residences that do not comply with 141 the National Building Code, Fire Code and Health and Sanitation Code. This issue should not detain us for long. An ordinance based on reasonable classification does not violate the 142 constitutional guaranty of the equal protection of the law. The requirements for a valid and reasonable classification are: (1) it must rest on substantial distinctions; (2) it must be germane to the purpose of the law; (3) it must not be 143 limited to existing conditions only and (4) it must apply equally to all members of the same class. The law may treat and regulate one class differently from another class provided there are real and substantial 144 differences to distinguish one class from another. Here, there is a reasonable classification. We reiterate that what the ordinance seeks to prevent is a catastrophic devastation that will result from a terrorist attack. Unlike the depot, the surrounding community is not a high-value terrorist target. Any damage caused by fire or explosion occurring in those areas would be nothing compared to the damage caused by a fire or explosion in the depot itself. Accordingly, there is a substantial distinction. The enactment of the ordinance which provides for the cessation of the operations of these terminals removes the threat they pose. Therefore it is germane to the purpose of the ordinance. The classification is not limited to the conditions existing when the ordinance was enacted but to future conditions as well. Finally, the ordinance is applicable to all businesses and industries in the area it delineated. Ordinance No. 8027 is Not Inconsistent With RA 7638 And RA 8479 The oil companies and the DOE assert that Ordinance No. 8027 is unconstitutional because it contravenes RA 7638 145 146 (DOE Act of 1992) and RA 8479 (Downstream Oil Industry Deregulation Law of 1998). They argue that through RA 7638, the national legislature declared it a policy of the state "to ensure a continuous, adequate, and economic 147 supply of energy" and created the DOE to implement this policy. Thus, under Section 5 I, DOE is empowered to "establish and administer programs for the exploration, transportation, marketing, distribution, utilization, conservation, stockpiling, and storage of energy resources." Considering that the petroleum products contained in the

Pandacan Terminals are major and critical energy resources, they conclude that their administration, storage, 148 distribution and transport are of national interest and fall under DOEs primary and exclusive jurisdiction. They further assert that the terminals are necessary for the delivery of immediate and adequate supply of oil to its 149 recipients in the most economical way. Local legislation such as Ordinance No. 8027 (which effectively calls for the removal of these terminals) allegedly frustrates the state policy of ensuring a continuous, adequate, and economic 150 supply of energy expressed in RA 7638, a national law. Likewise, the ordinance thwarts the determination of the 151 DOE that the terminals operations should be merely scaled down and not discontinued. They insist that this should not be allowed considering that it has a nationwide economic impact and affects public interest transcending the 152 territorial jurisdiction of the City of Manila. According to them, the DOEs supervision over the oil industry under RA 7638 was subsequently underscored by RA 8479, particularly in Section 7 thereof: SECTION 7. Promotion of Fair Trade Practices. The Department of Trade and Industry (DTI) and DOE shall take all measures to promote fair trade and prevent cartelization, monopolies, combinations in restraint of trade, and any unfair competition in the Industry as defined in Article 186 of the Revised Penal Code, and Articles 168 and 169 of Republic Act No. 8293, otherwise known as the "Intellectual Property Rights Law".The DOE shall continue to encourage certain practices in the Industry which serve the public interest and are intended to achieve efficiency and cost reduction, ensure continuous supply of petroleum products, and enhance environmental protection. These practices may include borrow-and-loan agreements, rationalized depot and manufacturing operations, hospitality agreements, joint tanker and pipeline utilization, and joint actions on oil spill control and fire prevention. (Emphasis supplied) 153 Respondent counters that DOEs regulatory power does not preclude LGUs from exercising their police power. Indeed, ordinances should not contravene existing statutes enacted by Congress. The rationale for this was clearly 154 explained in Magtajas vs. Pryce Properties Corp., Inc.: The rationale of the requirement that the ordinances should not contravene a statute is obvious. Municipal governments are only agents of the national government. Local councils exercise only delegated legislative powers conferred on them by Congress as the national lawmaking body. The delegate cannot be superior to the principal or exercise powers higher than those of the latter. It is a heresy to suggest that the local government units can undo the acts of Congress, from which they have derived their power in the first place, and negate by mere ordinance the mandate of the statute. "Municipal corporations owe their origin to, and derive their powers and rights wholly from the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy. As it may destroy, it may abridge and control. Unless there is some constitutional limitation on the right, the legislature might, by a single act, and if we can suppose it capable of so great a folly and so great a wrong, sweep from existence all of the municipal corporations in the State, and the corporation could not prevent it. We know of no limitation on the right so far as to the corporation themselves are concerned. They are, so to phrase it, the mere tenants at will of the legislature." This basic relationship between the national legislature and the local government units has not been enfeebled by the new provisions in the Constitution strengthening the policy of local autonomy. Without meaning to detract from that policy, we here confirm that Congress retains control of the local government units although in significantly reduced degree now than under our previous Constitutions. The power to create still includes the power to destroy. The power to grant still includes the power to withhold or recall. True, there are certain notable innovations in the Constitution, like the direct conferment on the local government units of the power to tax, which cannot now be withdrawn by mere statute. By and large, however, the national legislature is still the principal of the local government units, which cannot defy its will 155 or modify or violate it. The question now is whether Ordinance No. 8027 contravenes RA 7638 and RA 8479. It does not. Under Section 5 I of RA 7638, DOE was given the power to "establish and administer programs for the exploration, transportation, marketing, distribution, utilization, conservation, stockpiling, and storage of energy resources." On the other hand, under Section 7 of RA 8749, the DOE "shall continue to encourage certain practices in the Industry which serve the public interest and are intended to achieve efficiency and cost reduction, ensure continuous supply of petroleum products." Nothing in these statutes prohibits the City of Manila from enacting ordinances in the exercise of its police power. The principle of local autonomy is enshrined in and zealously protected under the Constitution. In Article II, Section 25 thereof, the people expressly adopted the following policy: Section 25. The State shall ensure the autonomy of local governments. An entire article (Article X) of the Constitution has been devoted to guaranteeing and promoting the autonomy of LGUs. The LGC was specially promulgated by Congress to ensure the autonomy of local governments as mandated by the Constitution: Sec. 2. Declaration of Policy. (a) It is hereby declared the policy of the State that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals. Toward this end, the State shall provide for a more

responsive and accountable local government structure instituted through a system of decentralization whereby local government units shall be given more powers, authority, responsibilities, and resources. The process of decentralization shall proceed from the National Government to the local government units. (Emphasis supplied) We do not see how the laws relied upon by the oil companies and DOE stripped the City of Manila of its power to enact ordinances in the exercise of its police power and to reclassify the land uses within its jurisdiction. To guide us, we shall make a brief survey of our decisions where the police power measure of the LGU clashed with national laws. 156 In Tan v. Perea, the Court ruled that Ordinance No. 7 enacted by the municipality of Daanbantayan, Cebu allowing the operation of three cockpits was invalid for violating PD 449 (or the Cockfighting Law of 1974) which permitted only one cockpit per municipality. 157 In Batangas CATV, Inc. v. Court of Appeals, the Sangguniang Panlungsod of Batangas City enacted Resolution No. 210 granting Batangas CATV, Inc. a permit to operate a cable television (CATV) system in Batangas City. The Court held that the LGU did not have the authority to grant franchises to operate a CATV system because it was the National Telecommunications Commission (NTC) that had the power under EO Nos. 205 and 436 to regulate CATV operations. EO 205 mandated the NTC to grant certificates of authority to CATV operators while EO 436 vested on the NTC the power to regulate and supervise the CATV industry. 158 In Lina, Jr. v. Pao, we held that Kapasiyahan Bilang 508, Taon 1995 of the Sangguniang Panlalawigan of Laguna could not be used as justification to prohibit lotto in the municipality of San Pedro, Laguna because lotto was duly authorized by RA 1169, as amended by BP 42. This law granted a franchise to the Philippine Charity Sweepstakes Office and allowed it to operate lotteries. 159 In Magtajas v. Pryce Properties Corp., Inc., the Sangguniang Panlungsod of Cagayan de Oro City passed Ordinance Nos. 3353 and 3375-93 prohibiting the operation of casinos in the city. We ruled that these ordinances were void for contravening PD 1869 or the charter of the Philippine Amusements and Gaming Corporation which had the power to operate casinos. The common dominator of all of these cases is that the national laws were clearly and expressly in conflict with the ordinances/resolutions of the LGUs. The inconsistencies were so patent that there was no room for doubt. This is not the case here. The laws cited merely gave DOE general powers to "establish and administer programs for the exploration, transportation, marketing, distribution, utilization, conservation, stockpiling, and storage of energy resources" and "to encourage certain practices in the [oil] industry which serve the public interest and are intended to achieve efficiency and cost reduction, ensure continuous supply of petroleum products." These powers can be exercised without emasculating the LGUs of the powers granted them. When these ambiguous powers are pitted against the unequivocal power of the LGU to enact police power and zoning ordinances for the general welfare of its constituents, it is not difficult to rule in favor of the latter. Considering that the powers of the DOE regarding the Pandacan Terminals are not categorical, the doubt must be resolved in favor of the City of Manila: SECTION 5. Rules of Interpretation. In the interpretation of the provisions of this Code, the following rules shall apply: (a) Any provision on a power of a local government unit shall be liberally interpreted in its favor, and in case of doubt, any question thereon shall be resolved in favor of devolution of powers and of the lower local government unit. Any fair and reasonable doubt as to the existence of the power shall be interpreted in favor of the local government unit concerned; xxx xxx xxx (g) IThe general welfare provisions in this Code shall be liberally interpreted to give more powers to local government units in accelerating economic development and upgrading the quality of life for the people in the community xxxx The least we can do to ensure genuine and meaningful local autonomy is not to force an interpretation that negates powers explicitly granted to local governments. To rule against the power of LGUs to reclassify areas within their jurisdiction will subvert the principle of local autonomy guaranteed by the 160 Constitution. As we have noted in earlier decisions, our national officials should not only comply with the constitutional provisions on local autonomy but should also appreciate the spirit and liberty upon which these 161 provisions are based. The DOE Cannot Exercise The Power Of Control Over LGUs Another reason that militates against the DOEs assertions is that Section 4 of Article X of the Constitution confines the Presidents power over LGUs to one of general supervision: SECTION 4. The President of the Philippines shall exercise general supervision over local governments. Xxxx 162 Consequently, the Chief Executive or his or her alter egos, cannot exercise the power of control over them. Control and supervision are distinguished as follows: [Supervision] means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the former may take such action or step as prescribed by law to make them perform their duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer ha[s] done in the performance of his 163 duties and to substitute the judgment of the former for that of the latter.

Supervisory power, when contrasted with control, is the power of mere oversight over an inferior body; it does not 164 include any restraining authority over such body. It does not allow the supervisor to annul the acts of the 165 subordinate. Here, what the DOE seeks to do is to set aside an ordinance enacted by local officials, a power that not even its principal, the President, has. This is because: Under our present system of government, executive power is vested in the President. The members of the Cabinet and other executive officials are merely alter egos. As such, they are subject to the power of control of the President, at whose will and behest they can be removed from office; or their actions and decisions changed, suspended or reversed. In contrast, the heads of political subdivisions are elected by the people. Their sovereign powers emanate from the electorate, to whom they are directly accountable. By constitutional fiat, they are subject to the Presidents supervision only, not control, so long as their acts are exercised within the sphere of their legitimate powers. By the same token, the President may not withhold or 166 alter any authority or power given them by the Constitution and the law. Thus, the President and his or her alter egos, the department heads, cannot interfere with the activities of local governments, so long as they act within the scope of their authority. Accordingly, the DOE cannot substitute its own discretion for the discretion exercised by the sanggunian of the City of Manila. In local affairs, the wisdom of local 167 officials must prevail as long as they are acting within the parameters of the Constitution and the law. Ordinance No. 8027 Is Not Invalid For Failure To Comply With RA 7924 And EO 72 The oil companies argue that zoning ordinances of LGUs are required to be submitted to the Metropolitan Manila Development Authority (MMDA) for review and if found to be in compliance with its metropolitan physical framework plan and regulations, it shall endorse the same to the Housing and Land Use Regulatory Board (HLURB). Their basis 168 is Section 3 (e) of RA 7924: SECTION 3. Scope of MMDA Services. Metro-wide services under the jurisdiction of the MMDAare those services which have metro-wide impact and transcend local political boundaries or entail huge expenditures such that it would not be viable for said services to be provided by the individual [LGUs] comprising Metropolitan Manila. These services shall include: xxx xxx xxx (g) Urban renewal, zoning, and land use planning, and shelter services which include the formulation, adoption and implementation of policies, standards, rules and regulations, programs and projects to rationalize and optimize urban land use and provide direction to urban growth and expansion, the rehabilitation and development of slum and blighted areas, the development of shelter and housing facilities and the provision of necessary social services thereof. (Emphasis supplied) Reference was also made to Section 15 of its implementing rules: Section 15. Linkages with HUDCC, HLURB, NHA, LGUs and Other National Government Agencies Concerned on Urban Renewal, Zoning and Land Use Planning and Shelter Services. Within the context of the National Housing and Urban Development Framework, and pursuant to the national standards, guidelines and regulations formulated by the Housing and Land Use Regulatory Board [HLURB] on land use planning and zoning, the [MMDA] shall prepare a metropolitan physical framework plan and regulations which shall complement and translate the socio-economic development plan for Metro Manila into physical or spatial terms, and provide the basis for the preparation, review, integration and implementation of local land use plans and zoning, ordinance of cities and municipalities in the area. Said framework plan and regulations shall contain, among others, planning and zoning policies and procedures that shall be observed by local government units in the preparation of their own plans and ordinances pursuant to Section 447 and 458 of RA 7160, as well as the identification of sites and projects that are considered to be of national or metropolitan significance. Cities and municipalities shall prepare their respective land use plans and zoning ordinances and submit the same for review and integration by the [MMDA] and indorsement to HLURB in accordance with Executive Order No. 72 and other pertinent laws. In the preparation of a Metropolitan Manila physical framework plan and regulations, the [MMDA] shall coordinate with the Housing and Urban Development Coordinating Council, HLURB, the National Housing Authority, Intramuros Administration, and all other agencies of the national government which are concerned with land use and zoning, urban renewal and shelter services. (Emphasis supplied) 169 They also claim that EO 72 provides that zoning ordinances of cities and municipalities of Metro Manila are subject to review by the HLURB to ensure compliance with national standards and guidelines. They cite Section 1, paragraphs I, (e), (f) and (g): SECTION 1. Plan formulation or updating. xxx xxx xxx (g) Cities and municipalities of Metropolitan Manila shall continue to formulate or update their respective comprehensive land use plans, in accordance with the land use planning and zoning standards and guidelines prescribed by the HLURB pursuant to EO 392, S. of 1990, and other pertinent national policies. xxx xxx xxx

(e) Pursuant to LOI 729, S. of 1978, EO 648, S. of 1981, and RA 7279, the comprehensive land use plans of provinces, highly urbanized cities and independent component cities shall be reviewed and ratified by the HLURB to ensure compliance with national standards and guidelines. (f) Pursuant to EO 392, S. of 1999, the comprehensive land use plans of cities and municipalities of Metropolitan Manila shall be reviewed by the HLURB to ensure compliance with national standards and guidelines. (g) Said review shall be completed within three (3) months upon receipt thereof otherwise, the same shall be deemed consistent with law, and, therefore, valid. (Emphasis supplied) They argue that because Ordinance No. 8027 did not go through this review process, it is invalid. The argument is flawed. RA 7942 does not give MMDA the authority to review land use plans and zoning ordinances of cities and municipalities. This was only found in its implementing rules which made a reference to EO 72. EO 72 expressly refers to comprehensive land use plans (CLUPs) only. Ordinance No. 8027 is admittedly not a CLUP nor intended to be one. Instead, it is a very specific ordinance which reclassified the land use of a defined area in order to prevent the massive effects of a possible terrorist attack. It is Ordinance No. 8119 which was explicitly formulated as the "Manila [CLUP] and Zoning Ordinance of 2006." CLUPs are the ordinances which should be submitted to the MMDA for integration in its metropolitan physical framework plan and approved by the HLURB to ensure that they conform with national guidelines and policies. Moreover, even assuming that the MMDA review and HLURB ratification are necessary, the oil companies did not present any evidence to show that these were not complied with. In accordance with the presumption of validity in favor of an ordinance, its constitutionality or legality should be upheld in the absence of proof showing that the procedure prescribed by law was not observed. The burden of proof is on the oil companies which already had notice that this Court was inclined to dispose of all the issues in this case. Yet aside from their bare assertion, they did not present any certification from the MMDA or the HLURB nor did they append these to their pleadings. Clearly, they 170 failed to rebut the presumption of validity of Ordinance No. 8027. Conclusion Essentially, the oil companies are fighting for their right to property. They allege that they stand to lose billions of pesos if forced to relocate. However, based on the hierarchy of constitutionally protected rights, the right to life enjoys 171 precedence over the right to property. The reason is obvious: life is irreplaceable, property is not. When the state 172 or LGUs exercise of police power clashes with a few individuals right to property, the former should prevail. Both law and jurisprudence support the constitutionality and validity of Ordinance No. 8027. Without a doubt, there are no impediments to its enforcement and implementation. Any delay is unfair to the inhabitants of the City of Manila and its leaders who have categorically expressed their desire for the relocation of the terminals. Their power to chart and control their own destiny and preserve their lives and safety should not be curtailed by the inter venors warnings of doomsday scenarios and threats of economic disorder if the ordinance is enforced. Secondary to the legal reasons supporting the immediate implementation of Ordinance No. 8027 are the policy considerations which drove Manilas government to come up with such a measure: ... [The] oil companies still were not able to allay the apprehensions of the city regarding the security threat in the area in general. No specific action plan or security measures were presented that would prevent a possible large-scale terrorist or malicious attack especially an attack aimed at Malacaang. The measures that were installed were more directed towards their internal security and did not include the prevention of an external attack even on a bilateral level of cooperation between these companies and the police and military. xxx xxx xxx It is not enough for the city government to be told by these oil companies that they have the most sophisticated fire-fighting equipments and have invested millions of pesos for these equipments. The city government wants to be assured that its residents are safe at any time from these installations, and in the three public hearings and in their position papers, not one statement has been said that indeed the absolute 173 safety of the residents from the hazards posed by these installations is assured. We are also putting an end to the oil companies determination to prolong their stay in Pandacan despite the objections of Manilas residents. As early as October 2001, the oil companies signed a MOA with the DOE obliging themselves to: ... undertake a comprehensive and comparative study ... [which] shall include the preparation of a Master Plan, whose aim is to determine the scope and timing of the feasible location of the Pandacan oil terminals and all associated facilities and infrastructure including government support essential for the relocation such as the necessary transportation infrastructure, land and right of way acquisition, resettlement of displaced residents and environmental and social acceptability which shall be based on mutual benefit of the Parties 174 and the public. Now that they are being compelled to discontinue their operations in the Pandacan Terminals, they cannot feign unreadiness considering that they had years to prepare for this eventuality. Just the same, this Court is not about to provoke a crisis by ordering the immediate relocation of the Pandacan Terminals out of its present site. The enforcement of a decision of this Court, specially one with far-reaching consequences, should always be within the bounds of reason, in accordance with a comprehensive and well-

coordinated plan, and within a time-frame that complies with the letter and spirit of our resolution. To this end, the oil companies have no choice but to obey the law. A Warning To Petitioners Counsel We draw the attention of the parties to a matter of grave concern to the legal profession. Petitioners and their counsel, Atty. Samson Alcantara, submitted a four-page memorandum that clearly contained either substance nor research. It is absolutely insulting to this Court. We have always tended towards judicial leniency, temperance and compassion to those who suffer from a wrong perception of what the majesty of the law means. But for a member of the bar, an officer of the court, to file in this Court a memorandum of such unacceptable quality is an entirely different matter. It is indicative less of a personal shortcoming or contempt of this Court and more of a lawyers sorry descent from a high sense of duty and responsibility. As a member of the bar and as an officer of the court, a lawyer ought to be keenly aware that the chief safeguard of the body politic is respect for the law and its magistrates. There is nothing more effective than the written word by which counsel can persuade this Court of the righteousness of his cause. For if truth were self-evident, a memorandum would be completely unnecessary and superfluous. The inability of counsel to prepare a memorandum worthy of this Courts consideration is an ejemplo malo to the legal profession as it betrays no genuine interest in the cause he claims to espouse. Or did counsel think he can earn his moment of glory without the hard work and dedication called for by his petition? A Final Word On Wednesday, January 23, 2008, a defective tanker containing 2,000 liters of gasoline and 14,000 liters of diesel exploded in the middle of the street a short distance from the exit gate of the Pandacan Terminals, causing death, extensive damage and a frightening conflagration in the vicinity of the incident. Need we say anthing about what will 175 happen if it is the estimated 162 to 211 million liters of petroleum products in the terminal complex which blow up? WHEREFORE, the motions for leave to intervene of Chevron Philippines Inc., Petron Corporation and Pilipinas Shell Petroleum Corporation, and the Republic of the Philippines, represented by the Department of Energy, are hereby GRANTED. Their respective motions for reconsideration are hereby DENIED. The Regional Trial Court, Manila, Branch 39 is ORDERED to DISMISS the consolidated cases of Civil Case No. 03-106377 and Civil Case No. 03-106380. We reiterate our order to respondent Mayor of the City of Manila to enforce Ordinance No. 8027. In coordination with the appropriate agencies and other parties involved, respondent Mayor is hereby ordered to oversee the relocation and transfer of the Pandacan Terminals out of its present site. To ensure the orderly transfer, movement and relocation of assets and personnel, the intervenors Chevron Philippines Inc., Petron Corporation and Pilipinas Shell Petroleum Corporation shall, within a non-extendible period of ninety (90) days, submit to the Regional Trial Court of Manila, Branch 39, the comprehensive plan and relocation schedule which have allegedly been prepared. The presiding judge of Manila RTC, Branch 39 will monitor the strict enforcement of this resolution. Atty. Samson Alcantara is hereby ordered to explain within five (5) days from notice why he should not be disciplined for his refusal, or inability, to file a memorandum worthy of the consideration of this Court. Treble costs against petitioners counsel, Atty. Samson Alcantara. SO ORDERED. CIVIL SERVICE COMMISSION, G.R. No. 165121 Petitioner, Present: PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO, VELASCO, JR., NACHURA, REYES, and LEONARDO-DE CASTRO,JJ. Promulgated: February 14, 2008

- versus -

PETER E. NIERRAS, Respondent.

x --------------------------------------------------x DECISION QUISUMBING, J.: This is a petition for review on certiorari seeking to annul and set aside the partially amended [1] Decision dated July 27, 2004 rendered by the Court of Appeals in CA-G.R. SP No. 64122, which reduced to six months without pay the penalty of dismissal imposed on Nierras by the Civil Service Commission (CSC). The dramatis personae in this case are complainant Olga C. Oa, a secretary of the Local Water Utilities Administration (LWUA), and respondent Peter E.Nierras, the Acting General Manager of the Metro Carigara Water District, Leyte. The antecedent facts of the case are as follows: On July 17, 1994, Oa left for Leyte upon orders from her Department Manager, Hector Dayrit, to assist in the formation of the San Isidro Water District. Upon arrival in Tacloban City, Oa was endorsed by the LWUA management adviser to Nierras. On July 18, 1994, Oa and Nierras proceeded to San Isidro, Leyte, where she held a briefing for the local officials. After the official briefing, Oa asked Nierras where the municipal mayor would accommodate her. Nierras replied that he would accommodate her in his farm in Calubian. They then took a motorcycle to Calubianwhere, according to Oa, Nierras already made passes at her. In Calubian, they first deposited their personal belongings in the house of Nierras cousin where he said they would stay for the night. Thereafter, they proceeded to Nierras farm. Upon their arrival, Nierras asked a tenant to purchase liquor and invited the other tenants to a drinking spree. Around 10:30 p.m., Oa, already tired and sleepy, reminded Nierras that they should go back to his cousins house to retire for the night. However, instead of going back, Nierras gave her a sleeping mat, a blanket and a pillow and was told to rest. She then left and chose a corner in the balcony of the house in the farm to sleep. Around midnight, Oa was awakened when Nierras lay down beside her and crept underneath her blanket. To her surprise, she saw that Nierras was half-naked with his pants already unzipped. She tried to run away but Nierras pulled her and ordered her to go back to sleep. It was only when she screamed Ayoko, Ayoko,Ayoko! that Nierras stopped grabbing and pulling her. For his part, Nierras denied the charge and averred that when they were about to go back to the house of Nierras cousin, Oa insisted that it would just be better if they slept at the farm. Nierras then managed to borrow one blanket, one pillow and one mat. Thereafter, they lay down on the same mat and started conversing. During their conversation, Oa said that she badly needed P5,000 at the moment. Oa asked Nierras if he could lend her the money. Shocked by what Oa said, Nierras just laughed and expressed his amazement through a sarcastic smile. Thereafter, Oa never talked anymore to Nierras. After about an hour, Nierras said he saw that a part of the blanket was not being used by Oa. Because of the weather and the swarm of mosquitoes, Nierras asked if he could use a part of the blanket. Oa kept mum so he managed to use the unused part of the blanket to cover part of himself to lessen mosquito bites. When Oa felt that Nierras was using a part of the blanket, she immediately stood up, bringing with her the pillow. She never came back to the place where she slept. [2] On August 11, 1994, Oa filed an incident report addressed to the Administrator of the LWUA, charging Nierras with sexual harassment. She also implicated her immediate supervisors, Hector Dayrit and Francisco Bula, Jr., in the charge for possible collusion and conspiracy for failure to act on her complaint despite being informed of what Nierras did to her. [3] On October 28, 1994, Oa filed with the CSC an affidavit for sexual harassment, grave misconduct and conduct unbecoming a public officer. After a prior investigation, the CSC formally charged Nierras with grave misconduct after finding a prima facie case against him. But finding no evidence of collusion with him, the CSC dismissed the complaint against Dayrit and Bula. [4] On September 29, 2000, the CSC found Nierras guilty of Grave Misconduct. The dispositive portion of the decision states: WHEREFORE, Peter E. Nierras is hereby found GUILTY of Grave Misconduct and is meted the penalty of dismissal from the service with all the accessory penalties. Let a copy of this Resolution as well as other relevant documents be furnished the Office of [5] the Ombudsman for whatever criminal action it may take under the premises. Nierras moved for reconsideration; however, the same was denied. Hence, he appealed to the Court of Appeals. [6] On March 5, 2004, the Court of Appeals promulgated a decision affirming the resolutions issued by the CSC finding Nierras guilty of grave misconduct through sexual harassment and upheld the penalty of dismissal imposed upon him. [7] Nierras filed a Motion for Reconsideration dated March 30, 2004, asking the Court of Appeals to reverse its decision and reduce the penalty of dismissal. OnJuly 27, 2004, the Court of Appeals rendered the partially amended decision reducing the penalty of dismissal to suspension of six months without pay on the basis of the Resolution [8] dated July 8, 2004 of this Court in Veloso v. Caminade. The dispositive portion of the said decision states:

WHEREFORE, our Decision promulgated on March 5, 2004 is hereby PARTIALLY AMENDED by reducing the penalty of dismissal imposed on the petitioner by the Civil Service Commission to SIX (6) MONTHS of SUSPENSION WITHOUT PAY. [9] SO ORDERED. Hence, the instant petition, wherein petitioner poses a single issue for our resolution: WHICH IS THE APPLICABLE RULING IN THE FACTS OF THIS CASE: VELOSO V. CAMINADE, 434 SCRA 1 (2004) OR SIMBAJON V. ESTEBAN, 312 SCRA 192 (1999),DAWA V. ASA, 292 [10] SCRA 701 (1998) AND ANALOGOUS DECISIONS. Simply put, the question raised could be restated as follows: Did the acts of respondent constitute grave misconduct that warrant his dismissal from the service? Petitioner prays that we sustain the original decision of the Court of Appeals penalizing Nierras with dismissal, and not merely a six-month suspension without salary for immoral conduct. For his part, respondent Nierras contends that the penalty to be meted to him should be equivalent to or even less than what has been meted by this Court on Judge Caminade in the case of Veloso v. Caminade, because in the said case more complaints of sexual harassments were filed against the judge and the standard of morality expected of a judge is more exacting than that expected of an ordinary officer of the government. Misconduct refers to intentional wrongdoing or deliberate violation of a rule of law or standard of behavior, especially by a government official. To constitute an administrative offense, misconduct should relate to, or be connected with, the performance of the official functions and duties of a public officer. Grave misconduct is distinguished from simple misconduct in that the elements of corruption, clear intent to violate the law or flagrant [11] disregard of established rule must be manifest in grave misconduct. [12] Otherwise stated, the misconduct is grave if it involves the additional element of corruption. Corruption as an element of grave misconduct consists of the act of an official or fiduciary person who unlawfully and wrongfully uses his station or character to procure some benefit for himself or for another person, contrary to duty and the rights [13] of others. In this case, we find that the element of corruption is absent. Nierras did not use his position as Acting General Manager of the Metro Carigara Water District in the act of sexually harassing Oa. In fact, it is established that Nierras and Oa are not employed or connected with the same agency or instrumentality of the government. While this fact would not negate the possibility that sexual harassment could be committed by one against the other, the same would not warrant the dismissal of the offender because he did not use his position to procure sexual favors from Oa. [14] Under CSC Memorandum Circular No. 19, Series of 1994, sexual harassment does not necessarily or automatically constitute grave misconduct. Besides, under paragraph 2 of Section 1 thereof, sexual harassment constitutes a ground for disciplinary action under the offense of Grave Misconduct, Conduct Prejudicial to the Best Interest of the Service, or Simple Misconduct. Petitioner alleged that the Court of Appeals erred in applying the case of Veloso v. Caminade in imposing the proper penalty on Nierras since the facts of the case are different. Indeed, it should be noted that in the instant case, Oa and Nierras are not co-employees while in the Caminade case, the complainants were the subordinates of the offender. Also, in the Caminade case, there were several incidents of sexual harassment by a judge from whom the expected standard of morality was more exacting. But here, there was only one incident of sexual harassment. If a six-month suspension can be meted to a judge from whom the expected standard of morality is more exacting, a fortiori, the same or lesser penalty should be meted to Nierras. Moreover, in the Caminade case, the offender actually forcefully kissed and grabbed the complainants. However, in this case, Oa was able to flee from the arms of Nierras even before he could cause more harm to her. Under the circumstances of the present case, we agree with the Court of Appeals that suspension of the offender for a period of six (6) months without pay is sufficient penalty. Clearly, there is no doubt that the act of Nierras constituted misconduct. However, it would be inappropriate to impose on him the penalty of dismissal from the service. Section 16, Rule XIV of the Rules Implementing Book V of Executive Order No. 292 provides that in the determination of penalties to be imposed, mitigating and aggravating [15] circumstances may be considered. Considering the fact that this is the first time that Nierras is being administratively charged, it would be too harsh to impose on him the penalty of dismissal outright. Worth noting, in the case of Civil [16] Service Commission v. Belagan, although the Court found that the act of the offending public official constituted grave [17] misconduct, still it did not impose the penalty of dismissal on him, considering the fact that it was his first offense. The law does not tolerate misconduct by a civil servant. It should be sanctioned. Public service is a public trust and whoever breaks that trust is subject to penalty. The issue, however, concerns the appropriate penalty. Dismissal with forfeiture of benefits, in our view, should not be imposed for all infractions involving misconduct, particularly when [18] it is a first offense as in the instant case. To conclude, given the circumstances of this case and of the precedents cited, we are in agreement that suspension of respondent for six (6) months without pay is sufficient penalty. WHEREFORE, the petition is hereby DISMISSED. The assailed Decision dated July 27, 2004 of the Court of Appeals is AFFIRMED. SO ORDERED.

MA. LOURDES T. DOMINGO, Petitioner, - versus ROGELIO I. RAYALA, Respondent. x-------------------------x ROGELIO I. RAYALA, Petitioner, - versus OFFICE OF THE PRESIDENT; RONALDO V. ZAMORA, in his capacity as Executive Secretary; ROY V. SENERES, in his capacity as Chairman of the National Labor Relations Commission (in lieu of RAUL T. AQUINO, in his capacity as Acting Chairman of the National labor Relations Commission); and MA. LOURDES T. DOMINGO, Respondents. x-------------------------x The REPUBLIC OF THE PHILIPPINES, represented by the OFFICE OF THE PRESIDENT; and ALBERTO G. ROMULO, in his capacity as Executive Secretary, Petitioners,

G.R. No. 155831

G.R. No. 155840

G.R. No. 158700 Present:

- versus -

ROGELIO I. RAYALA, Respondent.

YNARES-SANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ, * CORONA, NACHURA, and REYES, JJ. Promulgated: February 18, 2008

x------------------------------------------------------------------------------------x

DECISION NACHURA, J.:

Sexual harassment is an imposition of misplaced superiority which is enough to dampen an employees [1] spirit and her capacity for advancement. It affects her sense of judgment; it changes her life. Before this Court are three Petitions for Review on Certiorari assailing the October 18, 2002 Resolution of [2] the CAs Former Ninth Division in CA-G.R. SP No. 61026. The Resolution modified the December 14, 2001 [3] Decision of the Court of Appeals Eleventh Division, which had affirmed the Decision of the Office of the President (OP) dismissing from the service then National Labor Relations Commission (NLRC) Chairman Rogelio I. Rayala (Rayala) for disgraceful and immoral conduct. All three petitions stem from the same factual antecedents. On November 16, 1998, Ma. Lourdes T. Domingo (Domingo), then Stenographic Reporter III at the NLRC, filed a Complaint for sexual harassment against Rayala before Secretary Bienvenido Laguesma of the Department of Labor and Employment (DOLE).

To support the Complaint, Domingo executed an Affidavit narrating the incidences of sexual harassment complained of, thus: xxxx 4. Sa simula ay pabulong na sinasabihan lang ako ni Chairman Rayala ng mga salitang Lot, gumaganda ka yata? Sa ibang mga pagkakataon nilalapitan na ako ni Chairman at hahawakan ang aking balikat sabay pisil sa mga ito habang ako ay nagta-type at habang nagbibigay siya ng diktasyon. Sa mga pagkakataong ito, kinakabahan ako. Natatakot na baka mangyari sa akin ang mga napapabalitang insidente na nangyari na noon tungkol sa mga sekretarya niyang nagbitiw gawa ng mga mahahalay na panghihipo ni Chairman. Noong ika-10 ng Setyembre, 1998, nang ako ay nasa 8 Floor, may nagsabi sa akin na th kailangan akong bumaba sa 7 Floor kung nasaan ang aming opisina dahil sa may koreksyon daw na gagawin sa mga papel na tinayp ko. Bumaba naman ako para gawin ito. Habang ginagawa ko ito, lumabas si Chairman Rayala sa silid ni Mr. Alex Lopez. Inutusan ako ni Chairman na sumunod sa kaniyang silid. Nang nasa silid na kami, sinabi niya sa akin: Chairman: Lot, I like you a lot. Naiiba ka sa lahat.
th

5.

6.

At pagkatapos ako ay kaniyang inusisa tungkol sa mga personal na bagay sa aking buhay. Ang ilan dito ay tungkol sa aking mga magulang, kapatid, pag-aaral at kung may boyfriend na raw ba ako. Chairman: Lourdes: Chairman: Lourdes: Chairman: Lourdes: Chairman: May boyfriend ka na ba? Dati nagkaroon po. Nasaan na siya? Nag-asawa na ho. Bakit hindi kayo nagkatuluyan? Nainip po. Pagkatapos mo ng kurso mo ay kumuha ka ng Law at ako ang bahala sa iyo, hanggang ako pa ang Chairman dito.

Pagkatapos ay kumuha siya ng pera sa kaniyang amerikana at inaabot sa akin. Chairman: Lourdes: Chairman: Kuhanin mo ito. Huwag na ho hindi ko kailangan. Hindi sige, kuhanin mo. Ayusin mo ang dapat ayusin.

Tinanggap ko po ang pera ng may pag-aalinlangan. Natatakot at kinakabahan na kapag hindi ko tinanggap ang pera ay baka siya magagalit kasabay na rito ang pagtapon sa akin kung saan-saan opisina o kaya ay tanggalin ako sa posisyon. Chairman: Lourdes: Chairman: Paglabas mo itago mo ang pera. Ayaw ko ng may makaka-alam nito. Just the two of us. Bakit naman, Sir? Basta. Maraming tsismosa diyan sa labas. But I dont give them a damn. Hindi ako mamatay sa kanila.
th

Tumayo na ako at lumabas. Pumanhik na ako ng 8 Floor at pumunta ako sa officemate ko na si Agnes Magdaet. Ikinwento ko ang nangyari sa akin sa opisina ni Chairman. Habang kinikwento ko ito kay Agnes ay binilang namin ang pera na nagkakahalaga ng tatlong libong piso (PHP 3,000). Sinabi ni Agnes na isauli ko raw ang pera, pero ang sabi ko ay natatakot ako baka magalit si Sir. Nagsabi agad kami kay EC Perlita Velasco at sinalaysay ko ang nangyari. Sinabi niya na isauli ko ang pera at noong araw ding iyon ay nagpasiya akong isauli na nga ito ngunit hindi ako nagkaroon ng pagkakataon dahil marami siyang naging bisita. Isinauli ko nga ang pera noong Lunes, Setyembre 14, 1998.

7. Noong huling linggo ng Setyembre, 1998, ay may tinanong din sa akin si Chairman Rayala na hindi ko masikmura, at sa aking palagay at tahasang pambabastos sa akin. Chairman: Lourdes: Chairman: Lourdes: Chairman: Lourdes: Chairman: Lourdes: Chairman: Lot, may ka live-in ka ba? Sir, wala po. Bakit malaki ang balakang mo? Kayo, Sir ha! Masama sa amin ang may ka live-in. Bakit, ano ba ang relihiyon ninyo? Catholic, Sir. Kailangan ikasal muna. Bakit ako, hindi kasal. Sir, di magpakasal kayo. Huh. Ibahin na nga natin ang usapan.

8. Noong Oktubre 29, 1998, ako ay pumasok sa kwarto ni Chairman Rayala. Ito ay sa kadahilanang ang fax machine ay nasa loob ng kaniyang kwarto. Ang nag-aasikaso nito, si Riza Ocampo, ay naka-leave kaya ako ang nag-asikaso nito noong araw na iyon. Nang mabigyan ko na ng fax tone yung kausap ko, pagharap ko sa kanan ay nakaharang sa dadaanan ko si Chairman Rayala. Tinitingnan ako sa mata at ang titig niya ay umuusad mula ulo hanggang dibdib tapos ay ngumiti na may mahalay na pakahulugan. 9. Noong hapon naman ng pareho pa ring petsa, may nag-aapply na sekretarya sa opisina, sinabi ko ito kay Chairman Rayala: Lourdes: Chairman: Chairman: Sir, si Pinky po yung applicant, mag-papainterview po yata sa inyo. Sabihin mo magpa-pap smear muna siya O sige, i-refer mo kay Alex. (Alex Lopez, Chief of Staff).

10. Noong Nobyembre 9, 1998, ako ay tinawag ni Chairman Rayala sa kaniyang opisina upang kuhanin ko ang diktasyon niya para kay ELA Oscar Uy. Hindi pa kami nakakatapos ng unang talata, may pumasok na bisita si Chairman, si Baby Pangilinan na sinamahan ni Riza Ocampo. Pinalabas muna ako ni Chairman. Nang maka-alis na si Ms. Pangilinan, pinapasok na niya ako ulit. Umupo ako. Lumapit sa likuran ko si Chairman, hinawakan ang kaliwang balikat ko na pinipisil ng kanang kamay niya at sinabi: Chairman: Saan na ba tayo natapos?

Palakad-lakad siya sa aking likuran habang nag-didikta. Huminto siya pagkatapos, at nilagay niya ang kanang kamay niya sa aking kanang balikat at pinisil-pisil ito pagkatapos ay pinagapang niya ito sa kanang bahagi ng aking leeg, at pinagapang hanggang kanang tenga at saka kiniliti. Dito ko inalis ang kaniyang kamay sa pamamagitan ng aking kaliwang kamay. At saka ko sinabi: Lourdes: Sir, yung kamay ninyo alisin niyo!

Natapos ko rin ang liham na pinagagawa niya pero halos hindi ko na maintindihan ang na[4] isulat ko dahil sa takot at inis na nararamdaman ko.

After the last incident narrated, Domingo filed for leave of absence and asked to be immediately transferred. Thereafter, she filed the Complaint for sexual harassment on the basis of Administrative Order No. 250, the Rules and Regulations Implementing RA 7877 in the Department of Labor and Employment . Upon receipt of the Complaint, the DOLE Secretary referred the Complaint to the OP, Rayala being a presidential appointee. The OP, through then Executive Secretary Ronaldo Zamora, ordered Secretary Laguesma to investigate the allegations in the Complaint and create a committee for such purpose. On December 4, 1998, [5] Secretary Laguesma issued Administrative Order (AO) No. 280, Series of 1998, constituting a Committee on Decorum and Investigation (Committee) in accordance with Republic Act (RA) 7877, the Anti-Sexual Harassment Act [6] of 1995. The Committee heard the parties and received their respective evidence. On March 2, 2000, the Committee submitted its report and recommendation to Secretary Laguesma. It found Rayala guilty of the offense charged and

recommended the imposition of the minimum penalty provided under AO 250, which it erroneously stated as suspension for six (6) months. The following day, Secretary Laguesma submitted a copy of the Committee Report and Recommendation to the OP, but with the recommendation that the penalty should be suspension for six (6) months and one (1) day, in accordance with AO 250. On May 8, 2000, the OP, through Executive Secretary Zamora, issued AO 119, which read:
[7]

the pertinent portions of

Upon a careful scrutiny of the evidence on record, I concur with the findings of the Committee as to the culpability of the respondent [Rayala], the same having been established by clear and convincing evidence. However, I disagree with the recommendation that respondent be meted only the penalty of suspension for six (6) months and one (1) day considering the circumstances of the case. What aggravates respondents situation is the undeniable circumstance that he took advantage of his position as the superior of the complainant. Respondent occupies the highest position in the NLRC, being its Chairman. As head of said office, it was incumbent upon respondent to set an example to the others as to how they should conduct themselves in public office, to see to it that his subordinates work efficiently in accordance with Civil Service Rules and Regulations, and to provide them with healthy working atmosphere wherein co-workers treat each other with respect, courtesy and cooperation, so that in the end the public interest will be benefited (City Mayor of Zamboanga vs. Court of Appeals, 182 SCRA 785 [1990]). What is more, public service requires the utmost integrity and strictest discipline (Gano vs. Leonen, 232 SCRA 99 [1994]). Thus, a public servant must exhibit at all times the highest sense of honesty and integrity, and utmost devotion and dedication to duty (Sec. 4 (g), RA 6713), respect the rights of others and shall refrain from doing acts contrary to law, and good morals (Sec. 4(c)). No less than the Constitution sanctifies the principle that a public office is a public trust, and enjoins all public officers and employees to serve with the highest degree of responsibility, integrity, loyalty and efficiency (Section 1, Article XI, 1987 Constitution). Given these established standards, I see respondents acts not just [as] a failure to give due courtesy and respect to his co-employees (subordinates) or to maintain good conduct and behavior but defiance of the basic norms or virtues which a government official must at all times uphold, one that is contrary to law and public sense of morality. Otherwise stated, responde nt to whom stricter standards must apply being the highest official [of] the NLRC had shown an attitude, a frame of mind, a disgraceful conduct, which renders him unfit to remain in the service. WHEREFORE, in view of the foregoing, respondent Rogelio I. Rayala, Chairman, National Labor Relations Commission, is found guilty of the grave offense of disgraceful and immoral conduct and is hereby DISMISSED from the service effective upon receipt of this Order. SO ORDER[ED].
[8]

Rayala filed a Motion for Reconsideration, which the OP denied in a Resolution dated May 24, 2000. He then filed a Petition for Certiorari and Prohibition with Prayer for Temporary Restraining Order under Rule 65 of the [9] Revised Rules on Civil Procedure before this Court on June 14, 2000. However, the same was dismissed in a [10] Resolution dated June 26, 2000 for disregarding the hierarchy of courts. Rayala filed a Motion for [11] [12] Reconsideration on August 15, 2000. In its Resolution dated September 4, 2000, the Court recalled its June 26 Resolution and referred the petition to the Court of Appeals (CA) for appropriate action. The CA rendered its Decision on December 14, 2001. It held that there was sufficient evidence on record to create moral certainty that Rayala committed the acts he was charged with. It said: The complainant narrated her story complete with details. Her straightforward and uninhibited testimony was not emasculated by the declarations of Commissioner Rayala or his witnesses. x x x Moreover, Commissioner Rayala has not proven any vicious motive for Domingo and her witnesses to invent their stories. It is very unlikely that they would perjure themselves only to
[13]

accommodate the alleged conspiracy to oust petitioner from office. Save for his empty conjectures and speculations, Rayala failed to substantiate his contrived conspiracy. It is a hornbook doctrine that conspiracy must be proved by positive and convincing evidence ( People v. Noroa, 329 SCRA 502 [2000]). Besides, it is improbable that the complainant would concoct a story of sexual harassment against the highest official of the NLRC and thereby expose herself to the possibility of losing her job, or be the subject of reprisal from her superiors and perhaps public ridicule if she was not telling the truth. It also held that Rayalas dismissal was proper. The CA pointed out that Rayala was dismissed for disgraceful and immoral conduct in violation of RA 6713, the Code of Conduct and Ethical Standards for Public Officials and Employees. It held that the OP was correct in concluding that Rayalas acts violated RA 6713: Indeed, [Rayala] was a public official, holding the Chairmanship of the National Labor Relations Commission, entrusted with the sacred duty of administering justice. Occupying as he does such an exalted position, Commissioner Rayala must pay a high price for the honor bestowed upon him. He must comport himself at all times in such a manner that the conduct of his everyday life should be beyond reproach and free from any impropriety. That the acts complained of were committed within the sanctuary of [his] office compounded the objectionable nature of his wrongdoing. By daring to violate the complainant within the solitude of his chambers, Commissioner Rayala placed the integrity of his office in disrepute. His disgraceful and immoral [14] conduct warrants his removal from office.

Thus, it dismissed the petition, to wit: IN VIEW OF ALL THE FOREGOING, the instant petition is hereby DISMISSED and Administrative Order No. 119 as well [as] the Resolution of the Office of the President in O.P. Case No. 00-E-9118 dated May 24, 2000 are AFFIRMED IN TOTO. No cost. SO ORDERED.
[15]

Rayala timely filed a Motion for Reconsideration. Justices Vasquez and Tolentino voted to affirm the December 14 Decision. However, Justice Reyes dissented mainly because AO 250 states that the penalty imposable [16] is suspension for six (6) months and one (1) day. Pursuant to the internal rules of the CA, a Special Division of Five [17] was constituted. In its October 18, 2002 Resolution, the CA modified its earlier Decision: ACCORDINGLY, the Decision dated December [14], 2001 is MODIFIED to the effect that the penalty of dismissal is DELETED and instead the penalty of suspension from service for the maximum period of one (1) year is HEREBY IMPOSED upon the petitioner. The rest of the challenged decision stands. SO ORDERED.
[18]

Domingo filed a Petition for Review before this Court, which we denied in our February 19, 2003 Resolution for having a defective verification. She filed a Motion for Reconsideration, which the Court granted; hence, the petition was reinstated. Rayala likewise filed a Petition for Review of sexual harassment.
[19]

with this Court essentially arguing that he is not guilty of any act

Meanwhile, the Republic filed a Motion for Reconsideration of the CAs October 18, 2002 Resolution. The CA denied the same in its June 3, 2003 Resolution, the dispositive portion of which reads: ACCORDINGLY, by a majority vote, public respondents Motion for Reconsideration, (sic) is DENIED. SO ORDERED.

The Republic then filed its own Petition for Review.

[20]

On June 28, 2004, the Court directed the consolidation of the three (3) petitions. G.R. No. 155831 Domingo assails the CAs resolution modifying the penalty imposed by the Office of the President. She raises this issue: The Court of Appeals erred in modifying the penalty for the respondent from dismissal to suspension from service for the maximum period of one year. The President has the prerogative to determine the proper penalty to be imposed on an erring Presidential appointee. The President was well within his power when he fittingly used that prerogative in deciding to dismiss the respondent [21] from the service.

She argues that the power to remove Rayala, a presidential appointee, is lodged with the President who has control of the entire Executive Department, its bureaus and offices . The OPs decision was arrived at after affording [22] Rayala due process. Hence, his dismissal from the service is a prerogative that is entirely with the President. As to the applicability of AO No. 250, she argues that the same was not intended to cover cases against presidential appointees. AO No. 250 refers only to the instances wherein the DOLE Secretary is the disciplining authority, and thus, the AO does not circumscribe the power of the President to dismiss an erring presidential appointee. G.R. No. 155840 In his petition, Rayala raises the following issues: I. CONTRARY TO THE FINDINGS OF THE COURT OF APPEALS, THE ACTS OF HEREIN PETITIONER DO NOT CONSTITUTE SEXUAL HARASSMENT AS LAID DOWN BY THE En Banc RULING IN THE CASE OF AQUINO vs. ACOSTA, ibid., AS WELL AS IN THE APPLICATION OF EXISTING LAWS. CONTRARY TO THE FINDINGS OF THE HONORABLE COURT OF APPEALS, INTENT IS AN INDISPENSABLE ELEMENT IN A CASE FOR SEXUAL HARASSMENT. THE HONORABLE COURT ERRED IN ITS FINDING THAT IT IS AN OFFENSE THAT IS MALUM PROHIBITUM. THE INVESTIGATION COMMITTEE, THE OFFICE OF THE PRESIDENT, AND NOW, THE HONORABLE COURT OF APPEALS, HAS MISAPPLIED AND EXPANDED THE DEFINITION OF SEXUAL HARASSMENT IN THE WORKPLACE UNDER R.A. No. 7877, BY APPLYING DOLE A.O. 250, WHICH RUNS COUNTER TO THE RECENT [23] PRONOUNCEMENTS OF THIS HONORABLE SUPREME COURT.
[24]

II.

III.

Invoking Aquino v. Acosta, Rayala argues that the case is the definitive ruling on what constitutes sexual harassment. Thus, he posits that for sexual harassment to exist under RA 7877, there must be: (a) demand, request, or requirement of a sexual favor; (b) the same is made a pre-condition to hiring, re-employment, or continued employment; or (c) the denial thereof results in discrimination against the employee. Rayala asserts that Domingo has failed to allege and establish any sexual favor, demand, or request from petitioner in exchange for her continued employment or for her promotion. According to Rayala, the acts imputed to him are without malice or ulterior motive. It was merely Domingos perception of malice in his alleged acts a [25] product of her own imagination that led her to file the sexual harassment complaint. Likewise, Rayala assails the OPs interpretation, as upheld by the CA, that RA 7877 is malum prohibitum such that the defense of absence of malice is unavailing. He argues that sexual harassment is considered an offense against a particular person, not against society as a whole. Thus, he claims that intent is an essential element of the offense because the law requires as a conditio sine qua non that a sexual favor be first sought by the offender in order to achieve certain specific results. Sexual harassment is committed with the perpetrators deliberate [26] intent to commit the offense.

Rayala next argues that AO 250 expands the acts proscribed in RA 7877. In particular, he assails the definition of the forms of sexual harassment: Rule IV FORMS OF SEXUAL HARASSMENT Section 1. Forms of Sexual Harassment. Sexual harassment may be committed in any of the following forms: a) Overt sexual advances; b) Unwelcome or improper gestures of affection; c) Request or demand for sexual favors including but not limited to going out on dates, outings or the like for the same purpose; d) Any other act or conduct of a sexual nature or for purposes of sexual gratification [27] which is generally annoying, disgusting or offensive to the victim.

He posits that these acts alone without corresponding demand, request, or requirement do not constitute [28] sexual harassment as contemplated by the law. He alleges that the rule-making power granted to the employer in Section 4(a) of RA 7877 is limited only to procedural matters. The law did not delegate to the employer the power to promulgate rules which would provide other or additional forms of sexual harassment, or to come up with its own [29] definition of sexual harassment. G.R. No. 158700 The Republic raises this issue: Whether or not the President of the Philippines may validly dismiss respondent Rayala as [30] Chairman of the NLRC for committing acts of sexual harassment. The Republic argues that Rayalas acts constitute sexual harassment under AO 250. His acts constitute unwelcome or improper gestures of affection and are acts or conduct of a sexual nature, which are generally [31] annoying or offensive to the victim. It also contends that there is no legal basis for the CAs reduction of the penalty imposed by the OP. Rayalas dismissal is valid and warranted under the circumstances. The power to remove the NLRC Chairman solely rests upon the President, limited only by the requirements under the law and the due process clause. The Republic further claims that, although AO 250 provides only a one (1) year suspension, it will not prevent the OP from validly imposing the penalty of dismissal on Rayala. It argues that even though Rayala is a presidential appointee, he is still subject to the Civil Service Law. Under the Civil Service Law, disgraceful and immoral conduct, the acts imputed to Rayala, constitute grave misconduct punishable by dismissal from the [32] service. The Republic adds that Rayalas position is invested with public trust and his acts violated that trust; thus, he should be dismissed from the service. This argument, according to the Republic, is also supported by Article 215 of the Labor Code, which states [33] that the Chairman of the NLRC holds office until he reaches the age of 65 only during good behavior. Since Rayalas security of tenure is conditioned upon his good behavior, he may be removed from office if it is proven that he has failed to live up to this standard. All the issues raised in these three cases can be summed up in two ultimate questions, namely: (1) Did Rayala commit sexual harassment? (2) If he did, what is the applicable penalty?

Initially, however, we must resolve a procedural issue raised by Rayala. He accuses the Office of the Solicitor General (OSG), as counsel for the Republic, of forum shopping because it filed a motion for reconsideration of the decision in CA-G.R. SP No. 61026 and then filed a comment in G.R. No. 155840 before this Court. We do not agree. Forum shopping is an act of a party, against whom an adverse judgment or order has been rendered in one forum, of seeking and possibly securing a favorable opinion in another forum, other than by appeal or special civil [34] action for certiorari. It consists of filing multiple suits involving the same parties for the same cause of action, either [35] simultaneously or successively, for the purpose of obtaining a favorable judgment. There is forum shopping when the following elements concur: (1) identity of the parties or, at least, of the parties who represent the same interest in both actions; (2) identity of the rights asserted and relief prayed for, as the latter is founded on the same set of facts; and (3) identity of the two preceding particulars such that any judgment rendered in the other action will amount to res judicata in the action under consideration or will constitute litis [36] pendentia. Reviewing the antecedents of these consolidated cases, we note that the CA rendered the assailed Resolution on October 18, 2002. The Republic filed its Motion for Reconsideration on November 22, 2002. On the other hand, Rayala filed his petition before this Court on November 21, 2002. While the Republics Motion for Reconsideration was pending resolution before the CA, on December 2, 2002, it was directed by this Court to file its Comment on Rayalas petition, which it submitted on June 16, 2003. When the CA denied the Motion for Reconsideration, the Republic filed its own Petition for Review with this Court on July 3, 2003. It cited in its Certification and Verification of a Non -Forum Shopping (sic), that there was a case involving the same facts pending before this Court denominated as G.R. No. 155840. With respect to Domingos petition, the same had already been dismissed on February 19, 2003. Domingos petition was reinstated on June 16, [37] 2003 but the resolution was received by the OSG only on July 25, 2003, or after it had filed its own petition. Based on the foregoing, it cannot be said that the OSG is guilty of forum shopping. We must point out that it was Rayala who filed the petition in the CA, with the Republic as the adverse party. Rayala himself filed a motion for reconsideration of the CAs December 21, 2001 Decision, which led to a more favorable ruling, i.e., the lowering of the penalty from dismissal to one-year suspension. The parties adversely affected by this ruling (Domingo and the Republic) had the right to question the same on motion for reconsideration. But Domingo directly filed a Petition for Review with this Court, as did Rayala. When the Republic opted to file a motion for reconsideration, it was merely exercising a right. That Rayala and Domingo had by then already filed cases before the SC did not take away this right. Thus, when this Court directed the Republic to file its Comment on Rayalas petition, it had to comply, even if it had an unresolved motion for reconsideration with the CA, lest it be cited for contempt. Accordingly, it cannot be said that the OSG file[d] m ultiple suits involving the same parties for the same cause of action, either simultaneously or successively, for the purpose of obtaining a favorable judgment. We now proceed to discuss the substantive issues. It is noteworthy that the five CA Justices who deliberated on the case were unanimous in upholding the findings of the Committee and the OP. They found the assessment made by the Committee and the OP to be a meticulous and dispassionate analysis of the testimonies of the complainant (Domingo), the respondent (Rayala), [38] and their respective witnesses. They differed only on the appropriate imposable penalty. That Rayala committed the acts complained of and was guilty of sexual harassment is, therefore, the common factual finding of not just one, but three independent bodies: the Committee, the OP and the CA. It should be remembered that when supported by substantial evidence, factual findings made by quasi-judicial and [39] administrative bodies are accorded great respect and even finality by the courts. The principle, therefore, dictates [40] that such findings should bind us. Indeed, we find no reason to deviate from this rule. There appears no valid ground for this Court to review the factual findings of the CA, the OP, and the Investigating Committee. These findings are now conclusive on the Court. And quite significantly, Rayala himself admits to having committed some of the acts imputed to him. He insists, however, that these acts do not constitute sexual harassment, because Domingo did not allege in her complaint that there was a demand, request, or requirement of a sexual favor as a condition for her continued

employment or for her promotion to a higher position. [42] Acosta.

[41]

Rayala urges us to apply to his case our ruling in Aquino v.

We find respondents insistence unconvincing. Basic in the law of public officers is the three-fold liability rule, which states that the wrongful acts or omissions of a public officer may give rise to civil, criminal and administrative liability. An action for each can proceed [43] independently of the others. This rule applies with full force to sexual harassment. The law penalizing sexual harassment in our jurisdiction is RA 7877. Section 3 thereof defines work-related sexual harassment in this wise: Sec. 3. Work, Education or Training-related Sexual Harassment Defined. Work, education or training-related sexual harassment is committed by an employer, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said Act. (a) when: (1) The sexual favor is made as a condition in the hiring or in the employment, reemployment or continued employment of said individual, or in granting said individual favorable compensation, terms, conditions, promotions, or privileges; or the refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in a way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee; (2) laws; or (3) The above acts would result in an intimidating, hostile, or offensive environment for the employee. The above acts would impair the employees rights or privileges under existing labor In a work-related or employment environment, sexual harassment is committed

This section, in relation to Section 7 on penalties, defines the criminal aspect of the unlawful act of sexual harassment. The same section, in relation to Section 6, authorizes the institution of an independent civil action for damages and other affirmative relief. Section 4, also in relation to Section 3, governs the procedure for administrative cases, viz.: Sec. 4. Duty of the Employer or Head of Office in a Work-related, Education or Training Environment. It shall be the duty of the employer or the head of the work-related, educational or training environment or institution, to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment. Towards this end, the employer or head of office shall: (a) Promulgate appropriate rules and regulations in consultation with and jointly approved by the employees or students or trainees, through their duly designated representatives, prescribing the procedure for the investigation or sexual harassment cases and the administrative sanctions therefor. Administrative sanctions shall not be a bar to prosecution in the proper courts for unlawful acts of sexual harassment. The said rules and regulations issued pursuant to this section (a) shall include, among others, guidelines on proper

decorum in the workplace and educational or training institutions. (b) Create a committee on decorum and investigation of cases on sexual harassment. The committee shall conduct meetings, as the case may be, with other officers and employees, teachers, instructors, professors, coaches, trainors and students or trainees to increase understanding and prevent incidents of sexual harassment. It shall also conduct the investigation of the alleged cases constituting sexual harassment.

In the case of a work-related environment, the committee shall be composed of at least one (1) representative each from the management, the union, if any, the employees from the supervisory rank, and from the rank and file employees. In the case of the educational or training institution, the committee shall be composed of at least one (1) representative from the administration, the trainors, teachers, instructors, professors or coaches and students or trainees, as the case maybe. The employer or head of office, educational or training institution shall disseminate or post a copy of this Act for the information of all concerned. The CA, thus, correctly ruled that Rayalas culpability is not to be determined solely on the basis of Section 3, RA 7877, because he is charged with the administrative offense, not the criminal infraction, of sexual [44] harassment. It should be enough that the CA, along with the Investigating Committee and the Office of the President, found substantial evidence to support the administrative charge. Yet, even if we were to test Rayalas acts strictly by the standards set in Section 3, RA 7877, h e would still be administratively liable. It is true that this provision calls for a demand, request or requirement of a sexual favor. But it is not necessary that the demand, request or requirement of a sexual favor be articulated in a categorical oral or written statement. It may be discerned, with equal certitude, from the acts of the offender. Holding and squeezing Domingos shoulders, running his fingers across her neck and tickling her ear, having inappropriate conversations with her, giving her money allegedly for school expenses with a promise of future privileges, and making statements with unmistakable sexual overtones all these acts of Rayala resound with deafening clarity the unspoken request for a sexual favor. Likewise, contrary to Rayalas claim, it is not essential that the demand, request or requirement be made as a condition for continued employment or for promotion to a higher position. It is enough that the respondents acts [45] result in creating an intimidating, hostile or offensive environment for the employee. That the acts of Rayala generated an intimidating and hostile environment for Domingo is clearly shown by the common factual finding of the Investigating Committee, the OP and the CA that Domingo reported the matter to an officemate and, after the last incident, filed for a leave of absence and requested transfer to another unit. Rayalas invocation of Aquino v. Acosta is misplaced, because the factual setting in that case is different from that in the case at bench. In Aquino, Atty. Susan Aquino, Chief of the Legal and Technical Staff of the Court of Tax Appeals (CTA), charged then CTA Presiding Judge (now Presiding Justice) Ernesto Acosta of sexual harassment. She complained of several incidents when Judge Acosta allegedly kissed her, embraced her, and put his arm around her shoulder. The case was referred to CA Justice Josefina G. Salonga for investigation. In her report, Justice Salonga found that the complainant failed to show by convincing evidence that the acts of Judge Acosta in greeting her with a kiss on the cheek, in a `beso-beso fashion, were carried out with lustful and lascivious desires or were motivated by malice or ill motive. It is clear from the circumstances that most of the kissing incidents were done on festive and special occasions, and they took place in the presence of other people and the same was by reason of the exaltation or happiness of the moment. Thus, Justice Salonga concluded: In all the incidents complained of, the respondent's pecks on the cheeks of the complainant should be understood in the context of having been done on the occasion of some festivities, and not the assertion of the latter that she was singled out by Judge Acosta in his kissing escapades. The busses on her cheeks were simply friendly and innocent, bereft of malice and lewd design. The fact that respondent judge kisses other people on the cheeks in the 'beso-beso' fashion, without malice, was corroborated by Atty. Florecita P. Flores, Ms. Josephine Adalem and
[46]

Ms. Ma. Fides Balili, who stated that they usually practice 'beso-beso' or kissing on the cheeks, as a form of greeting on occasions when they meet each other, like birthdays, Christmas, New Year's Day and even Valentine's Day, and it does not matter whether it is Judge Acosta's birthday or their birthdays. Theresa Cinco Bactat, a lawyer who belongs to complainant's department, further attested that on occasions like birthdays, respondent judge would likewise greet her with a peck on the cheek in a 'beso-beso' manner. Interestingly, in one of several festive occasions, female employees of the CTA pecked respondent judge on the cheek where Atty. Aquino was one of Judge Acosta's well wishers. In sum, no sexual harassment had indeed transpired on those six occasions. Judge Acosta's acts of bussing Atty. Aquino on her cheek were merely forms of greetings, casual and customary in nature. No evidence of intent to sexually harass complainant was apparent, only that the innocent acts of 'beso-beso' were given malicious connotations by the complainant. In fact, she did not even relate to anyone what happened to her. Undeniably, there is no manifest sexual [47] undertone in all those incidents.

This Court agreed with Justice Salonga, and Judge Acosta was exonerated. To repeat, this factual milieu in Aquino does not obtain in the case at bench. While in Aquino, the Court interpreted the acts (of Judge Acosta) as casual gestures of friendship and camaraderie, done during festive or special occasions and with other people present, in the instant case, Rayalas acts of holding and squeezing Domingos shoulders, running his fingers across her neck and tickling her ear, and the inappropriate comments, were all made in the confines of Rayalas office when no other members of his staff were around. More importantly, and a circumstance absent in Aquino, Rayalas acts, as already adverted to above, produced a hostile work environment for Domingo, as shown by her having reported the matter to an officemate and, after the last incident, filing for a leave of absence and requesting transfer to another unit. Rayala also argues that AO 250 does not apply to him. First, he argues that AO 250 does not cover the NLRC, which, at the time of the incident, was under the DOLE only for purposes of program and policy coordination. Second, he posits that even assuming AO 250 is applicable to the NLRC, he is not within its coverage because he is a presidential appointee. We find, however, that the question of whether or not AO 250 covers Rayala is of no real consequence. The events of this case unmistakably show that the administrative charges against Rayala were for violation of RA 7877; that the OP properly assumed jurisdiction over the administrative case; that the participation of the DOLE, through the Committee created by the Secretary, was limited to initiating the investigation process, reception of evidence of the parties, preparation of the investigation report, and recommending the appropriate action to be taken by the OP. AO 250 had never really been applied to Rayala. If it was used at all, it was to serve merely as an auxiliary procedural guide to aid the Committee in the orderly conduct of the investigation. Next, Rayala alleges that the CA erred in holding that sexual harassment is an offense malum prohibitum. He argues that intent is an essential element in sexual harassment, and since the acts imputed to him were done allegedly without malice, he should be absolved of the charges against him. We reiterate that what is before us is an administrative case for sexual harassment. Thus, whether the crime of sexual harassment is malum in se or malum prohibitum is immaterial. We also reject Rayalas allegations that the charges were filed because of a conspiracy to get him out of office and thus constitute merely political harassment. A conspiracy must be proved by clear and convincing evidence. His bare assertions cannot stand against the evidence presented by Domingo. As we have already ruled, the acts imputed to Rayala have been proven as fact. Moreover, he has not proven any ill motive on the part of Domingo and her witnesses which would be ample reason for her to conjure stories about him. On the contrary, ill motive is belied by the fact that Domingo and her witnesses all employees of the NLRC at that time stood to lose their jobs or suffer unpleasant consequences for coming forward and charging their boss with sexual harassment. Furthermore, Rayala decries the alleged violation of his right to due process. He accuses the Committee on Decorum of railroading his trial for violation of RA 7877. He also scored the OPs decision finding him guilty of disgraceful and immoral conduct under the Revised Administrat ive Code and not for violation of RA 7877. Considering that he was not tried for disgraceful and immoral conduct, he argues that the verdict is a sham and total nullity.

We hold that Rayala was properly accorded due process. In previous cases, this Court held that: [i]n administrative proceedings, due process has been recognized to include the following: (1) the right to actual or constructive notice of the institution of proceedings which may affect a respondents legal rights; (2) a real opportunity to be heard personally or with the assistance of counsel, to present witnesses and evidence in ones favor, and to defend ones rights; (3) a tribunal vested with competent jurisdiction and so constituted as to afford a person charged administratively a reasonable guarantee of honesty as well as impartiality; and (4) a finding by said tribunal which is supported by substantial evidence submitted for consideration during the [48] hearing or contained in the records or made known to the parties affected.

The records of the case indicate that Rayala was afforded all these procedural due process safeguards. [49] Although in the beginning he questioned the authority of the Committee to try him, he appeared, personally and with counsel, and participated in the proceedings. On the other point raised, this Court has held that, even in criminal cases, the designation of the offense is not controlling, thus: What is controlling is not the title of the complaint, nor the designation of the offense charged or the particular law or part thereof allegedly violated, these being mere conclusions of law made by the prosecutor, but the description of the crime charged and the particular facts therein recited. The acts or omissions complained of must be alleged in such form as is sufficient to enable a person of common understanding to know what offense is intended to be charged, and enable the court to pronounce proper judgment. No information for a crime will be sufficient if it does not accurately and clearly allege the elements of the crime charged. Every element of the offense must be stated in the information. What facts and circumstances are necessary to be included therein must be determined by reference to the definitions and essentials of the specified crimes. The requirement of alleging the elements of a crime in the information is to inform the accused of the [50] nature of the accusation against him so as to enable him to suitably prepare his defense.

It is noteworthy that under AO 250, sexual harassment amounts to disgraceful and immoral [51] conduct. Thus, any finding of liability for sexual harassment may also be the basis of culpability for disgraceful and immoral conduct. With the foregoing disquisitions affirming the finding that Rayala committed sexual harassment, we now determine the proper penalty to be imposed. Rayala attacks the penalty imposed by the OP. He alleges that under the pertinent Civil Service Rules, disgraceful and immoral conduct is punishable by suspension for a period of six (6) months and one (1) day to one (1) year. He also argues that since he is charged administratively, aggravating or mitigating circumstances cannot be appreciated for purposes of imposing the penalty. Under AO 250, the penalty for the first offense is suspension for six (6) months and one (1) day to one (1) [52] year, while the penalty for the second offense is dismissal. On the other hand, Section 22(o), Rule XVI of the [53] Omnibus Rules Implementing Book V of the Administrative Code of 1987 and Section 52 A(15) of the Revised [54] Uniform Rules on Administrative Cases in the Civil Service both provide that the first offense of disgraceful and immoral conduct is punishable by suspension of six (6) months and one (1) day to one (1) year. A second offense is punishable by dismissal. Under the Labor Code, the Chairman of the NLRC shall hold office during good behavior until he or she reaches the age of sixty-five, unless sooner removed for cause as provided by law or becomes incapacitated to [55] discharge the duties of the office. In this case, it is the President of the Philippines, as the proper disciplining authority, who would determine whether there is a valid cause for the removal of Rayala as NLRC Chairman. This power, however, is qualified by the phrase for cause as provided by law. Thus, when the President found that Rayala was indeed guilty of disgraceful and immoral conduct, the Chief Executive did not have unfettered discretion to impose a penalty other than the penalty provided by law for such offense. As cited above, the imposable penalty for the first offense of either the administrative offense of sexual harassment or for disgraceful and immoral conduct is suspension of six (6) months

and one (1) day to one (1) year. Accordingly, it was error for the Office of the President to impose upon Rayala the penalty of dismissal from the service, a penalty which can only be imposed upon commission of a second offense. Even if the OP properly considered the fact that Rayala took advantage of his high government position, it still could not validly dismiss him from the service. Under the Revised Uniform Rules on Administrative Cases in the [56] [57] Civil Service, taking undue advantage of a subordinate may be considered as an aggravating circumstance and where only aggravating and no mitigating circumstances are present, the maximum penalty shall be [58] imposed. Hence, the maximum penalty that can be imposed on Rayala is suspension for one (1) year. Rayala holds the exalted position of NLRC Chairman, with the rank equivalent to a CA Justice. Thus, it is not [59] unavailing that rigid standards of conduct may be demanded of him. In Talens-Dabon v. Judge Arceo, this Court, in upholding the liability of therein respondent Judge, said: The actuations of respondent are aggravated by the fact that complainant is one of his subordinates over whom he exercises control and supervision, he being the executive judge. He took advantage of his position and power in order to carry out his lustful and lascivious desires. Instead of he being in loco parentis over his subordinate employees, respondent was the one who preyed on them, taking advantage of his superior position.

In yet another case, this Court declared: As a managerial employee, petitioner is bound by more exacting work ethics. He failed to live up to his higher standard of responsibility when he succumbed to his moral perversity. And when such moral perversity is perpetrated against his subordinate, he provides a justifiable ground for his dismissal for lack of trust and confidence. It is the right, nay, the duty of every employer to [60] protect its employees from oversexed superiors.

It is incumbent upon the head of office to set an example on how his employees should conduct themselves in public office, so that they may work efficiently in a healthy working atmosphere. Courtesy demands that he should [61] set a good example. Rayala has thrown every argument in the book in a vain effort to effect his exoneration. He even puts Domingos character in question and casts doubt on the morality of the fo rmer President who ordered, albeit erroneously, his dismissal from the service. Unfortunately for him, these are not significant factors in the disposition of the case. It is his character that is in question here and sadly, the inquiry showed that he has been found wanting. WHEREFORE, the foregoing premises considered, the October 18, 2002 Resolution of the Court of Appeals in CA-G.R. SP No. 61026 is AFFIRMED.Consequently, the petitions in G.R. Nos. 155831, 155840, and 158700 are DENIED. No pronouncement as to costs. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 173264 February 22, 2008 CIVIL SERVICE COMMISSION, petitioner, vs. NITA P. JAVIER, respondent. DECISION AUSTRIA-MARTINEZ, J.: Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, seeking to reverse the 1 Decision of the Court of Appeals (CA) dated September 29, 2005, as well as its Resolution of June 5, 2006, in CAG.R. SP No. 88568, which set aside the resolutions and orders of the Civil Service Commission (CSC) invalidating the appointment of respondent as Corporate Secretary of the Board of Trustees of the Government Service and Insurance System (GSIS). The facts are undisputed. 2 According to her service record, respondent was first employed as Private Secretary in the GSIS, a government owned and controlled corporation (GOCC), on February 23, 1960, on a " confidential" status. On July 1, 1962,

respondent was promoted to Tabulating Equipment Operator with " permanent" status. The "permanent" status stayed with respondent throughout her career. She spent her entire career with GSIS, earning several more promotions, until on December 16, 1986, she was appointed Corporate Secretary of the Board of Trustees of the corporation. th 3 On July 16, 2001, a month shy of her 64 birthday, respondent opted for early retirement and received the 4 corresponding monetary benefits. On April 3, 2002, GSIS President Winston F. Garcia, with the approval of the Board of Trustees, reappointed respondent as Corporate Secretary, the same position she left and retired from barely a year earlier. Respondent was 5 64 years old at the time of her reappointment. In its Resolution, the Board of Trustees classified her appointment as 6 "confidential in nature and the tenure of office is at the pleasure of the Board." Petitioner alleges that respondent's reappointment on confidential status was meant to illegally extend her service 7 and circumvent the laws on compulsory retirement. This is because under Republic Act (R.A.) No. 8291, or the Government Service Insurance System Act of 1997, the compulsory retirement age for government employees is 65 years, thus: Sec. 13. x x x (b) Unless the service is extended by appropriate authorities, retirement shall be compulsory for an employee at sixty-five (65) years of age with at least fifteen (15) years of service: Provided, That if he has less than fifteen (15) years of service, he may be allowed to continue in the service in accordance with existing civil service rules and regulations. Under the civil service regulations, those who are in primarily confidential positions may serve even beyond the age of 65 years. Rule XIII of the Revised Omnibus Rules on Appointments and Other Personnel Actions, as amended, provides that: Sec. 12. (a) No person who has reached the compulsory retirement age of 65 years can be appointed to any position in the government, subject only to the exception provided under sub-section (b) hereof. xxxx b. A person who has already reached the compulsory retirement age of 65 can still be appointed to a coterminous/primarily confidential position in the government. A person appointed to a coterminous/primarily confidential position who reaches the age of 65 is considered automatically extended in the service until the expiry date of his/her appointment or until his/her services are 8 earlier terminated. It is for these obvious reasons that respondent's appointment was characterized as "confidential" by the GSIS. On October 10, 2002, petitioner issued Resolution No. 021314, invalidating the reappointment of respondent as Corporate Secretary, on the ground that the 9 position is a permanent, career position and not primarily confidential. On November 2, 2002, the CSC, in a letter of even date, through its Chairperson Karina Constantino-David, informed GSIS of CSC's invalidation of respondent's appointment, stating, thus: Records show that Ms. Javier was formerly appointed as Corporate Secretary in a "Permanent" capacity until her retirement in July 16, 2001. The Plantilla of Positions shows that said position is a career position. However, she was re-employed as Corporate Secretary, a position now declared as confidential by the Board of Trustees pursuant to Board Resolution No. 94 dated April 3, 2002. Since the position was not declared primarily confidential by the Civil Service Commission or by any law, the 10 appointment of Ms. Javier as Corporate Secretary is hereby invalidated. Respondent and GSIS sought to reconsider the ruling of petitioner. CSC replied that the position of Corporate Secretary is a permanent (career) position, and not primarily confidential (non-career); thus, it was wrong to appoint respondent to this position since she no longer complies with eligibility requirements for a permanent career status. More importantly, as respondent by then has reached compulsory retirement at age 65, respondent was no longer 11 qualified for a permanent career position. With the denial of respondent's plea for reconsideration, she filed a Petition for Review with the Court of Appeals. On September 29, 2005, the CA rendered a Decision setting aside the resolution of petitioner invalidating 12 respondent's appointment. The CA ruled that in determining whether a position is primarily confidential or otherwise, the nature of its functions, duties and responsibilities must be looked into, and not just its formal 13 classification. Examining the functions, duties and responsibilities of the GSIS Corporate Secretary, the CA concluded that indeed, such a position is primarily confidential in nature. Petitioner filed a motion for reconsideration, which was denied by the CA on June 5, 2006. Hence, herein petition. The petition assails the CA Decision, contending that the position of Corporate Secretary is a career position and not 14 primarily confidential in nature. Further, it adds that the power to declare whether any position in government is primarily confidential, highly technical or policy determining rests solely in petitioner by virtue of its constitutional 15 power as the central personnel agency of the government. Respondent avers otherwise, maintaining that the position of Corporate Secretary is confidential in nature and that it 16 is within the powers of the GSIS Board of Trustees to declare it so. She argues that in determining the proper classification of a position, one should be guided by the nature of the office or position, and not by its formal 17 designation.

Thus, the Court is confronted with the following issues: whether the courts may determine the proper classification of a position in government; and whether the position of corporate secretary in a GOCC is primarily confidential in nature. The Court's Ruling The courts may determine the proper classification of a position in government. Under Executive Order No. 292, or the Administrative Code of 1987, civil service positions are currently classified into 18 either 1) career service and 2) non-career service positions. Career positions are characterized by: (1) entrance based on merit and fitness to be determined as far as practicable by competitive examinations, or based on highly technical qualifications; (2) opportunity for 19 advancement to higher career positions; and (3) security of tenure. In addition, the Administrative Code, under its Book V, sub-classifies career positions according to "appointment status," divided into: 1) permanent - which is issued to a person who meets all the requirements for the positions to which he is being appointed, including the appropriate eligibility prescribed, in accordance with the provisions of law, rules and standards promulgated in pursuance thereof; and 2) temporary - which is issued, in the absence of appropriate eligibles and when it becomes necessary in the public interest to fill a vacancy, to a person who meets all the requirements for the position to which he is being appointed except the appropriate civil service eligibility; provided, that such temporary appointment shall not exceed twelve months, and the appointee may be replaced 20 sooner if a qualified civil service eligible becomes available. Positions that do not fall under the career service are considered non-career positions, which are characterized by: (1) entrance on bases other than those of the usual tests of merit and fitness utilized for the career service; and (2) tenure which is limited to a period specified by law, or which is co-terminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular projectfor which purpose 21 employment was made. Examples of positions in the non-career service enumerated in the Administrative Code are: Sec. 9. Non-Career Service. - x x x The Non-Career Service shall include: (1) Elective officials and their personal or confidential staff; (2) Secretaries and other officials of Cabinet rank who hold their positions at the pleasure of the President and their personal or confidential staff(s); (3) Chairman and members of commissions and boards with fixed terms of office and their personal or confidential staff; (4) Contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific work or job, requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, which in no case shall exceed one year, and performs or accomplishes the specific work or job, under his own responsibility with a minimum of direction and supervision from the hiring agency; and (5) Emergency and seasonal personnel. (Emphasis supplied) A strict reading of the law reveals that primarily confidential positions fall under the non-career service. It is also clear that, unlike career positions, primarily confidential and other non-career positions do not have security of tenure. The tenure of a confidential employee is co-terminous with that of the appointing authority, or is at the latter's pleasure. However, the confidential employee may be appointed or remain in the position even beyond the compulsory 22 retirement age of 65 years. Stated differently, the instant petition raises the question of whether the position of corporate secretary in a GOCC, currently classified by the CSC as belonging to the permanent, career service, should be classified as primarily confidential, i.e., belonging to the non-career service. The current GSIS Board holds the affirmative view, which is ardently opposed by petitioner. Petitioner maintains that it alone can classify government positions, and that the determination it made earlier, classifying the position of GOCC corporate secretary as a permanent, career position, should be maintained. At present, there is no law enacted by the legislature that defines or sets definite criteria for determining primarily confidential positions in the civil service. Neither is there a law that gives an enumeration of positions classified as primarily confidential. What is available is only petitioner's own classification of civil service positions, as well as jurisprudence which describe or give examples of confidential positions in government. Thus, the corollary issue arises: should the Court be bound by a classification of a position as confidential already made by an agency or branch of government? Jurisprudence establishes that the Court is not bound by the classification of positions in the civil service made by the 23 legislative or executive branches, or even by a constitutional body like the petitioner. The Court is expected to make its own determination as to the nature of a particular position, such as whether it is a primarily confidential position or 24 not, without being bound by prior classifications made by other bodies. The findings of the other branches of 25 government are merely considered initial and not conclusive to the Court. Moreover, it is well-established that in

case the findings of various agencies of government, such as the petitioner and the CA in the instant case, are in 26 conflict, the Court must exercise its constitutional role as final arbiter of all justiciable controversies and disputes. 27 Piero v. Hechanova, interpreting R.A. No. 2260, or the Civil Service Act of 1959, emphasized how the legislature refrained from declaring which positions in the bureaucracy are primarily confidential, policy determining or highly technical in nature, and declared that such a determination is better left to the judgment of the courts. The Court, with the ponencia of Justice J.B.L. Reyes, expounded, thus: The change from the original wording of the bill (expressly declared by law x x x to be policy determining, etc.) to that finally approved and enacted ("or which are policy determining, etc. in nature") came aboutbecause of the observations of Senator Taada, that as originally worded the proposed bill gave Congress power to declare by fiat of law a certain position as primarily confidential or policy determining, which should not be the case. The Senator urged that since the Constitution speaks of positions which are "primarily confidential, policy determining or highly technical in nature," it is not within the power of Congress to declare what positions are primarily confidential or policy determining."It is the nature alone of the position that determines whether it is policy determining or primarily confidential." Hence, the Senator further observed, the matter should be left to the "proper implementation of the laws, depending upon the nature of the position to be filled", and if the position is "highly confidential" then the President and the Civil Service Commissioner must implement the law. To a question of Senator Tolentino, "But in positions that involved both confidential matters and matters which are routine, x x x who is going to determine whether it is primarily confidential?" Senator Taada replied: "SENATOR TAADA: Well. at the first instance, it is the appointing power that determines that: the nature of the position. In case of conflict then it is the Court that determines whether the position is primarily confidential or not. "I remember a case that has been decided by the Supreme Court involving the position of a district engineer in Baguio, and there. precisely, the nature of the position was in issue. It was the Supreme Court that passed upon the nature of the position, and held that the President could not transfer the district engineer in Baguio against his consent." Senator Taada, therefore, proposed an amendment to section 5 of the bill, deleting the words "to be" and inserting in lieu thereof the words "Positions which are by their nature" policy determining, etc., and deleting the last words "in nature". Subsequently, Senator Padilla presented an amendment to the Taada amendment by adopting the very words of the Constitution, i.e., "those which are policy determining, primarily confidential and highly technical in nature". The Padilla amendment was adopted, and it was this last wording with which section 5 was passed and was enacted (Senate Journal, May 10, 1959, Vol. 11, No. 32, pp. 679-681). It is plain that, at least since the enactment of the 1959 Civil Service Act (R. A. 2260), it is the nature of the position which finally determines whether a position is primarily confidential, policy determining or highly technical. Executive pronouncements can be no more than initial determinations that are not conclusive in case of conflict. And it must be so, or else it would then lie within the discretion of title Chief Executive to deny to any officer, by executive fiat, the protection of section 4, Article XII, of the 28 Constitution. (Emphasis and underscoring supplied) 29 This doctrine in Piero was reiterated in several succeeding cases. Presently, it is still the rule that executive and legislative identification or classification of primarily confidential, policydetermining or highly technical positions in government is no more than mere declarations, and does not foreclose judicial review, especially in the event of conflict. Far from what is merely declared by executive or legislative fiat, it is the nature of the position which finally determines whether it is primarily confidential, policy determining or highly technical, and no department in government is better qualified to make such an ultimate finding than the judicial branch. 30 Judicial review was also extended to determinations made by petitioner. In Grio v. Civil Service Commission, the Court held: The fact that the position of respondent Arandela as provincial attorney has already been classified as one under the career service and certified as permanent by the Civil Service Commission cannot conceal or alter its highly confidential nature. As in Cadiente where the position of the city legal officer was duly attested as permanent by the Civil Service Commission before this Court declared that the same was primarily confidential, this Court holds that the position of respondent Arandela as the provincial attorney of Iloilo is also a primarily confidential position. To rule otherwise would be tantamount to classifying two positions with 31 the same nature and functions in two incompatible categories. The framers of the 1987 Constitution were of the same disposition. Section 2 (2) Article IX (B) of the Constitution provides that: Appointments in the civil service shall be made only according to merit and fitness to be determined, as far as practicable, and, except to positions which are policy-determining, primarily confidential, or highly technical, by competitive examination.

The phrase "in nature" after the phrase "policy-determining, primarily confidential, or highly technical" was deleted 32 from the 1987 Constitution. However, the intent to lay in the courts the power to determine the nature of a position is evident in the following deliberation: MR. FOZ. Which department of government has the power or authority to determine whether a position is policy-determining or primarily confidential or highly technical? FR. BERNAS: The initial decision is made by the legislative body or by the executive department, but the final decision is done by the court. The Supreme Court has constantly held that whether or not a position is policy-determining, primarily confidential or highly technical, it is determined not by the title but by the nature of the task that is entrusted to it. For instance, we might have a case where a position is created requiring that the holder of that position should be a member of the Bar and the law classifies this position as highly technical. However, the Supreme Court has said before that a position which requires mere membership in the Bar is not a highly technical position. Since the term 'highly technical' means something beyond the ordinary requirements of the profession, it is always a question of fact. MR. FOZ. Does not Commissioner Bernas agree that the general rule should be that the merit system or the competitive system should be upheld? FR. BERNAS. I agree that that it should be the general rule; that is why we are putting this as an exception. MR. FOZ. The declaration that certain positions are policy-determining, primarily confidential or highly technical has been the source of practices which amount to the spoils system. FR. BERNAS. The Supreme Court has always said that, but if the law of the administrative agency says that a position is primarily confidential when in fact it is not, we can always challenge that in court. It is not enough that the law calls it primarily confidential to make it such; it is the nature of the duties which makes a position primarily confidential. MR. FOZ. The effect of a declaration that a position is policy-determining, primarily confidential or highly technical - as an exception - is to take it away from the usual rules and provisions of the Civil Service Law and to place it in a class by itself so that it can avail itself of certain privileges not available to the ordinary run of government employees and officers. FR. BERNAS. As I have already said, this classification does not do away with the requirement of merit and fitness. All it says is that there are certain positions which should not be determined by competitive examination. For instance, I have just mentioned a position in the Atomic Energy Commission. Shall we require a physicist to undergo a competitive examination before appointment? Or a confidential secretary or any position in policy-determining administrative bodies, for that matter? There are other ways of determining merit and fitness than competitive examination. This is not a denial of the requirement of merit and 33 fitness. (Emphasis supplied) 34 This explicit intent of the framers was recognized in Civil Service Commission v. Salas, and Philippine Amusement 35 and Gaming Corporation v. Rilloraza, which leave no doubt that the question of whether the position of Corporate Secretary of GSIS is confidential in nature may be determined by the Court. The position of corporate secretary in a government owned and controlled corporation, currently classified as a permanent career position, is primarily confidential in nature. First, there is a need to examine how the term "primarily confidential in nature" is described in jurisprudence. 36 According to Salas, Prior to the passage of the x x x Civil Service Act of 1959 (R.A. No. 2260), there were two recognized instances when a position may be considered primarily confidential: Firstly, when the President, upon recommendation of the Commissioner of Civil Service, has declared the position to be primarily confidential; and, secondly in the absence of such declaration, when by the nature of the functions of the office there exists "close intimacy" between the appointee and appointing power which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of 37 state. (Emphasis supplied) 38 However, Salas declared that since the enactment of R.A. No. 2260 and Piero, it is the nature of the position which finally determines whether a position is primarily confidential or not, without regard to existing executive or legislative pronouncements either way, since the latter will not bind the courts in case of conflict. 39 A position that is primarily confidential in nature is defined as early as 1950 in De los Santos v. Mallare, through the ponencia of Justice Pedro Tuason, to wit: x x x These positions (policy-determining, primarily confidential and highly technical positions), involve the highest degree of confidence, or are closely bound up with and dependent on other positions to which they are subordinate, or are temporary in nature. It may truly be said that the good of the service itself demands that appointments coming under this category be terminable at the will of the officer that makes them. xxxx Every appointment implies confidence, but much more than ordinary confidence is reposed in the occupant of a position that is primarily confidential. The latter phrase denotes not only confidence in

the aptitude of the appointee for the duties of the office but primarily close intimacy which insures freedom of [discussion, delegation and reporting] without embarrassment or freedom from 40 misgivings of betrayals of personal trust or confidential matters of state. x x x (Emphasis supplied) 41 Since the definition in De los Santos came out, it has guided numerous other cases. Thus, it still stands that a position is primarily confidential when by the nature of the functions of the office there exists "close intimacy" between the appointee and appointing power which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state. In classifying a position as primarily confidential, its functions must not be routinary, ordinary and day to day in 42 character. A position is not necessarily confidential though the one in office may sometimes handle confidential 43 matters or documents. Only ordinary confidence is required for all positions in the bureaucracy. But, as held in De los Santos,[44] for someone holding a primarily confidential position, more than ordinary confidence is required. 45 In Ingles v. Mutuc, the Court, through Chief Justice Roberto Concepcion as ponente, stated: Indeed, physicians handle confidential matters. Judges, fiscals and court stenographers generally handle matters of similar nature. The Presiding and Associate Justices of the Court of Appeals sometimes investigate, by designation of the Supreme Court, administrative complaints against judges of first instance, which are confidential in nature. Officers of the Department of Justice, likewise, investigate charges against municipal judges. Assistant Solicitors in the Office of the Solicitor General often investigate malpractice charges against members of the Bar. All of these are "confidential" matters, but such fact does not warrant the conclusion that the office or position of all government physicians and all Judges, as well as the aforementioned assistant solicitors and officers of the Department of Justice 46 areprimarily confidential in character. (Emphasis supplied) It is from De los Santos that the so-called "proximity rule" was derived. A position is considered to be primarily confidential when there is a primarily close intimacy between the appointing authority and the appointee, which ensures the highest degree of trust and unfettered communication and discussion on the most confidential of 47 matters. This means that where the position occupied is already remote from that of the appointing authority, the 48 element of trust between them is no longer predominant. On further interpretation in Grio, this was clarified to mean that a confidential nature would be limited to those positions not separated from the position of the appointing 49 authority by an intervening public officer, or series of public officers, in the bureaucratic hierarchy. Consequently, brought upon by their remoteness to the position of the appointing authority, the following were 50 declared by the Court to be not primarily confidential positions: City Engineer; Assistant Secretary to the 51 52 Mayor; members of the Customs Police Force or Port Patrol; Special Assistant of the Governor of the Central 53 Bank, Export Department; Senior Executive Assistant, Clerk I and Supervising Clerk I and Stenographer in the 54 55 Office of the President; Management and Audit Analyst I of the Finance Ministry Intelligence Bureau; Provincial 56 57 Administrator; Internal Security Staff of the Philippine Amusement and Gaming Corporation (PAGCOR); Casino 58 59 Operations Manager; and Slot Machine Attendant. All positions were declared to be not primarily confidential despite having been previously declared such either by their respective appointing authorities or the legislature. The following were declared in jurisprudence to be primarily confidential positions: Chief Legal Counsel of the 60 61 Philippine National Bank; Confidential Agent of the Office of the Auditor, GSIS; Secretary of 62 63 the SangguniangBayan; Secretary to the City Mayor; Senior Security and Security Guard in the Office of the Vice 64 65 Mayor; Secretary to the Board of a government corporation; City Legal Counsel, City Legal Officer or City 66 67 68 Attorney; Provincial Attorney; Private Secretary; and Board Secretary II of the Philippine State College of 69 Aeronautics. In fine, a primarily confidential position is characterized by the close proximity of the positions of the appointer and appointee as well as the high degree of trust and confidence inherent in their relationship. Ineluctably therefore, the position of Corporate Secretary of GSIS, or any GOCC, for that matter, is a primarily confidential position. The position is clearly in close proximity and intimacy with the appointing power. It also calls for the highest degree of confidence between the appointer and appointee. In classifying the position of Corporate Secretary of GSIS as primarily confidential, the Court took into consideration the proximity rule together with the duties of the corporate secretary, 70 enumerated as follows: 1. Performs all duties, and exercises the power, as defined and enumerated in Section 4, Title IX, P.D. No. 1146; 2. Undertakes research into past Board resolutions, policies, decisions, directives and other Board action, and relate these to present matters under Board consideration; 3. Analyzes and evaluates the impact, effects and relevance of matters under Board consideration on existing Board policies and provide the individual Board members with these information so as to guide or enlighten them in their Board decision; 4. Records, documents and reproduces in sufficient number all proceedings of Board meetings and disseminate relevant Board decisions/information to those units concerned; 5. Coordinates with all functional areas and units concerned and monitors the manner of implementation of approved Board resolutions, policies and directives;

6. Maintains a permanent, complete, systematic and secure compilation of all previous minutes of Board meetings, together with all their supporting documents; 7. Attends, testifies and produces in Court or in administrative bodies duly certified copies of Board resolutions, whenever required; 8. Undertakes the necessary physical preparations for scheduled Board meetings; 9. Pays honoraria of the members of the Board who attend Board meetings; 10. Takes custody of the corporate seal and safeguards against unauthorized use; and 11. Performs such other functions as the Board may direct and/or require. 71 The nature of the duties and functions attached to the position points to its highly confidential character. The 72 secretary reports directly to the board of directors, without an intervening officer in between them. In such an arrangement, the board expects from the secretary nothing less than the highest degree of honesty, integrity and loyalty, which is crucial to maintaining between them "freedom of intercourse without embarrassment or freedom from 73 misgivings or betrayals of personal trust or confidential matters of state." The responsibilities of the corporate secretary are not merely clerical or routinary in nature. The work involves constant exposure to sensitive policy matters and confidential deliberations that are not always open to the public, as unscrupulous persons may use them to harm the corporation. Board members must have the highest confidence in the secretary to ensure that their honest sentiments are always and fully expressed, in the interest of the corporation. In this respect, the nature of the corporate secretary's work is akin to that of a personal secretary of a public official, a 74 position long recognized to be primarily confidential in nature. The only distinction is that the corporate secretary is secretary to the entire board, composed of a number of persons, but who essentially act as one body, while the private secretary works for only one person. However, the degree of confidence involved is essentially the same. Not only do the tasks listed point to sensitive and confidential acts that the corporate secretary must perform, they also include "such other functions as the Board may direct and/or require," a clear indication of a closely intimate relationship that exists between the secretary and the board. In such a highly acquainted relation, great trust and confidence between appointer and appointee is required. The loss of such trust or confidence could easily result in the board's termination of the secretary's services and ending of his term. This is understandably justified, as the board could not be expected to function freely with a suspicious officer in its midst. It is for these same reasons that jurisprudence, as earlier cited, has consistently 75 characterized personal or private secretaries, and board secretaries, as positions of a primarily confidential nature. The CA did not err in declaring that the position of Corporate Secretary of GSIS is primarily confidential in nature and does not belong to the career service. The Court is aware that this decision has repercussions on the tenure of other corporate secretaries in various GOCCs. The officers likely assumed their positions on permanent career status, expecting protection for their tenure and appointments, but are now re-classified as primarily confidential appointees. Such concern is unfounded, however, since the statutes themselves do not classify the position of corporate secretary as permanent and career in nature. Moreover, there is no absolute guarantee that it will not be classified as confidential when a dispute arises. As earlier stated, the Court, by legal tradition, has the power to make a final determination as to which positions in government are primarily confidential or otherwise. In the light of the instant controversy, the Court's view is that the greater public interest is served if the position of a corporate secretary is classified as primarily confidential in nature. 76 Moreover, it is a basic tenet in the country's constitutional system that "public office is a public trust," and that there 77 is no vested right in public office, nor an absolute right to hold office. No proprietary title attaches to a public office, 78 as public service is not a property right. Excepting constitutional offices which provide for special immunity as 79 regards salary and tenure, no one can be said to have any vested right in an office. The rule is that offices in 80 government, except those created by the constitution, may be abolished, altered, or created anytime by statute. And 81 any issues on the classification for a position in government may be brought to and determined by the courts. WHEREFORE, premises considered, the Petition is DENIED. The Decision of the Court of Appeals dated September 29, 2005, in CA-G.R. SP No. 88568, as well as its Resolution of June 5, 2006 are hereby AFFIRMEDin toto. No costs. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 169435 February 27, 2008 MUNICIPALITY OF NUEVA ERA, ILOCOS NORTE, represented by its Municipal Mayor, CAROLINE ARZADONGARVIDA, petitioner, vs. MUNICIPALITY OF MARCOS, ILOCOS NORTE, represented by its Municipal Mayor, SALVADOR PILLOS, and the HONORABLE COURT OF APPEALS, respondents. DECISION REYES, R.T., J.:

AS the law creating a municipality fixes its boundaries, settlement of boundary disputes between municipalities is facilitated by carrying into effect the law that created them. Any alteration of boundaries that is not in accordance with the law creating a municipality is not the carrying into 1 effect of that law but its amendment, which only the Congress can do. 2 3 For Our review on certiorari is the Decision of the Court of Appeals (CA) reversing to a certain extent that of the Regional Trial Court (RTC), Branch 12, Laoag City, Ilocos Norte, in a case that originated from the Sangguniang Panlalawigan (SP) of Ilocos Norte about the boundary dispute between the Municipalities of Marcos and Nueva Era in Ilocos Norte. The CA declared that Marcos is entitled to have its eastern boundary extended up "to the boundary line between the 4 province of Ilocos Norte and Kalinga-Apayao." By this extension of Marcos' eastern boundary, the CA allocated to Marcos a portion of Nueva Era's territory. The Facts The Municipality of Nueva Era was created from the settlements of Bugayong, Cabittaoran, Garnaden, Padpadon, Padsan, Paorpatoc, Tibangran, and Uguis which were previously organized as rancherias, each of which was under the independent control of a chief. Governor General Francis Burton Harrison, acting on a resolution passed by the provincial government of Ilocos Norte, united these rancherias and created the township of Nueva Era by virtue of 5 Executive Order (E.O.) No. 66 dated September 30, 1916. The Municipality of Marcos, on the other hand, was created on June 22, 1963 pursuant to Republic Act (R.A.) No. 3753 entitled "An Act Creating the Municipality of Marcos in the Province of Ilocos Norte." Section 1 of R.A. No. 3753 provides: SECTION 1. The barrios of Capariaan, Biding, Escoda, Culao, Alabaan, Ragas and Agunit in the Municipality of Dingras, Province of Ilocos Norte, are hereby separated from the said municipality and constituted into a new and separate municipality to be known as the Municipality of Marcos, with the following boundaries: On the Northwest, by the barrios Biding-Rangay boundary going down to the barrios Capariaan-Gabon boundary consisting of foot path and feeder road; on the Northeast, by the Burnay River which is the common boundary of barrios Agunit and Naglayaan; on the East, by the Ilocos Norte-Mt. Province boundary; on the South, by the Padsan River which is at the same time the boundary between the municipalities of Banna and Dingras; on the West and Southwest, by the boundary between the municipalities of Batac and Dingras. The Municipality of Marcos shall have its seat of government in the barrio of Biding. Based on the first paragraph of the said Section 1 of R.A. No. 3753, it is clear that Marcos shall be derived from the listed barangays of Dingras, namely: Capariaan, Biding, Escoda, Culao, Alabaan, Ragas and Agunit. The Municipality of Nueva Era or any of its barangays was not mentioned. Hence, if based only on said paragraph, it is clear that Nueva Era may not be considered as a source of territory of Marcos. There is no issue insofar as the first paragraph is concerned which named only Dingras as the mother municipality of Marcos. The problem, however, lies in the description of Marcos' boundaries as stated in the second paragraph, particularly in the phrase: "on the East, by the Ilocos Norte-Mt. Province boundary." It must be noted that the term "Mt. Province" stated in the above phrase refers to the present adjoining provinces of Benguet, Mountain Province, Ifugao, Kalinga and Apayao, which were then a single province. Mt. Province was divided into the four provinces of Benguet, Mountain Province, Ifugao, and Kalinga-Apayao by virtue of R.A. No. 4695 which was enacted on June 18, 1966. On February 14, 1995, the province of Kalinga-Apayao, which comprises the sub-provinces of Kalinga and Apayao, was further converted into the regular provinces of Kalinga and Apayao pursuant to R.A. No. 7878. The part of then Mt. Province which was at the east of Marcos is now the province of Apayao. Hence, the eastern boundary referred to by the second paragraph of Section 1 of R.A. No. 3753 is the present Ilocos Norte-Apayao boundary. On the basis of the said phrase, which described Marcos' eastern boundary, Marcos claimed that the middle portion of Nueva Era, which adjoins its eastern side, formed part of its territory. Its reasoning was founded upon the fact that Nueva Era was between Marcos and the Ilocos Norte-Apayao boundary such that if Marcos was to be bounded on 6 the east by the Ilocos Norte-Apayao boundary, part of Nueva Era would consequently be obtained by it. 7 Marcos did not claim any part of Nueva Era as its own territory until after almost 30 years, or only on March 8, 1993, 8 when its Sangguniang Bayan passed Resolution No. 93-015. Said resolution was entitled: "Resolution Claiming an Area which is an Original Part of Nueva Era, But Now Separated Due to the Creation of Marcos Town in the Province of Ilocos Norte." Marcos submitted its claim to the SP of Ilocos Norte for its consideration and approval. The SP, on the other hand, 9 required Marcos to submit its position paper. In its position paper, Marcos alleged that since its northeastern and eastern boundaries under R.A. No. 3753 were the Burnay River and the Ilocos Norte-Mountain Province boundary, respectively, its eastern boundary should not be limited to the former Dingras-Nueva Era boundary, which was coterminous and aligned with the eastern boundary of Dingras. According to Marcos, its eastern boundary should extend further to the east or up to the Ilocos-Norte-Mt. 10 Province boundary pursuant to the description of its eastern boundary under R.A. No. 3753.

In view of its claim over the middle portion of Nueva Era, Marcos posited that Nueva Era was cut into two parts. And since the law required that the land area of a municipality must be compact and contiguous, Nueva Era's northern isolated portion could no longer be considered as its territory but that of Marcos'. Thus, Marcos claimed that it was 11 entitled not only to the middle portion of Nueva Era but also to Nueva Era's isolated northern portion. These areas claimed by Marcos were within Barangay Sto. Nio, Nueva Era. Nueva Era reacted to the claim of Marcos through its Resolution No. 1, Series of 1993. It alleged that since time immemorial, its entire land area was an ancestral domain of the "tinguians," an indigenous cultural community. It argued to the effect that since the land being claimed by Marcos must be protected for the tinguians, it must be 12 preserved as part of Nueva Era. According to Nueva Era, Marcos was created out of the territory of Dingras only. And since R.A. No. 3753 specifically mentioned seven (7) barrios of Dingras to become Marcos, the area which should comprise Marcos should not go 13 beyond the territory of said barrios. From the time Marcos was created in 1963, its eastern boundary had been considered to be aligned and coterminous with the eastern boundary of the adjacent municipality of Dingras. However, based on a re-survey in 1992, supposedly done to conform to the second paragraph of Section 1 of R.A. No. 3753, an area of 15,400 hectares of 14 Nueva Era was alleged to form part of Marcos. This was the area of Barangay Sto. Nio, Nueva Era that Marcos claimed in its position paper. 15 On March 29, 2000, the SP of Ilocos Norte ruled in favor of Nueva Era. The fallo of its decision reads: WHEREFORE, in view of all the foregoing, this Body has no alternative but to dismiss, as it hereby DISMISSES said petition for lack of merit. The disputed area consisting of 15,400 hectares, more or less, is 16 hereby declared as part and portion of the territorial jurisdiction of respondent Nueva Era. R.A. No. 3753 expressly named the barangays that would comprise Marcos, but none of Nueva Era's barangayswere mentioned. The SP thus construed, applying the rule of expressio unius est exclusio alterius, that no part of Nueva 17 Era was included by R.A. No. 3753 in creating Marcos. The SP ratiocinated that if Marcos was to be bounded by Mt. Province, it would encroach upon a portion, not only of Nueva Era but also of Abra. Thus: x x x Even granting, for the sake of argument, that the eastern boundary of Marcos is indeed Mountain Province, Marcos will then be claiming a portion of Abra because the province, specifically Barangay Sto. Nio, Nueva Era, is actually bounded on the East by the Province of Abra. Abra is situated between and separates the Provinces of Ilocos Norte and Mountain Province. This is precisely what this body would like to avoid. Statutes should be construed in the light of the object to be achieved and the evil or mischief to be suppressed, and they should be given such construction as will 18 advance the object, suppress the mischief and secure the benefits intended. (Citations omitted) The SP further explained: Invariably, it is not the letter, but the spirit of the law and the intent of the legislature that is important. When the interpretation of the statute according to the exact and literal import of its words would lead to absurdity, it should be construed according to the spirit and reason, disregarding if necessary the letters of the law. It is believed that congress did not intend to have this absurd situation to be created when it created the Municipality of Marcos. This body, by the mandate given to it by the RA 7160 otherwise known Local Government Code, so believes that respondent Nueva Era or any portion thereof has been excluded from the ambit of RA 3753. Under the principle of "espressio (sic) unios (sic) est exclusio alterius," by expressly naming the barangays that will comprise the town of Marcos, those not mentioned are deemed excluded. In Republic Act 4354, where Section 2 thereof enumerated the barrios comprising the City of Davao excluding the petitioner Barrio Central as part of the said City, the court held that there arose a prima facie conclusion that the said law abolished Barrio Central as part of Davao City. Historically, the hinterlands of Nueva Era have been known to be the home of our brothers and sisters belonging to peculiar groups of non-(C)hristian inhabitants with their own rich customs and traditions and this body takes judicial notice that the inhabitants of Nueva Era have proudly claimed to be a part of this rich culture. With this common ancestral heritage which unfortunately is absent with Marcos, let it not be 19 disturbed. (Emphasis ours and citations omitted) RTC Decision 20 On appeal by Marcos, the RTC affirmed the decision of the SP in its decision of March 19, 2001. The dispositive part of the RTC decision reads: WHEREFORE, the instant appeal is hereby DISMISSED. The questioned decision of the Sangguniang Panlalawigan of Ilocos Norte is hereby AFFIRMED. No costs. 21 SO ORDERED. The RTC reasoned out in this wise: The position of the Municipality of Marcos is that the provision of R.A. 3753 as regards its boundary on the East which is the "Ilocos Norte-Mt. Province" should prevail.

On the other hand, the Municipality of Nueva Era posits the theory that only the barrios of the Municipality of Dingras as stated in R.A. 3753 should be included in the territorial jurisdiction of the Municipality of Marcos. The Sangguniang Panlalawigan agreed with the position of Nueva Era. xxxx An examination of the Congressional Records during the deliberations of the R.A. 3753 (House Bill No. nd 3721) shows the Explanatory Note of Congressman Simeon M. Valdez, 2 District, Ilocos Norte, to wit: EXPLANATORY NOTE This bill seeks to create in the Province of Ilocos Norte a new municipality to be known as the Municipality of Marcos, to be comprised by the present barrios of Capariaan, Biding Escoda, Culao, Alabaan, Ragas and Agunit, all in the Municipality of Dingras of the same province. The seat of government will be in the sitio of San Magro in the present barrio of Ragas. xxxx On the other hand, the Municipality of Dingras will not be adversely affected too much because its finances will still be sound and stable. Its capacity to comply with its obligations, especially to its employees and personnel, will not be diminished nor its operations paralyzed. On the contrary, economic development in both the mother and the proposed municipalities will be accelerated. In view of the foregoing, approval of this bill is earnestly requested. (Sgd.) SIMEON M. VALDEZ nd Congressman, 2 District 22 Ilocos Norte Parenthetically, the legislative intent was for the creation of the Municipality of Marcos, Ilocos Norte from the barrios (barangays) of the Municipality of Dingras, Ilocos Norte only. Hence, the Municipality of Marcos cannot add any area beyond the territorial jurisdiction of the Municipality of Dingras, Ilocos Norte. This conclusion might have been different only if the area being claimed by the Municipality of Marcos is within the territorial jurisdiction of the Municipality of Dingras and not the Municipality of Nueva Era. In such case, the two conflicting provisions may be harmonized by including such area within the territorial jurisdiction of the Municipality of Dingras as within the 23 territorial jurisdiction of the Municipality of Marcos. (Emphasis ours) CA Disposition 24 Still determined to have a more extensive eastern boundary, Marcos filed a petition for review of the RTC decision before the CA. The issues raised by Marcos before the CA were: 1. Whether or not the site of Hercules Minerals and Oil, Inc. which is within a Government Forest Reservation in Barangay Sto. Nio, formerly of Nueva Era, is a part of the newly created Municipality of Marcos, Ilocos Norte. 2. Whether or not the portion of Barangay Sto. Nio on the East which is separated from Nueva Era as a result of the full implementation of the boundaries of the new Municipality of Marcos belongs also to Marcos 25 or to Nueva Era. The twin issues involved two portions of Nueva Era, viz.: (1) middle portion, where Hercules Minerals and Oil, Inc. is located; and (2) northern portion of Nueva Era, which, according to Marcos, was isolated from Nueva Era in view of the integration to Marcos of said middle portion. Marcos prayed before the CA that the above two portions of Nueva Era be declared as part of its own territory. It alleged that it was entitled to the middle portion of Nueva Era in view of the description of Marcos' eastern boundary under R.A. No. 3753. Marcos likewise contended that it was entitled to the northern portion of Nueva Era which was allegedly isolated from Nueva Era when Marcos was created. It posited that such isolation of territory was contrary to 26 law because the law required that a municipality must have a compact and contiguous territory. 27 In a Decision dated June 6, 2005, the CA partly reversed the RTC decision with the following disposition: WHEREFORE, we partially GRANT the petition treated as one for certiorari. The Decisions of both the Sangguniang Panlalawigan and Regional Trial Court of Ilocos Norte are REVERSED and SET ASIDEinsofar as they made the eastern boundary of the municipality of Marcos co-terminous with the eastern boundary of Dingras town, and another is rendered extending the said boundary of Marcos to the boundary line between the province of Ilocos Norte and Kalinga-Apayao, but the same Decisions are AFFIRMEDwith respect to the denial of the claim of Marcos to the detached northern portion of barangay Sto. Nio which should, as it is hereby ordered to, remain with the municipality of Nueva Era. No costs. 28 SO ORDERED. In concluding that the eastern boundary of Marcos was the boundary line between Ilocos Norte and Kalinga-Apayao, the CA gave the following explanation: Clearly then, both the SP and the RTC erred when they ruled that the eastern boundary of Marcos is only coterminous with the eastern boundary of the adjacent municipality of Dingras and refused to extend it up to the boundary line between the provinces of Ilocos Norte and Mountain Province (Kalinga-Apayao). R.A. No. 3753, the law creating Marcos, is very explicit and leaves no room for equivocation that the boundaries of Marcos town are:

"On the Northwest by the barrios Biding-Rangay boundary going down to the barrios CapariaanGabon boundary consisting of foot path and feeder road; on the Northeast, by the Burnay River which is the common boundary of barrios Agunit and Naglayaan; on the East, by the Ilocos Norte-Mt. Province boundary; on the South by the Padsan River, which is at the same time the boundary between the municipalities of Banna and Dingras; on the West and Southwest by the boundary between the municipalities of Batac and Dingras." To stop short at the eastern boundary of Dingras as the eastern boundary also of Marcos and refusing to go farther to the boundary line between Ilocos Norte and Mountain Province (Kalinga-Apayao) is tantamount to amending the law which Congress alone can do. Both the SP and RTC have no competence to undo a valid act of Congress. It is not correct to say that Congress did not intend to take away any part of Nueva Era and merge it with Marcos for it is chargeable with conclusive knowledge that when it provided that the eastern boundary of Marcos is the boundary line between Ilocos Norte and Mountain Province, (by the time of both the SB and RTC Decision was already Kalinga-Apayao), it would be cutting through a portion of Nueva Era. As the law 29 is written so must it be applied. Dura lex sed lex! The CA likewise held that the province Abra was not located between Marcos and Kalinga-Apayao; and that Marcos would not encroach upon a portion of Abra for it to be bounded by Kalinga-Apayao, to wit: Nueva Era's contention that to lay out the eastern jurisdiction of Marcos to the boundary line between Ilocos Norte and Mountain Province (Kalinga-Apayao) would mean annexing part of the municipality of Itnig, province of Abra to Marcos as Abra is between Ilocos Norte and Mountain Province is geographically erroneous. From Nueva Era's own map of Region 1, which also depicts the locations of Kalinga-Apayao, Abra, Mountain Province, Benguet and Nueva Vizcaya after the partition of the old Mountain Province into the provinces of Kalinga-Apayao, Ifugao, Mountain Province and Benguet, the province of Abra is situated far to the south of Kalinga Apayao and is between the latter and the present Mountain Province, which is farther south of Abra. Abra is part of the eastern boundary of Ilocos Sur while Kalinga-Apayao is the eastern boundary of Ilocos Norte. Hence, in no way will the eastern boundary of the municipality of Marcos encroach 30 upon a portion of Abra. However, Marcos' claim over the alleged isolated northern portion of Nueva Era was denied. The CA ruled: Going now to the other area involved, i.e., the portion of Sto. Nio that is separated from its mother town Nueva Era and now lies east of the municipalities of Solsona and Dingras and north of Marcos, it bears stressing that it is not included within the area of Marcos as defined by law. But since it is already detached from Sto. Nio, Marcos is laying claim to it to be integrated into its territory by the SP because it is contiguous to a portion of said municipality. We hold that the SP has no jurisdiction or authority to act on the claim, for it will necessarily substantially alter the north eastern and southern boundaries of Marcos from that defined by law and unduly enlarge its area. Only Congress can do that. True, the SP may substantially alter the boundary of a barangay within its jurisdiction. But this means the alteration of the boundary of a barangay in relation to another barangaywithin the same municipality for as long as that will not result in any change in the boundary of that municipality. The area in dispute therefore remains to be a part of Sto. Nio, a barangay of Nueva Era although separated by the newly created Marcos town pursuant to Section 7(c) of the 1991 Local Government Code which states: SEC. 7. Creation and Conversion. - As a general rule, the creation of a local government unit or its conversion from one level to another shall be based on verifiable indicators of viability and projected capacity to provide services, to wit: xxxx (c) Land Area. - It must be contiguous, unless it comprises two 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 31 the requirements of its populace. The CA also expressed the view that Marcos adopted the wrong mode of appeal in bringing the case to it. The case, according to the CA, was appealable only to the RTC. Nonetheless, despite its pronouncement that the case was dismissible, the CA took cognizance of the same by treating it as one for certiorari, to wit: A final word. At the outset, we agonized over the dilemma of choosing between dismissing outright the petition at bar or entertaining it. This is for the simple reason that a petition for review is a mode of appeal and is not appropriate as the Local Government Code provides for the remedy of appeal in boundary disputes only to the Regional Trial Court but not any further appeal to this Court. Appeal is a purely statutory right. It cannot be exercised unless it is expressly granted by law. This is too basic to require the citation of supporting authority. xxxx By the same token, since the Local Government Code does not explicitly grant the right of further appeal from decisions of the RTCs in boundary disputes between or among local government units, Marcos town cannot exercise that right from the adverse decision of the RTC of Ilocos Norte. Nonetheless, because of the

transcendental legal and jurisdictional issues involved, we solved our inceptive dilemma by treating the 32 petition at bar as a special civil action for certiorari. Nueva Era was not pleased with the decision of the CA. Hence, this petition for review on certiorari under Rule 45. Issues Nueva Era now raises the following issues: a) Whether or not, the Court of Appeals has jurisdiction on the Petition for Review on Appeal, since Sec. 119 of the Local Government Code, which provides that "An appeal to the Decision of the Sangguniang Panlalawigan is exclusively vested to the Regional Trial Court, without further Appeal to the Court of Appeals"; b) Whether or not, the Court of Appeals gravely abused its discretion, in treating the Petition for Review On Appeal, filed under Rule 45, Revised Rules of Court, as a Petition for Certiorari, under Rule 65 of the Revised Rules of Court; c) Whether or not, the Court of Appeals erred in its appreciation of facts, in declaring that MARCOS East is not coterminous with the Eastern boundary of its mother town-Dingras. That it has no factual and legal basis to extend MARCOS territory beyond Brgys. Agunit (Ferdinand) and Culao (Elizabeth) of Marcos, and to go further East, by traversing and disintegrating Brgy. Sto. Nio, and drawing parallel lines from Sto. Nio, there 33 lies Abra, not Mt. Province or Kalinga-Apayao. Basically, there are two (2) issues to resolve here: (1) whether or not the mode of appeal adopted by Marcos in bringing the case to the CA is proper; and (2) whether or not the eastern boundary of Marcos extends over and covers a portion of Nueva Era. Our Ruling Marcos correctly appealed the RTC judgment via petition for review under Rule 42 . Under Section 118(b) of the Local Government Code, "(b)oundary disputes involving two (2) or more municipalities within the same province shall be referred for settlement to the sangguniang panlalawigan concerned." The dispute shall be formally tried by the said sanggunian in case the disputing municipalities fail to effect an amicable 34 settlement. The SP of Ilocos validly took cognizance of the dispute between the parties. The appeal of the SP judgment to the RTC was likewise properly filed by Marcos before the RTC. The problem, however, lies in whether the RTC judgment may still be further appealed to the CA. The CA pronounced that the RTC decision on the boundary dispute was not appealable to it. It ruled that no further 35 appeal of the RTC decision may be made pursuant to Section 119 of the Local Government Code which provides: SECTION 119. Appeal. - Within the time and manner prescribed by the Rules of Court, any party may elevate the decision of the sanggunian concerned to the proper Regional Trial Court having jurisdiction over the area in dispute. The Regional Trial Court shall decide the appeal within one (1) year from the filing thereof. Pending final resolution of the disputed area prior to the dispute shall be maintained and continued for all legal purposes. The CA concluded that since only the RTC was mentioned as appellate court, the case may no longer be further appealed to it. The CA stated that "(a)ppeal is a purely statutory right. It cannot be exercised unless it is expressly 36 granted by law. This is too basic to require the citation of supporting authority." The CA, however, justified its taking cognizance of the case by declaring that: "because of the transcendental legal and jurisdictional issues involved, we solved our inceptive dilemma by treating the petition at bar as a special civil 37 action for certiorari." The CA erred in declaring that only the RTC has appellate jurisdiction over the judgment of the SP. True, appeal is a purely statutory right and it cannot be exercised unless it is expressly granted by law. Nevertheless, the CA can pass upon the petition for review precisely because the law allows it. 38 Batas Pambansa (B.P.) Blg. 129 or the Judiciary Reorganization Act of 1980, as amended by R.A. No. 7902, vests in the CA the appellate jurisdiction over all final judgments, decisions, resolutions, orders or awards of Regional Trial 39 Courts and quasi-judicial agencies, instrumentalities, boards or commissions, among others. B.P. Blg. 129 has been further supplemented by the 1997 Rules of Civil Procedure, as amended, which provides for the remedy of appeal via petition for review under Rule 42 to the CA in cases decided by the RTC in the exercise of its appellate jurisdiction. Thus, the CA need not treat the appeal via petition for review filed by Marcos as a petition for certiorari to be able to pass upon the same. B.P. Blg. 129, as amended, which is supplemented by Rule 42 of the Rules of Civil Procedure, gives the CA the authority to entertain appeals of such judgments and final orders rendered by the RTC in the exercise of its appellate jurisdiction. At the time of creation of Marcos, approval in a plebiscite of the creation of a local government unit is not required. Section 10, Article X of the 1987 Constitution provides that: 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 40 subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.

The purpose of the above constitutional provision was acknowledged by the Court through Justice Reynato S. Puno 41 in Miranda v. Aguirre, where it was held that: 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 people's representatives. This plebiscite requirement is also in accord with the philosophy of the Constitution granting 42 more autonomy to local government units. 43 Nueva Era contends that the constitutional and statutory plebiscite requirement for the creation of a local government unit is applicable to this case. It posits that the claim of Marcos to its territory should be denied due to lack of the required plebiscite. We agree with Nueva Era's contention that Marcos' claim over parts of its territory is not tenable. However, the reason is not the lack of the required plebiscite under the 1987 and 1973 constitutions and the Local Government Code of 1991 but other reasons as will be discussed below. At the time Marcos was created, a plebiscite was not required by law to create a local government unit. Hence, Marcos was validly created without conducting a plebiscite. As a matter of fact, no plebiscite was conducted in Dingras, where it was derived. 44 Lex prospicit, non respicit. The law looks forward, not backward. It is the basic norm that provisions of the fundamental law should be given prospective application only, unless legislative intent for its retroactive application is 45 so provided. 46 In the comparable case of Ceniza v. Commission on Elections involving the City of Mandaue, the Court has this to say: Petitioners assail the charter of the City of Mandaue as unconstitutional for not having been ratified by the residents of the city in a plebiscite. This contention is untenable. The Constitutional requirement that the creation, division, merger, abolition, or alteration of the boundary of a province, city, municipality, or barrio should be subject to the approval by the majority of the votes cast in a plebiscite in the governmental unit or units affected is a new requirement that came into being only with the 1973 Constitution. It is prospective in character and therefore cannot affect the creation of the City of Mandaue which came into existence on 47 June 21, 1969. (Citations omitted and underlining supplied). Moreover, by deciding this case, We are not creating Marcos but merely interpreting the law that created it. Its creation was already a fait accompli. Therefore, there is no reason for Us to further require a plebiscite. As pointed out by Justice Isagani Cruz, to wit: Finally, it should be observed that the provisions of the Constitution should be given only a prospective application unless the contrary is clearly intended. Were the rule otherwise, rights already acquired or vested might be unduly disturbed or withdrawn even in the absence of an unmistakable intention to place them 48 within the scope of the Constitution. No part of Nueva Era's territory was taken for the creation of Marcos under R.A. No. 3753. Only the barrios (now barangays) of Dingras from which Marcos obtained its territory are named in R.A. No. 3753. To wit: SECTION 1. The barrios of Capariaan, Biding, Escoda, Culao, Alabaan, Ragas and Agunit in the Municipality of Dingras, Province of Ilocos Norte, are hereby separated from the said municipality and constituted into a new and separate municipality to be known as the Municipality of Marcos, with the following boundaries: Since only the barangays of Dingras are enumerated as Marcos' source of territory, Nueva Era's territory is, therefore, excluded. Under the maxim expressio unius est exclusio alterius, the mention of one thing implies the exclusion of another thing not mentioned. If a statute enumerates the things upon which it is to operate, everything else must necessarily and by 49 implication be excluded from its operation and effect. This rule, as a guide to probable legislative intent, is based 50 upon the rules of logic and natural workings of the human mind. Had the legislature intended other barangays from Nueva Era to become part of Marcos, it could have easily done so by clear and concise language. Where the terms are expressly limited to certain matters, it may not by interpretation 51 or construction be extended to other matters. The rule proceeds from the premise that the legislature would not have made specified enumerations in a statute had the intention been not to restrict its meaning and to confine its 52 terms to those expressly mentioned. Moreover, since the barangays of Nueva Era were not mentioned in the enumeration of barangays out of which the territory of Marcos shall be set, their omission must be held to have been done intentionally. This conclusion finds support in the rule of casus omissus pro omisso habendus est, which states that a person, object or thing omitted 53 from an enumeration must be held to have been omitted intentionally.

Furthermore, this conclusion on the intention of the legislature is bolstered by the explanatory note of the bill which paved the way for the creation of Marcos. Said explanatory note mentioned only Dingras as the mother municipality of Marcos. Where there is ambiguity in a statute, as in this case, courts may resort to the explanatory note to clarify the 54 ambiguity and ascertain the purpose and intent of the statute. Despite the omission of Nueva Era as a mother territory in the law creating Marcos, the latter still contends that said law included Nueva Era. It alleges that based on the description of its boundaries, a portion of Nueva Era is within its territory. The boundaries of Marcos under R.A. No. 3753 read: On the Northwest, by the barrios Biding-Rangay boundary going down to the barrios Capariaan-Gabon boundary consisting of foot path and feeder road; on the Northeast, by the Burnay River which is the common boundary of barrios Agunit and Naglayaan; on the East, by the Ilocos Norte-Mt. Province boundary; on the South, by the Padsan River which is at the same time the boundary between the municipalities of Banna and Dingras; on the West and Southwest, by the boundary between the municipalities of Batac and Dingras. Marcos contends that since it is "bounded on the East, by the Ilocos Norte-Mt. Province boundary," a portion of Nueva Era formed part of its territory because, according to it, Nueva Era is between the Marcos and Ilocos Norte-Mt. Province boundary. Marcos posits that in order for its eastern side to reach the Ilocos Norte-Mt. Province boundary, it will necessarily traverse the middle portion of Nueva Era. Marcos further claims that it is entitled not only to the middle portion of Nueva Era but also to its northern portion which, as a consequence, was isolated from the major part of Nueva Era. We cannot accept the contentions of Marcos. Only Dingras is specifically named by law as source territory of Marcos. Hence, the said description of boundaries of Marcos is descriptive only of the listed barangays of Dingras as a compact and contiguous territory. Considering that the description of the eastern boundary of Marcos under R.A. No. 3753 is ambiguous, the same must be interpreted in light of the legislative intent. 55 The law must be given a reasonable interpretation, to preclude absurdity in its application. We thus uphold the legislative intent to create Marcos out of the territory of Dingras only. Courts must give effect to the general legislative intent that can be discovered from or is unraveled by the four corners of the statute, and in order to discover said intent, the whole statute, and not only a particular provision 56 thereof, should be considered. Every section, provision or clause of the statute must be expounded by reference to each other in order to arrive at the effect contemplated by the legislature. The intention of the legislator must be 57 ascertained from the whole text of the law, and every part of the act is to be taken into view. It is axiomatic that laws should be given a reasonable interpretation, not one which defeats the very purpose for which they were passed. This Court has in many cases involving the construction of statutes always cautioned against narrowly interpreting a statute as to defeat the purpose of the legislature and stressed that it is of the essence of judicial duty to construe statutes so as to avoid such a deplorable result (of injustice or absurdity) and that 58 therefore "a literal interpretation is to be rejected if it would be unjust or lead to absurd results." Statutes are to be construed in the light of the purposes to be achieved and the evils sought to be remedied. Thus, in construing a statute, the reason for its enactment should be kept in mind and the statute should be construed with reference to the intended scope and purpose. The court may consider the spirit and reason of the statute, where a 59 literal meaning would lead to absurdity, contradiction, injustice, or would defeat the clear purpose of the lawmakers. WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals is partly REVERSED. The Decision of the Regional Trial Court in Ilocos Norte is Reinstated. SO ORDERED. THE SANGGUNIANG BARANGAY OF G.R. No. 170626 BARANGAY DON MARIANO MARCOS, MUNICIPALITY OF BAYOMBONG PROVINCE OF NUEVA VISCAYA represented by BARANGAY Present: KAGAWAD JOSE CENEN SANTOS, MARIO BACUD, WALTER FRANCISCO, ROSITA SEBASTIAN, LAURETA CABAUATAN, CECILIA YNARES-SANTIAGO, J., ALINDAYU and MELY SIMANGAN, Chairperson, Petitioners, AUSTRIA-MARTINEZ, CHICO-NAZARIO, - versus NACHURA, and REYES, JJ. PUNONG BARANGAY SEVERINO MARTINEZ, Respondent. Promulgated:

March 3, 2008 x---------------------------- ---------------------x

DECISION

CHICO-NAZARIO, J.:

This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the Orders dated 20 [1] [2] October 2005 and 30 November 2005 of the Regional Trial Court (trial court), Branch 27, of Bayombong, Nueva Vizcaya, in Special Civil Action No. 6727. In its assailed Orders, the trial court ruled that theSangguniang Bayan of Bayombong, Neuva Vizcaya (Sangguniang Bayan), exceeded its jurisdiction when it imposed upon respondent Severino Martinez the administrative penalty of removal from office. Petitioner Sangguniang Barangay is the legislative body of Barangay Don Mariano Marcos, Bayombong, Nueva Vizcaya, a local government unit created, organized and existing as such under pertinent laws of the Republic of the Philippines. Respondent Martinez is the incumbent Punong Barangay of the said [3] local government unit. On 5 November 2004, Martinez was administratively charged with Dishonesty and Graft and Corruption by petitioner through the filing of a verified complaint before the Sangguniang Bayan as the disciplining authority over [4] elective barangay officials pursuant to Section 61 of Rep. Act No. 7160, otherwise known as the Local Government Code. Petitioner filed with the Sangguniang Bayan an Amended Administrative Complaint against Martinez on 6 December 2004 for Dishonesty, Misconduct in Office and Violation of the Anti-Graft and Corrupt Practices [5] Act. Petitioner alleged that Martinez committed the following acts: 1. Failure to submit and fully remit to the Barangay Treasurer the income of their solid waste management project since 2001 particularly the sale of fertilizer derived from composting. 2. Failure to submit/remit to the barangay treasurer the sale of recyclable materials taken from garbage collection. 3. Using the garbage truck for other purposes like hauling sand and gravel for private persons without monetary benefit to the barangay because no income from this source appears in the year end report even if payments were collected x x x. 4. Using/spending barangay funds for repair, gasoline, lubricants, wheels and other spare parts of the garbage truck instead of using the money or income of said truck from the garbage fees collected as income from its Sold Waste Management Project. x x x. 5. Unliquidated traveling expenses for Seminar/Lakbay-Aral in 2003 because although a cash advance was made by the respondent for the said purpose, he, however, did not attend said seminar because on the dates when he was supposed to be on seminar they saw him in the barangay. x x x. 6. That several attempts to discuss said problem during sessions were all in vain because [6] respondent declined to discuss it and would adjourn the session.x x x.

Upon his failure to file an Answer to the Amended Administrative Complaint dated 6 December 2004, Martinez was declared by the Sangguniang Bayan as in default. Pending the administrative [7] proceedings, Martinez was placed under preventive suspension for 60 days or until 8 August 2005. On 28 July 2005, the Sangguniang Bayan rendered its Decision which imposed upon Martinez the penalty of [8] removal from office. The Decision dated 28 July of Bayombong, Nueva Ecija, Severino Bagasao, 2005 was for conveyed to the Municipal its implementation. On 3 Mayor August

2005, Municial Mayor Bagasao issued a Memorandum, wherein he stated that the Sanggunaing Bayan is not empowered to order Martinezs removal from service. However, the Decision remains valid until reversed and must be executed by him. For the meantime, he ordered the indefinite suspension of Martinez since the period of appeal [9] [10] had not yet lapsed. The dispositive portion of the said Memorandum states that: The FOREGOING considered come AUGUST 8, 2005, respondent SEVERINO D. MARTINEZ is hereby directed NOT to ASSUME and DISCHARGE the functions of the Office of the Punong Barangay of Barangay Don Mariano Marcos, Bayombong, Nueva Vizcaya and for complainant JOSE CENEN SANTOS to CONTINUE assuming and discharging the functions of the said office in ACTING CAPACITY pursuant to the provisions of Sections 67 and 68 of Republic Act No. 7160.

On 26 August 2005, Martinez filed a Special Civil Action for Certiorari with a prayer for Temporary Restraining Order and Preliminary Injunction before the trial court against petitioner, the Sangguniang Bayan and Mayor Bagasao questioning the validity of the Decision dated 28 July 2005 of the Sangguniang Bayan. This case was docketed as Special Civil Action No. 6727, which was initially heard by Branch 28, but later raffled to Branch 27 [11] of the trial court. On 20 October 2005, the trial court issued an Order declaring the Decision of the Sangguniang Bayan and the Memorandum of Mayor Bagasao void. It maintained that the proper courts, and not the petitioner, are empowered to remove an elective local official from office, in accordance with Section 60 of the Local Government Code. Thus, the Order of the Sangguniang Bayan removing Martinez from service is void. As a consequence, Mayor Bagasao cannot prevent Martinezfrom assuming his office on the basis of a void order. The trial court further ruled that Martinez properly availed himself of the remedy of Special Civil Action, where the order assailed was a [12] patent nullity. On 10 November 2005, petitioner filed a Motion for Reconsideration of the trial courts Order dated 10 [14] October 2005. The trial court denied the said motion in another Order dated 30 November 2005. Hence, the present petition was filed. Although Martinezs term as Punong Baranggay expired upon the holding of the 29 October 2007 Synchronized Barangay and Sangguniang Kabataan elections and, thus, rendering this petition moot and academic, [15] the Court will nevertheless settle a legal question that is capable of repetition yet evading review. The pivotal issue in this case is whether or not the Sangguniang Bayan may remove Martinez, an elective local official, from office. The pertinent legal provisions and cases decided by this Court firmly establish that the Sanggunaing Bayan is not empowered to do so. Section 60 of the Local Government Code conferred upon the courts the power to remove elective local officials from office: Section 60. Grounds for Disciplinary Actions.An elective local official may be disciplined, suspended, or removed from office on any of the following grounds: x x x x. An elective local official may be removed from office on the grounds enumerated above by order of the proper court. (Emphasis provided.)
[16] [13]

During the deliberations of the Senate on the Local Government Code, the legislative intent to confine to the courts, i.e., regional trial courts, theSandiganbayan and the appellate courts, jurisdiction over cases involving the removal of elective local officials was evident: Senator Pimentel. This has been reserved, Mr. President, including the issue of whether or not the Department Secretary or the Office of the President can suspend or remove an elective official. Senator Saguisag. For as long as that is open for some later disposition, may I just add the following thought: It seems to me that instead of identifying only the proper regional trial

court or the Sandiganbayan, and since we know that in the case of a regional trial court, particularly, a case may be appealed or may be the subject of an injunction, in the framing of this later on, I would like to suggest that we consider replacing the phrase PROPER REGIONAL TRIAL COURT OR THE SANDIGANBAYAN simply by COURTS. Kasi po, maaaring sabihin nila na mali iyong regional trial court o ang Sandiganbayan. Senator Pimentel. OR THE PROPER COURT. Senator Saguisag. OR THE PROPER COURT. Senator Pimentel. Thank you. We are willing to accept that now, Mr. President. Senator Saguisag. It is to be incorporated in the phraseology that we will craft to capture the other ideas that have been elevated. (Emphasis provided.)
[17]

In Salalima v. Guingona, Jr., the Court en banc categorically ruled that the Office of the President is without any power to remove elected officials, since the power is exclusively vested in the proper courts as expressly provided for in the last paragraph of Section 60 of the Local Government Code. It further invalidated Article 125, Rule XIX of the Rules and Regulations Implementing the Local Government Code of 1991, which provided that: Article 125. Grounds for Disciplinary Actions. x x x. x x x x. (b) An elective local official may be removed from office on the grounds enumerated in paragraph (a) of this Article by order of the proper court or the disciplining authority whichever first acquires jurisdiction to the exclusion of the other.

The Court nullified the aforequoted rule since the Oversight Committee that prepared the Rules and Regulations of the Local Government Code exceeded its authority when it granted to the disciplining authority the power to remove elective officials, a power which the law itself granted only to the proper courts. Thus, it is clear that under the law, the Sangguniang Bayan is not vested with the power to remove Martinez. Petitioner contends that administrative cases involving elective barangay officials may be filed with, heard and decided by the Sangguniang Panlungsod orSangguniang Bayan concerned, which can, thereafter, impose a penalty of removal from office. It further claims that the courts are merely tasked with issuing the order of removal, [18] after the Sangguniang Panlungsod or Sangguniang Bayan finds that a penalty of removal is warranted. The aforementioned position put forward by the petitioner would run counter to the rationale for making the [19] removal of elective officials an exclusive judicial prerogative. In Pablico v. Villapando, the court declared that: It is beyond cavil, therefore, that the power to remove erring elective local officials from [20] service is lodged exclusively with the courts. Hence, Article 124 (sic 125) (b), Rule XIX, of the Rules and Regulations Implementing the Local Government Code, insofar as it vests power on the disciplining authority to remove from office erring elective local officials, is void for being repugnant to the last paragraph of Section 60 of the Local Government Code of 1991. The law on suspension or removal of elective public officials must be strictly construed and applied, and the authority in whom such power of suspension or removal is vested must exercise it with utmost good faith, for what is involved is not just an ordinary public official but one chosen by the people through the exercise of their constitutional right of suffrage. Their will must not be put to naught by the caprice or partisanship of the disciplining authority. Where the disciplining authority is given only the power to suspend and not the power to remove, it should not be permitted to manipulate the law by usurping the power to remove. (Emphasis supplied.)

The rule which confers to the proper courts the power to remove an elective local official from office is intended as a check against any capriciousness or partisan activity by the disciplining authority. Vesting the local legislative body with the power to decide whether or not a local chief executive may be removed from office, and only relegating to the courts a mandatory duty to implement the decision, would still not free the resolution of the case from the

capriciousness or partisanship of the disciplining authority. Thus, the petitioners interpretation would defeat the clear intent of the law. Moreover, such an arrangement clearly demotes the courts to nothing more than an implementing arm of the Sangguniang Panlungsod, or Sangguniang Bayan. This would be an unmistakable breach of the doctrine on separation of powers, thus placing the courts under the orders of the legislative bodies of local governments. The courts would be stripped of their power of review, and their discretion in imposing the extreme penalty of removal from office is thus left to be exercised by political factions which stand to benefit from the removal from office of the local elective official concerned, the very evil which Congress sought to avoid when it enacted Section 60 of the Local Government Code. Congress clearly meant that the removal of an elective local official be done only after a trial before the appropriate court, where court rules of procedure and evidence can ensure impartiality and fairness and protect against political maneuverings. Elevating the removal of an elective local official from office from an administrative case to a court case may be justified by the fact that such removal not only punishes the official concerned but also, in effect, deprives the electorate of the services of the official for whom they voted. As the law stands, Section 61 of the Local Government Code provides for the procedure for the filing of an administrative case against an erring elective barangay official before the Sangguniang Panlungsod or Sangguniang Bayan. However, the Sangguniang Panlungsod or Sangguniang Bayan cannot order the removal of an erring elective barangay official from office, as the courts are exclusively vested with this power under Section 60 of the Local Government Code. Thus, if the acts allegedly committed by the barangay official are of a grave nature and, if found guilty, would merit the penalty of removal from office, the case should be filed with the regional trial court. Once the court assumes jurisdiction, it retains jurisdiction over the case even if it would be subsequently apparent during the trial that a penalty less than removal from office is appropriate. On the other hand, the most extreme penalty that the Sangguniang Panlungsod or Sangguniang Bayan may impose on the erring elective barangay official is suspension; if it deems that the removal of the official from service is warranted, then it can resolve that the proper charges be filed in court. Petitioner alleged that an interpretation which gives the judiciary the power to remove local elective officials violates the doctrine of separation of powers. This allegation runs contrary to the 1987 Constitution itself, as well as jurisprudence. The 1987 Constitution is explicit in defining the scope of judicial power. It establishes the authority of the courts to determine in an appropriate action the validity of acts of the political departments. It speaks of judicial [21] prerogative in terms of duty. Paragraph 2, Section 1, Article VIII of the 1987 Constitution, provides that: 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 provided.)

The doctrine of separation of powers is not absolute in its application; rather, it should be applied in accordance with the principle of checks and balances. The removal from office of elective officials must not be tainted with partisan politics and used to defeat the will of the voting public. Congress itself saw it fit to vest that power in a more impartial tribunal, the court. Furthermore, the local government units are not deprived of the right to discipline local elective officials; rather, they are prevented from imposing the extreme penalty of dismissal. Petitioner questions the Decision dated 20 October 2005 of the trial court for allowing the petition filed before it as an exception to the doctrine of exhaustion of administrative remedies. If, indeed, the Sangguniang Bayan had no power to remove Martinez from office, then Martinez should have sought recourse from theSangguniang Panlalawigan. This Court upholds the ruling of the trial court. The doctrine of exhaustion of administrative remedies calls for resort first to the appropriate administrative authorities in the resolution of a controversy falling under their jurisdiction before the same may be elevated to the courts of justice for review. Non-observance of the doctrine results in lack of a cause of action, which is one of the [22] grounds allowed by the Rules of Court for the dismissal of the complaint. The doctrine of exhaustion of administrative remedies, which is based on sound public policy and practical consideration, is not inflexible. There are instances when it may be dispensed with and judicial action may be validly

resorted to immediately. Among these exceptions are: 1) where there is estoppel on the part of the party invoking the doctrine; 2) where the challenged administrative act is patently illegal, amounting to lack of jurisdiction; 3) where there is unreasonable delay or official inaction that will irretrievably prejudice the complainant; 4) where the amount involved is relatively small as to make the rule impractical and oppressive; 5) where the question raised is purely legal and will ultimately have to be decided by the courts of justice; 6) where judicial intervention is urgent; 7) where its application may cause great and irreparable damage; 8) where the controverted acts violate due process; 9) when the issue of non-exhaustion of administrative remedies has been rendered moot; 10) where there is no other plain, speedy and adequate remedy; 11) when strong public interest is involved; and 13) [23] in quo warrantoproceedings. As a general rule, no recourse to courts can be had until all administrative remedies have been exhausted. However, this rule is not applicable where the challenged administrative act is patently illegal, amounting to lack of jurisdiction and where the question or questions involved are essentially judicial. In this case, it is apparent that the Sangguniang Bayan acted beyond its jurisdiction when it issued the assailed Order dated 28 July 2005 removing Martinez from office. Such act was patently illegal and, therefore, Martinez was no longer required to avail himself of an administrative appeal in order to annul the said [24] Order of theSangguniang Bayan. Thus, his direct recourse to regular courts of justice was justified. In addition, this Court in Castro v. Gloria declared that where the case involves only legal questions, the litigant need not exhaust all administrative remedies before such judicial relief can be sought. The reason behind providing an exception to the rule on exhaustion of administrative remedies is that issues of law cannot be resolved with finality by the administrative officer. Appeal to the administrative officer would only be an exercise in futility. A [26] legal question is properly addressed to a regular court of justice rather than to an administrative body. In the present case, Martinez raised before the trial court the sole issue of whether the Sangguniang Bayan has jurisdiction over a case involving the removal of a local elective official from [27] office. In Martinezs petition before the trial court, only a le gal question was raised, one that will ultimately be resolved by the courts. Hence, appeal to the administrative officer concerned would only be circuitous and, therefore, should no longer be required before judicial relief can be sought. IN VIEW OF THE FOREGOING, the instant Petition is DENIED and the assailed Decision of the Bayombong RTC in Special Civil Action No. 6727 isAFFIRMED. SO ORDERED. Don Mariano Marcos v Martinez (2008) Ponente: Chico-Nazario Facts of the case: On Nov 5, 2004, the Sangguaniang Barangay of Don Mariano Marcos filed administrative charges of dishonesty and graft and corruption against Severino Martinez, its barangay captain, before the Sangguniang Bayan of Bayombong, Nueva Viscaya. It alleged that Martinez: 1. failed to submit and fully remit to the barangay treasurer the income from the solid waste management project for the past three years (since 2001), particularly the sale of fertilizer derived from composting; 2. failed to submit/remit to the barangay treasurer the sale of recyclable materials taken from the garbage collection 3. used the garbage truck for other purposes for private persons; the barangay derived no income from these activities because none were reported in the year-end report 4. spent barangay funds for the repair, upkeep and gasoline of the garbage truck, instead of using the money from the garbage fees collected under the Solid Waste Management Project 5. collected travelling expenses for a seminar/lakbay-aral in 2003 but did not attend the seminar, because he was in the barangay on the date of the seminar 6. refused to discuss the problems when these were raised during the barangay sessions, instead adjourning the session. Martinez failed to answer the complaint and was declared in default by the Sangguniang Bayan. He was placed under preventive suspension for 60 days in June 2005, until August 8 2005. On July 28, 2005, the Sangguniang Bayan rendered its decision, imposing upon Martinez the penalty of removal from office. The decision was conveyed to Bayombong Mayor Severino Bagasao for implementation. Bagasao however said he was not empowered to order Martinez removal from office, and instead ordered his indefinite suspension. He directed one of the barangay kagawads (Cenen Santos) to continue discharging the functions of the barangay captain in an acting capacity. Martinez filed a special civil action for certiorari with a prayer for temporary restraining order and preliminary injunction before the Bayombong RTC, questioning the validity of the Sangguniang Bayans order. The RTC held that both order of the Sangguniang Bayan and Bagasaos memorandum were void. It held that the proper court and not
[25]

the Sangguniang Bayan, is empowered to remove an elective local official from office, citing Section 60 of the Local Government Code. Neither could Bagasao prevent Martinez from assuming his office on the basis of a void order. The case was appealed to the Supreme Court. Martinez term of office expired on October 29, 2007, which rendered the case moot an d academic, but the Supreme Court held that it was capable of repetition yet evading review and ruled on it. Issue: May the Sangguniang Bayan remove from office a local elective official? Held: NO. Ratio: Section 60 of the Local Government Code said that an elective local official may be removed from officeby order of the proper court. The Senate deliberations on the Local Government Code show that they meant the regional trial court of the Sandiganbayan. The phrase was replaced with the proper court b ecause the cases filed under these courts may still be appealed or be the subject of an injunction. The SC noted that in Salalima v Guingona, the Court en banc ruled that even the President of the Republic had no power to remove local elective officials because that power is exclusively vested in the proper courts. While administrative cases involving elective barangay officials may be filed with, heard and decided by the Sangguniang Panlungsod or Sangguniang Bayan, as the case may be, they could only suspend the erring local elective official. If removal of said official from office is warranted, they could resolve that charges be filed before the proper court. The SC said it was clear in Pablico v Villapando that the removal of elective officials was an exclusive judicial prerogative, and was meant to check any capriciousness or partisan activity by the disciplining authority. Congress clearly meant that the removal of an elective local official be done only after a trial before the appropriate court, where court rules of procedure and evidence can ensure impartiality and fairness and protect against political maneuverings. Elevating the removal of an elective local official from office from an administrative case to a court case may be justified by the fact that such removal not only punishes the official concerned but also, in effect, deprives the electorate of the services of the official for whom they voted. Thus, if the acts allegedly committed by the barangay official are of a grave nature and, if fo und guilty, would merit the penalty of removal from office, the case should be filed with the regional trial court. Once the court assumes jurisdiction, it retains jurisdiction over the case even if it would be subsequently apparent during the trial that a penalty less than removal from office is appropriate. On the other hand, the most extreme penalty that the Sangguniang Panlungsod or Sangguniang Bayan may impose on the erring elective barangay official is suspension; if it deems that the removal of the official from service is warranted, then it can resolve that the proper charges be filed in court. -"The will of God will never take you to where the grace of God will not protect you." Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 166809 April 22, 2008 ATTY. ROMEO L. ERECE, petitioner, vs. LYN B. MACALINGAY, JOCELYN BASTIAN, LYMAN B. SALVADOR, BIENVENIDO L. REANO, BRIGIDA CECILIA R. ABRATIQUE, JEAN CORTEZ-MARZAN, FRANCISCO M. BILOG, ROSA P. ESPIRITU, ROLANDO EBREO, YANIE A. PITLONGAY, and VIRGILIO MAGPOC, respondents. DECISION AZCUNA, J.: 1 This is a petition for review on certiorari of the Decision of the Court of Appeals (CA) promulgated on January 7, 2005 affirming the Decision of the Civil Service Commission (CSC) which found petitioner Atty. Romeo L. Erece guilty of dishonesty and conduct prejudicial to the best interest of the service. The facts are as follows: Petitioner is the Regional Director of the Commission on Human Rights (CHR) Region I, whose office is located in San Fernando City, La Union. Respondent employees of the CHR Region I filed an Affidavit-Complaint dated October 2, 1998 against petitioner alleging that he denied them the use of the office vehicle assigned to petitioner, that petitioner still claimed transportation allowance even if he was using the said vehicle, and that he certified that he did not use any government vehicle, when in fact he did, in order to collect transportation allowance. The Affidavit-Complaint reads: xxx 4. That on September 10, 1998, we, Atty. Lynn Macalingay and Mr. Lyman Salvador were denied the use of the office vehicle as evidenced by the hereto attached copy of our denied Itinerary of Travel marked as Annex B; 5. That on August 5, 1998, I, Brigida Abratique requested for the use of the government vehicle but the same was denied by Atty. Erece for the reason that we would be using the same to Teachers Camp as evidenced by a copy of the denied trip ticket with the marginal notes of Atty. Erece hereto attached as Annex C;

6. That on May 29, 1998, the request of Brigida Cecilia Abratique and Francisco Bilog to use the vehicle within the City for field work purposes was again denied by Atty. Erece as he will accordingly use the same; 7. That on April 20, 1998, a proposed trip was likewise postponed by Atty. Erece on the ground that he will be using the vehicle as evidenced by a copy of the proposed Itinerary of Travel with marginal note of Atty. Erece xxx; 8. That on April, 1997, I, Atty. Jocelyn Bastian requested for the use of the vehicle as I need[ed] to go to the Benguet Provincial Jail but I was instructed to commute because he will use the vehicle. To my dismay, I found him still in the office when I returned from the Provincial Jail; 9. That such denials of the use of the vehicle are not isolated cases but were just a few of the numerous instances of conflicts of schedules regarding the use of the government vehicle and where we found ourselves always at the losing end because we are the subordinate employees; xxx 13. That Atty. Erece regularly receives and liquidates his Representation and Transportation Allowances (RATA) which at present is in the amount of FOUR THOUSAND PESOS (P4,000.00), the payroll of such and its liquidation could be made available upon request by an authority to the Resident Auditor but his liquidations for the month of April 1998 and September 1998 [are] hereto attached xxx; 14. That despite regular receipt of his RATA, Atty. Erece still prioritizes himself in the use of the office vehicle to the detriment of the public service; 15. That to compound things, he certifies in his monthly liquidation of his RATA that HE DID NOT USE ANY GOVERNMENT VEHICLE FOR THE SAID MONTH xxx which is a big lie because as already stated, he is the regular user of the government vehicle issued to CHR, Region I; 16. That I, Rolando C. Ebreo, the disbursing officer of the Regional Field Office hereby attest to the fact that no deductions in the RATA of Atty. Romeo L. Erece was ever done in connection with his regular use of the 2 government vehicle x x x." The CSC-Cordillera Administrative Region issued an Order dated October 9, 1998, directing petitioner to comment on the complaint. In compliance, petitioner countered, thus: xxx 4. In relation to paragraphs 2-D, 2-E and 2-G above cited, it is among the duties as per management supervisory function of the Regional HR Director to approve use or non-use of the official vehicle of the Region as it was memorandum receipted to him and the non-approval of the use of the same if it is not arbitrary and for justifiable reasons; said function of approval and disapproval rests on the Regional Human Rights Director and that function is not merely ministerial; 5. That I have issued a guideline that the official vehicle will not be used for the Mountain Provinces and Halsema Highway/Mountain Trail because of the poor road condition and to prevent breakdown and early deterioration of same xxx; 6. That Atty. Lynn B. Macalingay, one of the complainants had gone to Mt. Province to attend the Provincial Peace and Order Council meetings, conduct jail visitations and follow-up cases on many occasions using the regular bus trips in the spirit of the policy as mentioned in paragraph 4 xxx; 7. That all employees had used the vehicle on official business without exception, all complainants included xxx; 8. On September 10, 1998, Atty. Lynn Macalingay and Lyman Salvador had the use of the vehicle disapproved for the reasons conforming to paragraph 4 xxx; 9. On August 5, 1998, Atty. Erece disapproved the use of vehicle for use of Brigida Abratique because: a) The vehicle was available since July 30, 1998 for use in Happy Hallow but not utilized earlier xxx; b) On August 6, 1998, a DECS-CHR Seminar on Use Human Rights Exemplar was held at the Teachers Camp Baguio City and the vehicle was used to t ransport HR materials, overhead projector and for the overall use of the seminar upon the request of the Public Information and Education Office, Central Office, Commission on Human Rights through Susan Nuguid of CHR, Manila; xxx d) That Mrs. Abratique and Co. were asked to explain the unreasonable delay to attend to the case of Cherry Esteban which was subject of the disapproved travel; 10. On April 20, 1998, the itinerary of travel of Lyman Salvador was RESCHEDULED from April 22 & 23, 1998 to April 23 & 24, 1998 as the vehicle was used by Atty. Erece on an important travel to Manila upon order of no less than the Honorable Chairperson, Aurora Navarette-Recia of Commission on Human Rights xxx; xxx 12. As to the use of the vehicle by the Regional HR Director, same shall be subject to the allowance/disallowance of the COA Resident Auditor, likewise the Regional HR Director in all his travels

outside Baguio City, he does not claim bus and taxi fares per certification of Danilo Balino, the Administrative Officer Designate and Mr. Rolando Ebreo, the Cash Disbursing Officer, Annex Z; 13. In many cases, Atty. Romeo L. Erece has to maintain the vehicle including car washing thereof, garage parking at his residence to maintain and upkeep the vehicle and same is still in premium condition to the satisfaction of the office at no extra cost to the Commission; xxx 15. In support thereof, we move to dismiss this case as pure question on supervisory and management prerogative, which is reserved for the Office Head and a harassment move by disgruntled employees who are counter-charged hereof; 16. Annexes E and F of the complaint [are] misplaced and misleading because a clear and cognate reading of same does not reflect that I checked/marked the use of government vehicle in the certification and as such no dishonesty is involved; the documents speak for themselves. x x x Annex E is for the month of April, 1998 where the check marks are clear. On Annex F of t he complaint, no reference is made as to the fact that I did not use the government vehicle, if so, no allegation as to when I did use same for my 3 personal use." After a fact-finding investigation, the CSC Proper in CSC Resolution No. 99-1360 dated July 1, 1999 charged petitioner with Dishonesty and Grave Misconduct for using a government vehicle in spite of his receipt of the monthly transportation allowance and for certifying that he did not use any government vehicle, when in fact, he did, in order to receive the transportation allowance. Pertinent portions of the formal charge read: 1. That despite the regular receipt of Erece of his monthly Representation and Transportation Allowance (RATA) in the amount of P4,000.00, he still prioritizes himself in the use of the office vehicle (Tamaraw FX) in spite of the directive from the Central Office that he cannot use the service vehicle for official purposes and at the same time receive his transportation allowance; 2. That Erece did not comply with the directive of the Central Office addressed to all Regional Human Rights Directors, as follows: to regularize your receipt of the transportation allowance component of t he RATA to which you are entitled monthly, you are hereby directed to immediately transfer to any of your staff, preferably one of your lawyers, the memorandum receipt of the vehicle(s) now still in your name; 3. That he certified in his monthly liquidation of his RATA that he did not use any government vehicle for the corresponding month, which is not true because he is the regular user of the government vehicle issued to CHR-Region I. The foregoing facts and circumstances indicate that government service has been prejudiced by the acts of Erece. WHEREFORE, Romeo L. Erece is hereby formally charged with Dishonesty and Grave Misconduct. Accordingly, he is given five (5) days from receipt hereof to submit his Answer under oath and affidavits of his witnesses, if any, to the Civil Service Commission-Cordillera Administrative Region (CSC-CAR). On his Answer, he should indicate whether he elects a formal investigation or waives his right thereto. Any Motion to Dismiss, request for clarification or Bills of Particulars shall not be entertained by the Commission. Any of these pleadings interposed by the respondent shall be considered as an Answer and shall be evaluated as 4 such. Likewise, he is advised of his right to the assistance of counsel of his choice. After a formal investigation of the case, the CSC issued Resolution No. 020124, dated January 24. 2002, finding petitioner guilty of dishonesty and conduct prejudicial to the best interest of the service and penalizing him with dismissal from the service. Petitioner filed a petition for review of the CSC Resolution with the CA. In the Decision promulgated on January 7, 2005, the CA upheld the CSC Resolution, the dispositive portion of which reads: WHEREFORE, in view of the foregoing, the petition is DENIED and the assailed Resolutions of the Civil 5 Service Commission are hereby AFFIRMED. Hence, this petition. Petitioner raises these issues: 1. Whether or not the Court of Appeals erred in ruling that petitioner was not denied due process despite the admitted facts that respondents failed to identify and testify on their Affidavit-Complaint and that petitioner was denied of his right to cross-examine respondents on their Affidavit-Complaint. 2. Whether or not the Court of Appeals was correct in adopting in toto the conclusions of the CSC although they were based on mere assumptions. Petitioner contends that he was denied due process as he was not afforded the right to cross-examine his accusers and their witnesses. He stated that at his instance, in order to prevent delay in the disposition of the case, he was allowed to present evidence first to support the allegations in his Counter-Affidavit. After he rested his case, respondents did not present their evidence, but moved to submit their position paper and formal offer of evidence, which motion was granted by the CSC over his (petitioners) objection. Respondents then submitted their Position Paper and Formal Offer of Exhibits.

Petitioner submits that although he was allowed to present evidence first, it should not be construed as a waiver of his right to cross-examine the complainants. Although the order of presentation of evidence was not in conformity with the procedure, still petitioner should not be deemed to have lost his right to cross-examine his accusers and their witnesses. This may be allowed only if he expressly waived said right. The Court agrees with the CA that petitioner was not denied due process when he failed to cross-examine the complainants and their witnesses since he was given the opportunity to be heard and present his evidence. In 6 administrative proceedings, the essence of due process is simply the opportunity to explain ones side. 7 Velez v. De Vera held: Due process of law in administrative cases is not identical with "judicial process" for a trial in court is not always essential to due process. While a day in court is a matter of right in judicial proceedings, it is otherwise in administrative proceedings since they rest upon different principles. The due process clause guarantees no particular form of procedure and its requirements are not technical. Thus, in certain proceedings of administrative character, the right to a notice or hearing are not essential to due process of law. The constitutional requirement of due process is met by a fair hearing before a regularly established administrative agency or tribunal. It is not essential that hearings be had before the making of a determination if thereafter, there is available trial and tribunal before which all objections and defenses to the making of such determination may be raised and considered. One adequate hearing is all that due process requires. . . . The right to cross-examine is not an indispensable aspect of due process . Nor is an actual hearing 8 always essential. . . . Next, petitioner contends that the CA erred in adopting in toto the conclusions of the CSC. Petitioner contends that the conclusion of the CSC proceeded from the premise that the petitioner was using the subject vehicle as his service vehicle, which he disputes, because he did not use the vehicle regularly. The evidence showed that the service vehicle was being used by the employees of the regional office for official purposes. He argues that although the service vehicle is still in his name, it should not be concluded that it is assigned to him as his service vehicle, thus disqualifying him from receiving transportation allowance. The Court is not persuaded. The pertinent conclusion of the CSC referred to by petitioner reads: At the outset, it must be stated that the entitlement to transportation allowance by certain officials and employees pursuant to RA 6688 presupposes that they are not assigned government vehicles. This was clarified by the Supreme Court in the case of Aida Domingo vs. COA, G.R. No. 112371, October 7, 1998, where it ruled, as follows: The provision of law in point is found in Section 28 of Republic Act 6688, otherwise known as the General Appropriations Act of 1989, to wit: Sec. 28. Representation and Transportation Allowances. ... The transportation allowance herein authorized shall not be granted to officials who are assigned a government vehicle or use government motor transportation, except as may be approved by the President of the Philippines. Unless otherwise provided by law, no amount appropriated in this Act shall be used to pay for representation and/or transportation allowances, whether commutable or reimbursable, which exceed the rates authorized under this Section. Previous administrative authorization not consistent with the rates and conditions herein specified shall no longer be valid and payment shall not be allowed. xxx In the case of Bustamante vs. Commission on Audit, 216 SCRA 134, decided by this Court on November 27, 1992, COA also disallowed the claim for transportation allowance of the legal counsel of National Power Corporation because he was already issued a government vehicle. Involving the circular aforementioned and almost the same facts as in this case, it was therein held that COA Circular No. 75-6 is categorical in prohibiting the use of government vehicles by officials receiving transportation allowance and in stressing that the use of government motor vehicle and claim for transportation allowance are mutually exclusive and incompatible. The issue need no longer be belabored for no less than this Court ruled in the aforesaid case that a government official, to whom a motor vehicle has been assigned, cannot, at the same time, claim transportation allowance. (Underscoring supplied) It is clear from the records that Director Edmundo S. Ancog, CHR-Central office (Field Operations office), issued a Memorandum dated February 27, 1998, addressed to all CHR Regional Directors in respect to Transportation Allowance. The Memorandum states that transportation allowance shall not be granted to Regional Directors whenever a government vehicle or use of government motor transportation is already assigned to them. It further emphasized that should they want to "avail regularization of their RATA," the Regional Directors must immediately transfer the vehicle to any of their staff/lawyer. Records show that Erece was issued a government vehicle since August 10, 1997 and he did not transfer the vehicle to any of his staff. Notwithstanding this fact and the said memorandum, he received transportation allowance particularly for the months of April and September 1998, as reflected in the Certification/s signed by him. This clearly resulted in undue prejudice to the best interest of the service.

The foregoing facts logically lead to the conclusion that the act of Erece in certifying that he has not used any government vehicle and consequently collecting Transportation Allowance despite the fact that a government vehicle was assigned to him constitutes the offenses of Dishonesty and Conduct Prejudicial to 9 the Best Interest of the Service. The above conclusion,as well as the Memorandum dated February 27, 1998 issued by Director Ancog to the CHR Regional Directors, are both very clear. Once a vehicle is assigned to a regional director, like petitioner, he is no longer entitled to transportation allowance unless he assigns the vehicle to another staff/lawyer. Since petitioner did not assign the subject vehicle assigned to him to someone else, he is not entitled to transportation allowance. Contrary to the argument of petitioner, there is no qualification that the assigned vehicle should be for the exclusive use of the service vehicle of the regional director alone to disqualify him from receiving transportation allowance. Since the records show that petitioner collected transportation allowance even if a government vehicle had been assigned to him, the CA did not err in sustaining the decision of the CSC finding petitioner guilty of dishonesty and conduct prejudicial to the best interest of the service and penalizing him with dismissal from the service. WHEREFORE, the petition is denied. The Decision of the Court of Appeals promulgated on January 7, 2005 isAFFIRMED. No costs. SO ORDERED. THE CIVIL SERVICE G.R. No. 168766 COMMISSION, Petitioner, Present: PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO, VELASCO, JR., NACHURA, REYES, LEONARDO-DE CASTRO, and BRION, JJ. Promulgated: HENRY A. SOJOR, Respondent. May 22, 2008

- versus -

x------------------------------------ --------------x

DECISION

REYES, R.T., J.:

IS the president of a state university outside the reach of the disciplinary jurisdiction constitutionally granted to the Civil Service Commission (CSC) over all civil servants and officials?

Does the assumption by the CSC of jurisdiction over a president of a state university violate academic freedom? The twin questions, among others, are posed in this petition for review on certiorari of the Decision [2] Court of Appeals (CA) which annulled two (2)CSC Resolutions against respondent Henry A. Sojor. The Facts
[1]

of the

The uncontroverted facts that led to the controversy, as found by the CSC and the CA, are as follows: On August 1, 1991, respondent Sojor was appointed by then President Corazon Aquino as president of the Central Visayas Polytechnic College (CVPC) inDumaguete City. In June 1997, Republic Act (R.A.) No. 8292, or the Higher Education Modernization Act of 1997, was enacted. This law mandated that a Board of Trustees (BOT) be formed to act as the governing body in state colleges. The BOT of CVPC appointed respondent as president, with a [3] four-year term beginning September 1998 up to September 2002. Upon the expiration of his first term of office in [4] 2002, he was appointed president of the institution for a second four-year term, expiring on September 24, 2006. On June 25, 2004, CVPC was converted into the Negros Oriental State University (NORSU). Regents (BOR) succeeded the BOT as its governing body.
[5]

A Board of

Meanwhile, three (3) separate administrative cases against respondent were filed by CVPC faculty members before the CSC Regional Office (CSC-RO) No. VIIin Cebu City, to wit: 1. ADMC DC No. 02-20(A) Complaint for dishonesty, grave misconduct and conduct prejudicial to the best interest of the service filed on June 26, 2002 by Jose Rene A. Cepe and Narciso P. Ragay. It was alleged that respondent approved the release of salary differentials despite the [6] absence of the required Plantilla and Salary Adjustment Form and valid appointments. ADM DC No. 02-20 Complaint for dishonesty, misconduct and falsification of official documents filed on July 10, 2002 by Jocelyn Juanon and Carolina Fe Santos. The complaint averred that respondent maliciously allowed the antedating and falsification of the reclassification differential payroll, to the prejudice of instructors and professors who have [7] pending request for adjustment of their academic ranks. ADM DC No. 02-21 Complaint for nepotism filed on August 15, 2002 by Rose Marie Palomar, a former part-time instructor of CVPC. It was alleged that respondent appointed his half-sister, Estrellas Sojor-Managuilas, as casual clerk, in violation of the provisions against [8] nepotism under the Administrative Code.

2.

3.

Before filing his counter-affidavits, respondent moved to dismiss the first two complaints on grounds of lack of jurisdiction, bar by prior judgment and forum shopping. He claimed that the CSC had no jurisdiction over him as a presidential appointee. Being part of the noncompetitive or unclassified service of the government, he was exclusively under the disciplinary jurisdiction of the Office of the President (OP). He argued that CSC had no authority to entertain, investigate and resolve charges against him; that the Civil Service Law contained no provisions on the investigation, discipline, and removal of presidential appointees. He also pointed out that the subject matter of the complaints had already been resolved by [9] the Office of the Ombudsman. Finding no sufficient basis to sustain respondents arguments, the CSC-RO denied his motion to dismiss in its [10] [11] Resolution dated September 4, 2002. His motion for reconsideration was likewise denied. Thus, respondent was formally charged with three administrative cases, namely: (1) Dishonesty, Misconduct, and Falsification of Official Document; (2) Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest of the Service; and [12] (3) Nepotism. Respondent appealed the actions of the regional office to the Commission proper (CSC), raising the same [13] arguments in his motion to dismiss. He argued that since the BOT is headed by the Committee on Higher Education Chairperson who was under the OP, the BOT was also under the OP. Since the president of CVPC was appointed by the BOT, then he was a presidential appointee. On the matter of the jurisdiction granted to [14] CSC by virtue of Presidential Decree (P.D.) No. 807 enacted in October 1975, respondent contended that this was [15] superseded by the provisions of R.A. No. 8292, a later law which granted to the BOT the power to remove university officials. CSC Disposition In a Resolution dated March 30, 2004, the CSC dismissed respondents appeal and authorized its regional office to proceed with the investigation. He was also preventively suspended for 90 days. The fallo of the said resolution states:
[16]

WHEREFORE, the appeal of Henry A. Sojor, President of Central Visayas Polytechnic College, is hereby DISMISSED. The Civil Service Commission Regional Office No. VII,Cebu City, is authorized to proceed with the formal investigation of the cases against Sojor and submit the investigation reports to the Commission within one hundred five (105) days from receipt [17] hereof. Finally, Sojor is preventively suspended for ninety (90) days. In decreeing that it had jurisdiction over the disciplinary case against respondent, the CSC opined that his claim that he was a presidential appointee had no basis in fact or in law. CSC maintained that it had concurrent jurisdiction with the BOT of the CVPC. We quote: His appointment dated September 23, 2002 was signed by then Commission on Higher Education (CHED) Chairman Ester A. Garcia. Moreover, the said appointment expressly stated that it was approved and adopted by the Central Visayas Polytechnic College Board of Trustees on August 13, 2002 in accordance with Section 6 of Republic Act No. 8292 (Higher education Modernization Act of 1997), which explicit ly provides that, He (the president of a state college) shall be appointed by the Board of Regents/Trustees, upon recommendation of a duly constituted search committee. Since the President of a state college is appointed by the Board of Regents/Trustees of the college concerned, it is crystal clear that he is not a presidential appointee. Therefore, it is without doubt that Sojor, being the President of a state college (Central Visayas Polytechnic College), is within the disciplinary jurisdiction of the Commission. The allegation of appellant Sojor that the Commission is bereft of disciplinary jurisdiction over him since the same is exclusively lodged in the CVPC Board of Trustees, being the appointing authority, cannot be considered. The Commission and the CVPC Board of Trustees have concurrent jurisdiction over cases against officials and employees of the said agency. Since the three (3) complaints against Sojor were filed with the Commission and not with the CVPC, then the former already acquired disciplinary jurisdiction over the appellant to the [18] exclusion of the latter agency. (Emphasis supplied) The CSC categorized respondent as a third level official, as defined under its rules, who are under the jurisdiction of the Commission proper. Nevertheless, it adopted the formal charges issued by its regional office and ordered it to proceed with the investigation: Pursuant to the Uniform Rules on Administrative Cases in the Civil Service, Sojor, being a third level official, is within the disciplinary jurisdiction of the Commission Proper. Thus, strictly speaking, the Commission has the sole jurisdiction to issue the formal charge against Sojor. x x x However, since the CSC RO No. VII already issued the formal charges against him and found merit in the said formal charges, the same is adopted. The CSC RO No. VII is authorized to proceed with the formal investigation of the case against Sojor in accordance with the [19] procedure outlined in the aforestated Uniform Rules. (Emphasis supplied) No merit was found by the CSC in respondents motion for reconsideration and, accordingly, denied it with [20] finality on July 6, 2004. Respondent appealed the CSC resolutions to the CA via a petition for certiorari and prohibition. He alleged that the CSC acted without or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction when it issued the assailed resolutions; that CSC encroached upon the academic freedom of CVPC; and that the power to remove, suspend, and discipline the president of CVPC was exclusively lodged in the BOT of CVPC.

CA Disposition On September 29, 2004, the CA issued a writ of preliminary injunction directing the CSC to cease and desist [21] from enforcing its Resolution dated March 30, 2004and Resolution dated July 6, 2004. Thus, the formal investigation of the administrative charges against Sojor before the CSC-RO was suspended. On June 27, 2005, after giving both parties an opportunity to air their sides, the CA resolved in favor of respondent. It annulled the questioned CSC resolutions and permanently enjoined the CSC from proceeding with the administrative investigation. The dispositive part of the CA decision reads:

WHEREFORE, in view of all the foregoing, and finding that the respondent Civil Service Commission acted without jurisdiction in issuing the assailed Resolution Nos. 040321 and 040766 dated March 20, 2004 and July 6, 2004, respectively, the same are hereby ANNULLED and SET ASIDE. The preliminary injunction issued by this Court on September 29, 2004 is hereby made permanent. SO ORDERED.
[22]

The CA ruled that the power to appoint carries with it the power to remove or to discipline. It declared that [23] the enactment of R.A. No. 9299 in 2004, which converted CVPC into NORSU, did not divest the BOT of the power to discipline and remove its faculty members, administrative officials, and employees. Respondent was appointed as [24] president of CVPC by the BOT by virtue of the authority granted to it under Section 6 of R.A. No. 8292. The power of the BOT to remove and discipline erring employees, faculty members, and administrative officials as expressly provided for under Section 4 of R.A. No. 8292 is also granted to the BOR of NORSU under Section 7 of R.A. No. 9299. The said provision reads: Power and Duties of Governing Boards. The governing board shall have the following specific powers and duties in addition to its general powers of administration and exercise of all the powers granted to the board of directors of a corporation under Section 36 of Batas Pambansa Blg. 68, otherwise known as the Corporation Code of the Philippines: xxxx to fix and adjust salaries of faculty members and administrative officials and employees x x x; and to remove them for cause in accordance with the requirements of due process of law. (Emphasis added)
[25]

The CA added that Executive Order (E.O.) No. 292, which grants disciplinary jurisdiction to the CSC over all branches, subdivisions, instrumentalities, and agencies of the government, including government-owned or controlled corporations with original charters, is a general law. According to the appellate court, E.O. No. 292 does not prevail [26] over R.A. No. 9299, a special law. Issues Petitioner CSC comes to Us, seeking to reverse the decision of the CA on the ground that THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT PETITIONER ACTED WITHOUT JURISDICTION IN ISSUING [27] RESOLUTION NO. 040321 DATED MARCH 30, 2004 AND RESOLUTION NO. 04766 DATED JULY 6, 2004. Our Ruling The petition is meritorious.

I. Jurisdiction of the CSC The Constitution grants to the CSC administration over the entire civil service. As defined, the civil service embraces every branch, agency, subdivision, and instrumentality of the government, including every [29] government-owned or controlled corporation. It is further classified into career and non-career service positions. Career service positions are those where: (1) entrance is based on merit and fitness or highly technical qualifications; (2) there is opportunity for advancement to higher career positions; and (3) there is security of tenure. These include: (1) Open Career positions for appointment to which prior qualification in an appropriate examination is required; (2) Closed Career positions which are scientific, or highly technical in nature; these include the faculty and academic staff of state colleges and universities, and scientific and technical
[28]

positions in scientific or research institutions which shall establish and maintain their own merit systems; (3) Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President; (4) Career officers, other than those in the Career Executive Service, who are appointed by the President, such as the Foreign Service Officers in the Department of Foreign Affairs; (5) Commissioned officers and enlisted men of the Armed Forces which shall maintain a separate merit system; (6) Personnel of government-owned or controlled corporations, whether performing governmental or proprietary functions, who do not fall under the non-career service; and (7) Permanent laborers, whether skilled, semi-skilled, or unskilled.
[30]

Career positions are further grouped into three levels. Entrance to the first two levels is determined through competitive examinations, while entrance to the third level is prescribed by the Career Executive Service [31] Board. The positions covered by each level are: (a) The first level shall include clerical, trades, crafts, and custodial service positions which involve non-professional or subprofessional work in a non-supervisory or supervisory capacity requiring less than four years of collegiate studies;

(b) The second level shall include professional, technical, and scientific positions which involve professional, technical, or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief level; and (c) The third level shall cover positions in the Career Executive Service.
[32]

On the other hand, non-career service positions are characterized by: (1) entrance not by the usual tests of merit and fitness; and (2) tenure which is limited to a period specified by law, coterminous with the appointing authority or subject to his pleasure, or limited to the duration of a particular project for which purpose employment [33] was made. The law states: The Non-Career Service shall include: (1) Elective officials and their personal or confidential staff; (2) Secretaries and other officials of Cabinet rank who hold their positions at the pleasure of the President and their personal or confidential staff(s); Chairman and members of commissions and boards with fixed terms of office and their personal or confidential staff; Contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific work or job, requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, which in no case shall exceed one year, and performs or accomplishes the specific work or job, under his own responsibility with a minimum of direction and supervision from the hiring agency; and Emergency and seasonal personnel.
[34]

(3)

(4)

(5)

It is evident that CSC has been granted by the Constitution and the Administrative Code jurisdiction over all civil service positions in the government service, whether career or non-career. From this grant of general [35] jurisdiction, the CSC promulgated the Revised Uniform Rules on Administrative Cases in the Civil Service. We find that the specific jurisdiction, as spelled out in the CSC rules, did not depart from the general jurisdiction granted to it

by law. The jurisdiction of the Regional Office of the CSC and the Commission central office (Commission Proper) is specified in the CSC rules as: Section 4. Jurisdiction of the Civil Service Commission. The Civil Service Commission shall hear and decide administrative cases instituted by, or brought before it, directly or on appeal, including contested appointments, and shall review decisions and actions of its offices and of the agencies attached to it. Except as otherwise provided by the Constitution or by law, the Civil Service Commission shall have the final authority to pass upon the removal, separation and suspension of all officers and employees in the civil service and upon all matters relating to the conduct, discipline and efficiency of such officers and employees. Section 5. Jurisdiction of the Civil Service Commission Proper. The Civil Service Commission Proper shall have jurisdiction over the following cases: A. Disciplinary 1. Decisions of Civil Service Regional Offices brought before it on petition for review; 2. Decisions of heads of departments, agencies, provinces, cities, municipalities and other instrumentalities, imposing penalties exceeding thirty days suspension or fine in an amount exceeding thirty days salary brought before it on appeal; 3. Complaints brought against Civil Service Commission Proper personnel; 4. Complaints against third level officials who are not presidential appointees; 5. Complaints against Civil Service officials and employees which are not acted upon by the agencies and such other complaints requiring direct or immediate action, in the interest of justice; 6. Requests for transfer of venue of hearing on cases being heard by Civil Service Regional Offices; 7. Appeals from the Order of Preventive Suspension; and 8. Such other actions or requests involving issues arising out of or in connection with the foregoing enumerations. B. Non-Disciplinary 1. Decisions of Civil Service Commission Regional Offices brought before it; 2. Requests for favorable recommendation on petition for executive clemency; 3. Protests against the appointment, or other personnel actions, involving third level officials; and 4. Such other analogous actions or petitions arising out of or in relation with the foregoing enumerations. Section 6. Jurisdiction of Civil Service Regional Offices . The Civil Service Commission Regional Offices shall have jurisdiction over the following cases: A. Disciplinary 1. Complaints initiated by, or brought before, the Civil Service Commission Regional Offices provided that the alleged acts or omissions were committed within the jurisdiction of the Regional Office, including Civil Service examination anomalies or irregularities and the persons complained of are employees of agencies, local or national, within said geographical areas; 2. Complaints involving Civil Service Commission Regional Office personnel who are appointees of said office; and 3. Petitions to place respondent under Preventive Suspension. B. Non-Disciplinary 1. Disapproval of appointments brought before it on appeal;

2.

Protests against the appointments of first and second level employees brought before it directly or on appeal. (Emphasis supplied)

Respondent, a state university president with a fixed term of office appointed by the governing board of trustees of the university, is a non-career civil service officer. He was appointed by the chairman and members of the governing board of CVPC. By clear provision of law, respondent is a non-career civil servant who is under the jurisdiction of the CSC. II. The power of the BOR to discipline officials and employees is not exclusive. CSC has concurrent jurisdiction over a president of a state university. Section 4 of R.A. No. 8292, or the Higher Education Modernization Act of 1997, under which law respondent was appointed during the time material to the present case, provides that the schools governing board shall have the general powers of administration granted to a corporation. In addition, Section 4 of the law grants to the board the power to remove school faculty members, administrative officials, and employees for cause: Section 4. Powers and Duties of Governing Boards. The governing board shall have the following specific powers and duties in addition to its general powers of administration and the exercise of all the powers granted to the board of directors of a corporation under Section 36 of Batas Pambansa Blg. 68, otherwise known as the Corporation Code of the Philippines: xxxx h) to fix and adjust salaries of faculty members and administrative officials and employees subject to the provisions of the revised compensation and classification system and other pertinent budget and compensation laws governing hours of service, and such other duties and conditions as it may deem proper; to grant them, at its discretion, leaves of absence under such regulations as it may promulgate, any provisions of existing law to the contrary not withstanding; and to remove them for cause in accordance with the requirements of due process of law . (Emphasis supplied) The above section was subsequently reproduced as Section 7(i) of the succeeding law that converted CVPC into NORSU, R.A. No. 9299. Notably, and in contrast with the earlier law, R.A. No. 9299 now provides that the administration of the university and exercise of corporate powers of the board of the school shall be exclusive: Sec. 4. Administration. The University shall have the general powers of a corporation set forth in Batas Pambansa Blg. 68, as amended, otherwise known as The Corporation Code of the Philippines. The administration of the University and the exercise of its corporate powers shall be vested exclusively in the Board of Regents and the president of the University insofar as authorized by the Board. Measured by the foregoing yardstick, there is no question that administrative power over the school exclusively belongs to its BOR. But does this exclusive administrative power extend to the power to remove its erring employees and officials? In light of the other provisions of R.A. No. 9299, respondents argument that the BOR has exclusive power to remove its university officials must fail. Section 7 of R.A. No. 9299 states that the power to remove faculty members, employees, and officials of the uni versity is granted to the BOR in addition to its general powers of administration. This provision is essentially a reproduction of Section 4 of its predecessor, R.A. No. 8292, demonstrating that the intent of the lawmakers did not change even with the enactment of the new law. For clarity, the text of the said section is reproduced below: Sec. 7. Powers and Duties of the Board of Regents. The Board shall have the following specific powers and duties in addition to its general powers of administrationand the exercise of all the powers granted to the Board of Directors of a corporation under existing laws: xxxx

i.

To fix and adjust salaries of faculty members and administrative officials and employees, subject to the provisions of the Revised Compensation and Position Classification System and other pertinent budget and compensation laws governing hours of service and such other duties and conditions as it may deem proper; to grant them, at its discretion, leaves of absence under such regulations as it may promulgate, any provision of existing law to the contrary notwithstanding; and to remove them for cause in accordance with the requirements of due process of [36] law. (Emphasis supplied)

Verily, the BOR of NORSU has the sole power of administration over the university. But this power is not exclusive in the matter of disciplining and removing its employees and officials. Although the BOR of NORSU is given the specific power under R.A. No. 9299 to discipline its employees and officials, there is no showing that such power is exclusive. When the law bestows upon a government body the jurisdiction to hear and decide cases involving specific matters, it is to be presumed that such jurisdiction is exclusive unless it be proved that another body is likewise vested with the same jurisdiction, in which case, both bodies have [37] concurrent jurisdiction over the matter. All members of the civil service are under the jurisdiction of the CSC, unless otherwise provided by law. Being a non-career civil servant does not remove respondent from the ambit of the CSC. Career or non-career, a civil service official or employee is within the jurisdiction of the CSC. This is not a case of first impression. In University of the Philippines v. Regino, this Court struck down the claim of exclusive jurisdiction of the UP BOR to discipline its employees. The Court held then: The Civil Service Law (PD 807) expressly vests in the Commission appellate jurisdiction in administrative disciplinary cases involving members of the Civil Service. Section 9(j) mandates that the Commission shall have the power to hear and decide administrative disciplinary cases instituted directly with it in accordance with Section 37 or brought to it on appeal. And Section 37(a) provides that, The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty (30) days, or fine in an amount exceeding thirty days salary, demotion in rank or salary or transfer, removal or dismissal from office. (Emphasis supplied) Under the 1972 Constitution, all government-owned or controlled corporations, regardless of the manner of their creation, were considered part of the Civil Service. Under the 1987 Constitution, only government-owned or controlled corporations with original charters fall within the scope of the Civil Service pursuant to Article IX-B, Section 2(1), which states: The Civil Service embraces all branches, subdivisions, instrumentalities, and agencies of the government, including government-owned or controlled corporations with original charters. As a mere government-owned or controlled corporation, UP was clearly a part of the Civil Service under the 1973 Constitution and now continues to be so because it was created by a special law and has an original charter. As a component of the Civil Service, UP is therefore governed by PD 807 and administrative cases involving the discipline of its employees [39] come under the appellate jurisdiction of the Civil Service Commission . (Emphasis supplied) In the more recent case of Camacho v. Gloria, this Court lent credence to the concurrent jurisdiction of the CSC when it affirmed that a case against a university official may be filed either with the universitys BOR or directly with the CSC. We quote: Further, petitioner contends that the creation of the committee by the respondent Secretary, as Chairman of the USP Board of Regents, was contrary to the Civil Service Rules. However, he cites no specific provision of the Civil Service Law which was violated by the respondents in forming the investigating committee. The Civil Service Rules embodied in Executive
[40] [38]

Order 292 recognize the power of the Secretary and the university, through its governing board, to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. Of course under EO 292, a complaint against a state university official may be filed either with the universitys Board of Regents or directly with the Civil Service Commission, although the CSC may delegate the investigation of a complaint and for that purpose, may deputize any department, agency, official or group of officials to conduct [41] such investigation. (Emphasis supplied) Thus, CSC validly took cognizance of the administrative complaints directly filed before the regional office, concerning violations of civil service rules against respondent. III. Academic freedom may not be invoked when there are alleged violations of civil service laws and rules. Certainly, academic institutions and personnel are granted wide latitude of action under the principle of academic freedom. Academic freedom encompasses the freedom to determine who may teach, who may be taught, [42] how it shall be taught, and who may be admitted to study. Following that doctrine, this Court has recognized that institutions of higher learning has the freedom to decide for itself the best methods to achieve their aims and [43] objectives, free from outside coercion, except when the welfare of the general public so requires. They have the independence to determine who to accept to study in their school and they cannot be compelled by mandamus to [44] enroll a student. That principle, however, finds no application to the facts of the present case. Contrary to the matters traditionally held to be justified to be within the bounds of academic freedom, the administrative complaints filed against Sojor involve violations of civil service rules. He is facing charges of nepotism, dishonesty, falsification of official documents, grave misconduct, and conduct prejudicial to the best interest of the service. These are classified [45] as grave offenses under civil service rules, punishable with suspension or even dismissal. This Court has held that the guaranteed academic freedom does not give an institution the unbridled [46] authority to perform acts without any statutory basis. For that reason, a school official, who is a member of the civil service, may not be permitted to commit violations of civil service rules under the justification that he was free to do so under the principle of academic freedom. Lastly, We do not agree with respondents contention that his appointment to the position of president o f NORSU, despite the pending administrative cases against him, served as a condonation by the BOR of the alleged [47] [48] acts imputed to him. The doctrine this Court laid down in Salalima v. Guingona, Jr. andAguinaldo v. Santos are inapplicable to the present circumstances. Respondents in the mentioned cases are elective officials, unlike [49] respondent here who is an appointed official. Indeed, election expresses the sovereign will of the people. Under the principle of vox populi est suprema lex, the re-election of a public official may, indeed, supersede a pending administrative case. The same cannot be said of a re-appointment to a non-career position. There is no sovereign will of the people to speak of when the BOR re-appointed respondent Sojor to the post of university president. WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals is REVERSED and SET ASIDE. The assailed Resolutions of the Civil Service Commission are REINSTATED. SO ORDERED.

BAI SANDRA S. A. SEMA, Petitioner,

G.R. No. 177597

- versus -

COMMISSION ON ELECTIONS and DIDAGEN P. DILANGALEN, Respondents. x------------------------x

PERFECTO F. MARQUEZ, Petitioner,

G.R. No. 178628 Present: PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO, VELASCO, JR., NACHURA, REYES, LEONARDO-DE CASTRO, and BRION, JJ.

- versus -

COMMISSION ON ELECTIONS, Respondent.

Promulgated: July 16, 2008

x--------------------------------------------------x

DECISION

CARPIO, J.:

The Case
[1]

These consolidated petitions seek to annul Resolution No. 7902, dated 10 May 2007, of the Commission on [2] Elections (COMELEC) treating Cotabato City as part of the legislative district of the Province of Shariff Kabunsuan. The Facts

The Ordinance appended to the 1987 Constitution apportioned two legislative districts for the Province of Maguindanao. The first legislative district consists ofCotabato City and eight [3] municipalities. Maguindanao forms part of the Autonomous Region in Muslim Mindanao (ARMM), created under its [4] Organic Act, Republic Act No. 6734 (RA 6734), as amended by Republic Act No. 9054 (RA 9054). Although under the Ordinance, Cotabato City forms part of Maguindanaos first legislative district, it is not part of the ARMM but of Region XII, having voted against its inclusion in the ARMM in the plebiscite held in November 1989. On 28 August 2006, the ARMMs legislature, the ARMM Regional Assembly, exercising its power to create [5] provinces under Section 19, Article VI of RA 9054, enacted Muslim Mindanao Autonomy Act No. 201 (MMA Act 201) creating the Province of Shariff Kabunsuan composed of the eight municipalities in the first district of Maguindanao. MMA Act 201 provides: Section 1. The Municipalities of Barira, Buldon, Datu Odin Sinsuat, Kabuntalan, Matanog, Parang, Sultan Kudarat, Sultan Mastura, and Upi are hereby separated from the Province ofMaguindanao and constituted into a distinct and independent province, which is hereby created, to be known as the Province of Shariff Kabunsuan.

xxxx

Sec. 5. The corporate existence of this province shall commence upon the appointment by the Regional Governor or election of the governor and majority of the regular members of the Sangguniang Panlalawigan. The incumbent elective provincial officials of the Province of Maguindanao shall continue to serve their unexpired terms in the province that they will choose or where they are residents: Provided, that where an elective position in both provinces becomes vacant as a consequence of the creation of the Province of Shariff Kabunsuan, all incumbent elective provincial officials shall have preference for appointment to a higher elective vacant position and for the time being be appointed by the Regional Governor, and shall hold office until their successors shall have been elected and qualified in the next local elections; Provided, further, that they shall continue to receive the salaries they are receiving at the time of the approval of this Act until the new readjustment of salaries in accordance with law. Provided, furthermore, that there shall be no diminution in the number of the members of the Sangguniang Panlalawigan of the mother province. Except as may be provided by national law, the existing legislative district, which includes Cotabato as a part thereof, shall remain.
[6]

Later, three new municipalities were carved out of the original nine municipalities constituting Shariff Kabunsuan, bringing its total number of municipalities to 11. Thus, what was left of Maguindanao were the municipalities constituting its second legislative district. Cotabato City, although part of Maguindanaos first legislative district, is not part of the Province of Maguindanao. The voters of Maguindanao ratified Shariff Kabunsuans creation in a plebiscite held on 29 October 2006. On 6 February 2007, the Sangguniang Panlungsod of Cotabato City passed Resolution No. 3999 requesting the COMELEC to clarify the status of Cotabato City in view of the conversion of the First District of Maguindanao into a regular province under MMA Act 201. In answer to Cotabato Citys query, the COMELEC issued Resolution No. 07 -0407 on 6 March 2007 "maintaining the status quo with Cotabato City as part of Shariff Kabunsuan in the First Legislative District of Maguindanao. Resolution No. 07-0407, which adopted the recommendation of the COMELECs Law Department [7] under a Memorandum dated 27 February 2007, provides in pertinent parts: Considering the foregoing, the Commission RESOLVED, as it hereby resolves, to adopt the recommendation of the Law Department that pending the enactment of the appropriate law by Congress, to maintain the status quo with Cotabato City as part of Shariff Kabunsuan in the First Legislative District of Maguindanao. (Emphasis supplied)

However, in preparation for the 14 May 2007 elections, the COMELEC promulgated on 29 March 2007 Resolution No. 7845 stating that Maguindanaos first legislative district is composed only [8] of Cotabato City because of the enactment of MMA Act 201. On 10 May 2007, the COMELEC issued Resolution No. 7902, subject of these petitions, amending Resolution No. 07-0407 by renaming the legislative district in question as [9] Shariff Kabunsuan Province with Cotabato City (formerly First District of Maguindanao with Cotabato City). In G.R. No. 177597, Sema, who was a candidate in the 14 May 2007 elections for Representative of Shariff Kabunsuan with Cotabato City, prayed for the nullification of COMELEC Resolution No. 7902 and the exclusion from canvassing of the votes cast in Cotabato City for that office. Sema contended that Shariff Kabunsuan is entitled to [10] one representative in Congress under Section 5 (3), Article VI of the Constitution and Section 3 of the Ordinance [11] appended to the Constitution. Thus, Sema asserted that the COMELEC acted without or in excess of its jurisdiction in issuing Resolution No. 7902 which maintained the status quo in Maguindanaos first legislative district despite the COMELECs earlier directive in Resolution No. 7845 designating Cotabato City as the lone component of [12] Maguindanaos reapportioned first legislative district. Sema further claimed that in issuing Resolution No. 7902, the COMELEC usurped Congress power to create or reapportion legislative districts. In its Comment, the COMELEC, through the Office of the Solicitor General (OSG), chose not to reach the merits of the case and merely contended that (1) Sema wrongly availed of the writ of certiorari to nullify COMELEC Resolution No. 7902 because the COMELEC issued the same in the exercise of its administrative, not quasi-judicial,

power and (2) Semas prayer for the writ of prohibition in G.R. No. 177597 became moot with the proclamation of respondent Didagen P. Dilangalen (respondent Dilangalen) on 1 June 2007 as representative of the legislative district of Shariff Kabunsuan Province with Cotabato City. In his Comment, respondent Dilangalen countered that Sema is estopped from questioning COMELEC Resolution No. 7902 because in her certificate of candidacy filed on 29 March 2007, Sema indicated that she was seeking election as representative of Shariff Kabunsuan including Cotabato City. Respondent Dilangalen added that COMELEC Resolution No. 7902 is constitutional because it did not apportion a legislative district for Shariff Kabunsuan or reapportion the legislative districts in Maguindanao but merely renamed Maguindanaos first legislative district. Respondent Dilangalen further claimed that the COMELEC could not reapportion Maguindanaos first legislative district to make Cotabato City its sole component unit as the power to reapportion legislative districts lies exclusively with Congress, not to mention that Cotabato City does not meet the minimum population requirement [13] under Section 5 (3), Article VI of the Constitution for the creation of a legislative district within a city. Sema filed a Consolidated Reply controverting the matters raised in respondents Comments a nd reiterating her claim that the COMELEC acted ultra vires in issuing Resolution No. 7902. In the Resolution of 4 September 2007, the Court required the parties in G.R. No. 177597 to comment on the issue of whether a province created by the ARMM Regional Assembly under Section 19, Article VI of RA 9054 is entitled to one representative in the House of Representatives without need of a national law creating a legislative district for such new province. The parties submitted their compliance as follows: (1) Sema answered the issue in the affirmative on the following grounds: (a) the Court in Felwa v. [14] Salas stated that when a province is created by statute, t he corresponding representative district comes into existence neither by authority of that statute which cannot provide otherwise nor by apportionment, but by operation of the Constitution, without a reapportionment; (b) Section 462 of Republic Act No . 7160 (RA 7160) affirms the apportionment of a legislative district incident to the creation of a province; and (c) Section 5 (3), Article VI of the Constitution and Section 3 of the Ordinance appended to the Constitution mandate the apportionment of a legislative district in newly created provinces. (2) The COMELEC, again represented by the OSG, apparently abandoned its earlier stance on the propriety of issuing Resolution Nos. 07-0407 and 7902 and joined causes with Sema, contending that Section 5 (3), Article VI of the Constitution is self-executing. Thus, every new province created by the ARMM Regional Assembly is ipso facto entitled to one representative in the House of Representatives even in the absence of a national law; and (3) Respondent Dilangalen answered the issue in the negative on the following grounds: (a) the province contemplated in Section 5 (3), Article VI of the Constitution is one that is created by an act of Congress taking into account the provisions in RA 7160 on the creation of provinces; (b) Section 3, Article IV of RA 9054 withheld from the ARMM Regional Assembly the power to enact measures relating to national elections, which encompasses the apportionment of legislative districts for members of the House of Representatives; (c) recognizing a legislative district in every province the ARMM Regional Assembly creates will lead to the disproportionate representation of the ARMM in the House of Representatives as the Regional Assembly can create provinces without regard to the requirements in Section 461 of RA 7160; and (d) Cotabato City, which has a population of less than 250,000, is not entitled to a representative in the House of Representatives. On 27 November 2007, the Court heard the parties in G.R. No. 177597 in oral arguments on the following issues: (1) whether Section 19, Article VI of RA 9054, delegating to the ARMM Regional Assembly the power to create provinces, is constitutional; and (2) if in the affirmative, whether a province created under Section 19, Article VI of RA 9054 is entitled to one representative in the House of Representatives without need of a national law [15] creating a legislative district for such new province. In compliance with the Resolution dated 27 November 2007, the parties in G.R. No. 177597 filed their [16] respective Memoranda on the issues raised in the oral arguments. On the question of the constitutionality of Section 19, Article VI of RA 9054, the parties in G.R. No. 177597 adopted the following positions: (1) Sema contended that Section 19, Article VI of RA 9054 is constitutional (a) as a valid delegation by Congress to the ARMM of the power to create provinces under Section 20 (9), Article X of the Constitution granting to the autonomous regions, through their organic acts, legislative powers over other matters as may be authorized by law for the promotion of the general welfare of the people of the region and (b) as an amendment to Section 6 of RA [17] 7160. However, Sema concedes that, if taken literally, the grant in Section 19, Article VI of RA 9054 to the ARMM Regional Assembly of the power to prescribe standards lower than those mandated in RA 7160 in the creation of [18] provinces contravenes Section 10, Article X of the Constitution. Thus, Sema proposed that Section 19 should be

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

The petitions raise the following issues: I. In G.R. No. 177597: (A) Preliminarily (1) whether the writs of Certiorari, Prohibition, and Mandamus are proper to test the constitutionality of COMELEC Resolution No. 7902; and (2) whether the proclamation of respondent Dilangalen as representative of Shariff Kabunsuan Province with Cotabato City mooted the petition in G.R. No. 177597.

(B) On the merits (1) whether Section 19, Article VI of RA 9054, delegating to the ARMM Regional Assembly the power to create provinces, cities, municipalities and barangays, is constitutional; and (2) if in the affirmative, whether a province created by the ARMM Regional Assembly under MMA Act 201 pursuant to Section 19, Article VI of RA 9054 is entitled to one representative in the House of Representatives without need of a national law creating a legislative district for such province. II. In G.R No. 177597 and G.R No. 178628, whether COMELEC Resolution No. 7902 is valid for maintaining the status quo in the first legislative district of Maguindanao (as Shariff Kabunsuan Province with Cotabato City [formerly First District of Maguindanao with Cotabato City]), despite the creation of the Province of Shariff Kabunsuan out of such district (excluding Cotabato City). The Ruling of the Court

The petitions have no merit. We rule that (1) Section 19, Article VI of RA 9054 is unconstitutional insofar as it grants to the ARMM Regional Assembly the power to create provinces and cities; (2) MMA Act 201 creating the Province of Shariff Kabunsuan is void; and (3) COMELEC Resolution No. 7902 is valid.

On the Preliminary Matters

The Writ of Prohibition is Appropriate to Test the Constitutionality of Election Laws, Rules and Regulations The purpose of the writ of Certiorari is to correct grave abuse of discretion by any tribunal, board, or officer [21] exercising judicial or quasi-judicial functions. On the other hand, the writ of Mandamus will issue to compel a [22] tribunal, corporation, board, officer, or person to perform an act which the law specifically enjoins as a duty. True, [23] the COMELEC did not issue Resolution No. 7902 in the exercise of its judicial or quasi-judicial functions. Nor is there a law which specifically enjoins the COMELEC to exclude from canvassing the votes cast in Cotabato City for representative of Shariff Kabunsuan Province with Cotabato City. These, however, do not justify the outright dismissal of the petition in G.R. No. 177597 because Sema also prayed for the issuance of the writ of Prohibition and [24] we have long recognized this writ as proper for testing the constitutionality of election laws, rules, and regulations. Respondent Dilangalens Proclamation Does Not Moot the Petition There is also no merit in the claim that respondent Dilangalens proclamation as winner in the 14 May 2007 elections for representative of Shariff KabunsuanProvince with Cotabato City mooted this petition. This case does not concern respondent Dilangalens election. Rather, it involves an inquiry into the validity of COMELEC Resolution No. 7902, as well as the constitutionality of MMA Act 201 and Section 19, Article VI of RA 9054. Admittedly, the outcome of this petition, one way or another, determines whether the votes cast in Cotabato City for representative of the district of Shariff Kabunsuan Province with Cotabato City will be included in the canvassing of ballots. However, this incidental consequence is no reason for us not to proceed with the resolution of the novel issues raised here. The Courts ruling in these petitions affects not only the recently concluded elections but also all the other succeeding elections for the office in question, as well as the power of the ARMM Regional Assembly to create in the future additional provinces.

On the Main Issues

Whether the ARMM Regional Assembly Can Create the Province of Shariff Kabunsuan

The creation of local government units is governed by Section 10, Article X of the Constitution, which provides: Sec. 10. No province, city, municipality, or barangay may be created, divided, merged, abolished or its boundary substantially altered except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. Thus, the creation of any of the four local government units province, city, municipality or barangay must comply with three conditions. First, the creation of a local government unit must follow the criteria fixed in the Local

Government Code. Second, such creation must not conflict with any provision of the Constitution. Third, there must be a plebiscite in the political units affected. There is neither an express prohibition nor an express grant of authority in the Constitution for Congress to delegate to regional or local legislative bodies the power to create local government units. However, under its plenary legislative powers, Congress can delegate to local legislative bodies the power to create local government units, subject to reasonable standards and provided no conflict arises with any provision of the Constitution. In fact, Congress has delegated to provincial boards, and city and municipal councils, the power to create barangays within [25] their jurisdiction, subject to compliance with the criteria established in the Local Government Code, and the plebiscite requirement in Section 10, Article X of the Constitution. However, under the Local Government Code, [26] only x x x an Act of Congress can create provinces, cities or municipalities. Under Section 19, Article VI of RA 9054, Congress delegated to the ARMM Regional Assembly the power to create provinces, cities, municipalities and barangays within the ARMM. Congress made the delegation under its plenary legislative powers because the power to create local government units is not one of the express legislative [27] powers granted by the Constitution to regional legislative bodies. In the present case, the question arises whether the delegation to the ARMM Regional Assembly of the power to create provinces, cities, municipalities and barangays conflicts with any provision of the Constitution. There is no provision in the Constitution that conflicts with the delegation to regional legislative bodies of the power to create municipalities and barangays, provided Section 10, Article X of the Constitution is followed. However, the creation of provinces and cities is another matter. Section 5 (3), Article VI of the Constitution provides, Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative in the House of Representatives. Similarly, Section 3 of the Ordinance appended to the Constitution provides, Any province that may hereafter be created, or any city whose population may hereafter increase to more than two hundred fifty thousand shall be entitled in the immediately following election to at least one Member x x x. Clearly, a province cannot be created without a legislative district because it will violate Section 5 (3), Article VI of the Constitution as well as Section 3 of the Ordinance appended to the Constitution. For the same reason, a city with a population of 250,000 or more cannot also be created without a legislative district. Thus, the power to create a province, or a city with a population of 250,000 or more, requires also the power to create a legislative district. Even the creation of a city with a population of less than 250,000 involves the power to create a legislative district because once the citys population reaches 250,000, the city automatically becomes entitled to one representative under Section 5 (3), Article VI of the Constitution and Section 3 of the Ordinance appended to the Constitution. Thus, the power to create a province or city inherently involves the power to create a legislative district. For Congress to delegate validly the power to create a province or city, it must also validly delegate at the same time the power to create a legislative district. The threshold issue then is, can Congress validly delegate to the ARMM Regional Assembly the power to create legislative districts for the House of Representatives? The answer is in the negative. Legislative Districts are Created or Reapportioned Only by an Act of Congress Under the present Constitution, as well as in past Constitutions, the power to increase the allowable membership in the House of Representatives, and to reapportion legislative districts, is vested exclusively in Congress. Section 5, Article VI of the Constitution provides: SECTION 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law , who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations. xxxx (3) Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative.
[28]

(4) Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section. (Emphasis supplied)

Section 5 (1), Article VI of the Constitution vests in Congress the power to increase, through a law, the allowable membership in the House of Representatives. Section 5 (4) empowers Congress to reapportion legislative districts. The power to reapportion legislative districts necessarily includes the power to create legislative districts out of existing ones. Congress exercises these powers through a law that Congress itself enacts, and not through a law that regional or local legislative bodies enact. The allowable membership of the House of Representatives can be increased, and new legislative districts of Congress can be created, only through a national law passed by [29] Congress. In Montejo v. COMELEC, we held that the power of redistricting x x x is traditionally regarded as part of the power (of Congress) to make laws, and thus is vested exclusively in Congress . This textual commitment to Congress of the exclusive power to create or reapportion legislative districts is logical. Congress is a national legislature and any increase in its allowable membership or in its incumbent membership through the creation of legislative districts must be embodied in a national law. Only Congress can enact such a law. It would be anomalous for regional or local legislative bodies to create or reapportion legislative districts for a national legislature like Congress. An inferior legislative body, created by a superior legislative body, cannot change the membership of the superior legislative body. The creation of the ARMM, and the grant of legislative powers to its Regional Assembly under its organic act, did not divest Congress of its exclusive authority to create legislative districts. This is clear from the Constitution and the ARMM Organic Act, as amended. Thus, Section 20, Article X of the Constitution provides: SECTION 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over: (1) Administrative organization; (2) Creation of sources of revenues; (3) Ancestral domain and natural resources; (4) Personal, family, and property relations; (5) Regional urban and rural planning development; (6) Economic, social, and tourism development; (7) Educational policies; (8) Preservation and development of the cultural heritage; and (9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region. Nothing in Section 20, Article X of the Constitution authorizes autonomous regions, expressly or impliedly, to create or reapportion legislative districts for Congress. On the other hand, Section 3, Article IV of RA 9054 amending the ARMM Organic Act, provides, The Regional Assembly may exercise legislative powerx x x except on the following matters: x x x (k) National elections. x x x. Since the ARMM Regional Assembly has no legislative power to enact laws relating to national elections, it cannot create a legislative district whose representative is elected in national elections. Whenever Congress enacts a law creating a legislative district, the first representative is always elected in the next national [30] elections from the effectivity of the law. Indeed, the office of a legislative district representative to Congress is a national office, and its occupant, a [31] Member of the House of Representatives, is anational official. It would be incongruous for a regional legislative body like the ARMM Regional Assembly to create a national office when its legislative powers extend only to its regional territory. The office of a district representative is maintained by national funds and the salary of its occupant is paid out of national funds. It is a self-evident inherent limitation on the legislative powers of every local or regional legislative body that it can only create local or regional offices, respectively, and it can never create a national office. To allow the ARMM Regional Assembly to create a national office is to allow its legislative powers to operate outside the ARMMs territorial jurisdiction. This violates Section 20, Article X of the Constitution which expressly limits the coverage of the Regional Assemblys legislative powers [w]ithin its territorial jurisdiction x x x.

The ARMM Regional Assembly itself, in creating Shariff Kabunsuan, recognized the exclusive nature of Congress power to create or reapportion legislative districts by abstaining from creating a legislative district for Shariff Kabunsuan. Section 5 of MMA Act 201 provides that: Except as may be provided by national law , the existing legislative district, which includes Cotabato City as a part thereof, shall remain. (Emphasis supplied) However, a province cannot legally be created without a legislative district because the Constitution mandates that each province shall have at least one representative. Thus, the creation of the Province of Shariff Kabunsuan without a legislative district is unconstitutional. Sema, petitioner in G.R. No. 177597, contends that Section 5 (3), Article VI of the Constitution, which provides: Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. Each city with a population of at least two hundred fifty thousand, oreach province, shall have at least one representative. (Emphasis supplied) and Section 3 of the Ordinance appended to the Constitution, which states: Any province that may hereafter be created , or any city whose population may hereafter increase to more than two hundred fifty thousand shall be entitled in the immediately following election to at least one Member or such number of Members as it may be entitled to on the basis of the number of its inhabitants and according to the standards set forth in paragraph (3), Section 5 of Article VI of the Constitution. The number of Members apportioned to the province out of which such new province was created or where the city, whose population has so increased, is geographically located shall be correspondingly adjusted by the Commission on Elections but such adjustment shall not be made within one hundred and twenty days before the election. (Emphasis supplied) serve as bases for the conclusion that the Province of Shariff Kabunsuan, created on 29 October 2006, is automatically entitled to one member in the House of Representatives in the 14 May 2007 elections. As further support for her stance, petitioner invokes the statement in Felwa that when a province is created by statute, the corresponding representative district comes into existence neither by authority of that statute which cannot provide otherwise nor by apportionment, but by operation of the Constitution, without a reapportionment. The contention has no merit. First. The issue in Felwa, among others, was whether Republic Act No. 4695 (RA 4695), creating the provinces of Benguet, Mountain Province, Ifugao, and Kalinga-Apayao and providing for congressional representation in the old and new provinces, was unconstitutional for creati[ng] congressional districts without the apportionment provided in the Constitution. The Court answered in the negative, thus: The Constitution ordains: The House of Representatives shall be composed of not more than one hundred and twenty Members who shall be apportioned among the several provinces as nearly as may be according to the number of their respective inhabitants, but each province shall have at least one Member. The Congress shall by law make an apportionment within three years after the return of every enumeration, and not otherwise. Until such apportionment shall have been made, the House of Representatives shall have the same number of Members as that fixed by law for the National Assembly, who shall be elected by the qualified electors from the present Assembly districts. Each representative district shall comprise as far as practicable, contiguous and compact territory. Pursuant to this Section, a representative district may come into existence: (a) indirectly, through the creation of a province for each province shall have at least one member in the House of Representatives; or (b) by direct creation of several representative districts within a province. The requirements concerning the apportionment of representative districts and the territory thereof refer only to the second method of creation of representative districts, and do not apply to those incidental to the creation of provinces, under the first method. This is deducible, not only from the general tenor of the provision above quoted, but, also, from the fact that the apportionment therein alluded to refers to that which is made by an Act of

Congress. Indeed, when a province is created by statute, the corresponding representative district, comes into existence neither by authority of that statute which cannot provide otherwise nor by apportionment, but by operation of the Constitution, without a reapportionment. There is no constitutional limitation as to the time when, territory of, or other conditions under which a province may be created, except, perhaps, if the consequence thereof were to exceed the maximum of 120 representative districts prescribed in the Constitution, which is not the effect of the legislation under consideration. As a matter of fact, provinces have been created or subdivided into other provinces, with the consequent creation of additional representative districts, [32] without complying with the aforementioned requirements. (Emphasis supplied)

Thus, the Court sustained the constitutionality of RA 4695 because (1) it validly created legislative districts indirectly through a special law enacted by Congress creating a province and (2) the creation of the legislative districts will not result in breaching the maximum number of legislative districts provided under the 1935 Constitution. Felwa does not apply to the present case because in Felwa the new provinces were created by a national law enacted by Congress itself. Here, the new province was created merely by a regional law enacted by the ARMM Regional Assembly. What Felwa teaches is that the creation of a legislative district by Congress does not emanate alone from Congress power to reapportion legislative districts, but also from Congress power to create provinces which cannot be created without a legislative district. Thus, when a province is created, a legislative district is created by operation of the Constitution because the Constitution provides that each province shall have at least one representative in the House of Representatives. This does not detract from the constitutional principle that the power to create legislative districts belongs exclusively to Congress. It merely prevents any other legislative body, except Congress, from creating provinces because for a legislative body to create a province such legislative body must have the power to create legislative districts. In short, only an act of Congress can trigger the creation of a legislative district by operation of the Constitution. Thus, only Congress has the power to create, or trigger the creation of, a legislative district. Moreover, if as Sema claims MMA Act 201 apportioned a legislative district to Shariff Kabunsuan upon its creation, this will leave Cotabato City as the lone component of the first legislative district of Maguindanao. However, Cotabato City cannot constitute a legislative district by itself because as of the census taken in 2000, it had a population of only 163,849. To constitute Cotabato City alone as the surviving first legislative district of Maguindanao will violate Section 5 (3), Article VI of the Constitution which requires that [E]ach city with a population of at least two hundred fifty thousand x x x, shall have at least one representative. Second. Semas theory also undermines the composition and independence of the House of [33] Representatives. Under Section 19, Article VI of RA 9054, the ARMM Regional Assembly can create provinces and cities within the ARMM with or without regard to the criteria fixed in Section 461 of RA 7160, namely: minimum annual income of P20,000,000, and minimum contiguous territory of 2,000 square kilometers or minimum population [34] of 250,000. The following scenarios thus become distinct possibilities: (1) An inferior legislative body like the ARMM Regional Assembly can create 100 or more provinces and thus increase the membership of a superior legislative body, the House of Representatives, beyond the maximum limit of 250 fixed in the Constitution (unless a national law provides otherwise); (2) The proportional representation in the House of Representatives based on one representative for at least every 250,000 residents will be negated because the ARMM Regional Assembly need not comply with the requirement in Section 461(a)(ii) of RA 7160 that every province created must have a population of at least 250,000; and (3) Representatives from the ARMM provinces can become the majority in the House of Representatives through the ARMM Regional Assemblys continuous creation of provinces or cities within the ARMM.

The following exchange during the oral arguments of the petition in G.R. No. 177597 highlights the absurdity of Semas position that the ARMM Regional Assembly can create provinces:

Justice Carpio: So, you mean to say [a] Local Government can create legislative district[s] and pack Congress with their own representatives [?] Atty. Vistan II: Yes, Your Honor, because the Constitution allows that. Justice Carpio: So, [the] Regional Assembly of [the] ARMM can create and create x x x provinces x x x and, therefore, they can have thirty-five (35) new representatives in the House of Representatives without Congress agreeing to it, is that what you are saying? That can be done, under your theory[?] Atty. Vistan II: Yes, Your Honor, under the correct factual circumstances. Justice Carpio: Under your theory, the ARMM legislature can create thirty-five (35) new provinces, there may be x x x [only] one hundred thousand (100,000) [population], x x x, and they will each have one representative x x x to Congress without any national law, is that what you are saying? Atty. Vistan II: Without law passed by Congress, yes, Your Honor, that is what we are saying. xxxx Justice Carpio: So, they can also create one thousand (1000) new provinces, sen[d] one thousand (1000) representatives to the House of Representatives without a national law[,] that is legally possible, correct? Atty. Vistan II: Yes, Your Honor.
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(Emphasis supplied)

Neither the framers of the 1987 Constitution in adopting the provisions in Article X on regional [37] autonomy, nor Congress in enacting RA 9054, envisioned or intended these disastrous consequences that certainly would wreck the tri-branch system of government under our Constitution. Clearly, the power to create or reapportion legislative districts cannot be delegated by Congress but must be exercised by Congress itself. Even the ARMM Regional Assembly recognizes this. The Constitution empowered Congress to create or reapportion legislative districts, not the regional assemblies. Section 3 of the Ordinance to the Constitution which states, [A]ny province that may hereafter be created x x x shall be entitled in the immediately following election to at least one Member, refers to a province created by Congress itself through a national law. The reason is that the creation of a province increases the actual membership of the House of Representatives, an increase that only Congress can decide. Incidentally, in the present th [38] 14 Congress, there are 219 district representatives out of the maximum 250 seats in the House of Representatives. Since party-list members shall constitute 20 percent of total membership of the House, there should at least be 50 party-list seats available in every election in case 50 party-list candidates are proclaimed winners. This leaves only 200 seats for district representatives, much less than the 219 incumbent district representatives. Thus, there is a need now for Congress to increase by law the allowable membership of the House, even before Congress can create new provinces.

It is axiomatic that organic acts of autonomous regions cannot prevail over the Constitution. Section 20, Article X of the Constitution expressly provides that the legislative powers of regional assemblies are limited [w]ithin its territorial jurisdiction and subject to the provisions of the Constitution and national laws, x x x. The Preamble of the ARMM Organic Act (RA 9054) itself states that the ARMM Government is established within the

framework of the Constitution. This follows Section 15, Article X of the Constitution which mandates that the ARMM shall be created x x x within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines. The present case involves the creation of a local government unit that necessarily involves also the creation of a legislative district. The Court will not pass upon the constitutionality of the creation of municipalities and barangays that does not comply with the criteria established in Section 461 of RA 7160, as mandated in Section 10, Article X of the Constitution, because the creation of such municipalities and barangays does not involve the creation of legislative districts. We leave the resolution of this issue to an appropriate case. In summary, we rule that Section 19, Article VI of RA 9054, insofar as it grants to the ARMM Regional Assembly the power to create provinces and cities, is void for being contrary to Section 5 of Article VI and Section 20 of Article X of the Constitution, as well as Section 3 of the Ordinance appended to the Constitution. Only Congress can create provinces and cities because the creation of provinces and cities necessarily includes the creation of legislative districts, a power only Congress can exercise under Section 5, Article VI of the Constitution and Section 3 of the Ordinance appended to the Constitution. The ARMM Regional Assembly cannot create a province without a legislative district because the Constitution mandates that every province shall have a legislative district. Moreover, the ARMM Regional Assembly cannot enact a law creating a national office like the office of a district representative of Congress because the legislative powers of the ARMM Regional Assembly operate only within its territorial jurisdiction as provided in Section 20, Article X of the Constitution. Thus, we rule that MMA Act 201, enacted by the ARMM Regional Assembly and creating the Province of Shariff Kabunsuan, is void. Resolution No. 7902 Complies with the Constitution Consequently, we hold that COMELEC Resolution No. 7902, preserving the geographic and legislative district of the First District of Maguindanao with Cotabato City, is valid as it merely complies with Section 5 of Article VI and Section 20 of Article X of the Constitution, as well as Section 1 of the Ordinance appended to the Constitution. WHEREFORE, we declare Section 19, Article VI of Republic Act No. 9054 UNCONSTITUTIONAL insofar as it grants to the Regional Assembly of the Autonomous Region in Muslim Mindanao the power to create provinces and cities. Thus, we declare VOID Muslim Mindanao Autonomy Act No. 201 creating the Province of Shariff Kabunsuan. Consequently, we rule that COMELEC Resolution No. 7902 is VALID.

Let a copy of this ruling be served on the President of the Senate and the Speaker of the House of Representatives. SO ORDERED. Bai Sandra Sema vs. COMELEC Posted on September 10, 2012 G.R. No. 177597 July 16, 2008 Facts: On August 28, 2006, the ARMM Regional Assembly, exercising its power to create provinces under Sec.19, Art.VI of RA 9054, enacted Muslim Mindanao Autonomy Act No. 201 (MMA Act 201) creating the province of Shariff Kabunsuan in the first district ofMaguindanao. The voters of Maguindanao ratified Shariff Kabunsuans creation in a plebiscite held on October 29, 2006. On February 6, 2007, the Sangguniang Panlungsod of Cotabato City passed Resolution No. 3999 requesting the COMELEC to clarify the status of Cotabato City in view of the conversion of the First Distric t of Maguindanao into a regular province under MMA Act 201. In an answer to Cotabato Citys query, the COMELEC issued Resolution No. 07 -0407 maintaining the status quo with Cotabato City as part of Shariff Kabunsuan in the FirstLegislative District of Maguindanao. However, in preparation for the May 14, 2007 elections, the COMELEC promulgated Resolution No. 7845 stating that Maguindanaos first legislative district is composed only of Cotabato City because of the enactment of MMA Act No. 201. On May 10, 2007, the COMELEC issued Resolution No. 7902 amending Resolution No. 07-0407 by renaming the legislative district in question as Shariff Kabunsan Province with Cotabato City. Sema, who was a candidate for Representative of Shariff Kabunsuan with Cotabato City prayed for the nullification of Resolution No. 7902 and the exclusion from the canvassing of votes cast in Cotabato for that office. Sema contended that Shariff Kabunsuan is entitled to one representative in Congress under Sec. 5(3), Art. VI of the Constitution and Sec.3 of the Ordinance appended to the Constitution.

Issues: 1. Whether Sec. 19, Art. VI of RA 9054 delegating to the ARMM Regional Assembly the power to create provinces, cities, municipalities and barangays is constitutional. 2. Whether a province created under Sec. 19, Art.VI of RA 9054 is entitled to one representative in the House of Representatives without need of a national law creating a legislative district for such province. Held: 1.Sec.19, Art.VI of RA 9054 is UNCONSTITUTIONAL, insofar as it grants to the ARMM Regional Assembly the power to create provinces and cities,for being contrary to Sec. 5 of Art.VI and Sec.20 of Art. X of the Constitution, as well as Sec.3 of the Ordinance appended to the Constitution. The creation of LGUs is governed by Sec.10, Art.X of the Constitution: 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 (LGC) and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. Thus, the creation of any LGU must comply with 3 conditions: First, the creation of an LGU must follow the criteria fixed in the LGC. Second, such creation must not conflict with any provision of the Constitution. Third, there must be a plebiscite in the political units affected. There is neither an express prohibition nor an express grant of authority in the Constitution for Congress to delegate to regional/legislative bodies the power to create LGUs. However, under its plenary powers, Congress can delegate to local legislative bodies the power to create LGUs subject to reasonable standards and provided no conflict arises with any provisions of the Constitution. In fact, the delegation to regional legislative bodies of the power to create municipalities and barangays is constitutional, provided the criteria established in the LGC and the plebiscite requirement in Sec. 10, Art. X of the Constitution is complied. However, the creation of provinces is another matter. Under the LGC, only x x x an Act of Congress can create provinces, cities, or municipalities. According to, Sec. 5 (3), Art.VI of the Constitution: Each City with a population of at least 250,000, or each province, shall have at least 1 representative in the House of Representatives. Similarly, Sec. 3 of the Ordinance appended to the Constitution provides, Any province that may hereafter be created, or any city whose population may hereafter increase to more than 250,000 shall be entitled in the immediately following election to at least 1 Member . Thus, only Congress can create provinces and cities because the creation of provinces and cities necessarily includes the creation of legislative districts, a power only Congress can exercise under Sec. 5, Art.VI of the Constitution and Sec.3 of the Ordinance appended to the Constitution. 2.Legislative Districts are created or reapportioned only by an act of Congress. Under the Constitution, the power to increase the allowable membership in the House of Representatives, and to apportion legislative districts, is vested exclusively in Congress. Sec. 5 (1), Art.VI of the Constitution vests Congress the power to increase the allowable membership in the House of Representatives. Sec. 5 (4) empowers Congress to reapportion legislative districts. The power to reapportion legislative districts necessarily includes the power to create legislative districts out of existing ones.Congress exercises these powers through a law the Congress itself enacts, not through a law enacted by regional/local legislative bodies. The power of redistric ting xxx is traditionally regarded as part of the power (of Congress) to make laws, and is thus vested exclusively in (it) [ Montejo v. COMELEC, 242 SCRA 415 (1995)]. An inferior legislative body cannot change the membership of the superior legislative body which created it. Congress is a national legislature, and any changes in its membership through the creation of legislative districts must be embodied in national law. The power to create or reapportion legislative districts cannot be delegated by Congress but must be exercised by Congress itself. Even the ARMM Regional Assembly recognizes this. The ARMM cannot create a province without a legislative district because the Constitution mandates that every province shall have a legislative district. But this can never be legally possible because the creation of legislative districts is vested solely in Congress. Moreover, the ARMM Regional Assembly cannot enact a law creating a national office because Sec. 20, Art.X of the Constitution expressly provides that the legislative powers of regional assemblies are limited only within its territorial jurisdiction. (Nothing in Sec. 20, Art.X of the Constitution authorizes autonomous regions to create/apportion legislative districts for Congress.) It is axiomatic that organic acts of autonomous regions cannot prevail over the Constitution . Since the ARMM Regional Assembly has no legislative power to enact laws relating to national elections, it cannot create a legislative district whose representative is elected in national elections. At most, what ARMM can create are barangays not cities and provinces. Thus, MMA Act 201 enacted by the ARMM Regional Assembly, creating the Province of Shariff Kabunsuan, is void.

ELISEO F. SORIANO, Petitioner, - versus MA. CONSOLIZA P. LAGUARDIA, in her capacity as Chairperson of the Movie and Television Review and Classification Board, MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD, JESSIE L. GALAPON, ANABEL M. DELA CRUZ, MANUEL M. HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE S. YARIA, JR., MICHAEL M. SANDOVAL, and ROLDAN A. GAVINO, Respondents. x-------------------------------------------x ELISEO F. SORIANO, Petitioner, - versus -

G.R. No. 164785 Present: PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, TINGA, CHICO-NAZARIO, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, and BERSAMIN, JJ. G.R. No. 165636

MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD, ZOSIMO G. ALEGRE, JACKIE AQUINO-GAVINO, NOEL R. DEL PRADO, EMMANUELBORLAZA, JOSE E. ROMERO IV, and FLORIMONDO C. ROUS,in their capacity as members of the Hearing and Adjudication Committee of the MTRCB, JESSIE L. GALAPON, ANABEL M. DELA CRUZ, MANUEL M. HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE S. YARIA, JR., MICHAEL M. SANDOVAL, and ROLDAN A. GAVINO, in their capacity as complainants before the MTRCB, Respondents.

Promulgated: April 29, 2009 x-----------------------------------------------------------------------------------------x DECISION VELASCO, JR., J.: In these two petitions for certiorari and prohibition under Rule 65, petitioner Eliseo F. Soriano seeks to nullify and set aside an order and a decision of the Movie and Television Review and Classification Board (MTRCB) in connection with certain utterances he made in his television show, Ang Dating Daan. Facts of the Case On August 10, 2004, at around 10:00 p.m., petitioner, as host of the program Ang Dating Daan, aired on UNTV 37, made the following remarks: Lehitimong anak ng demonyo; sinungaling;

Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung putang babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba! O, masahol pa sa putang babae yan. Sabi ng lola ko masahol pa sa putang babae yan. Sobra ang [1] kasinungalingan ng mga demonyong ito. x x x Two days after, before the MTRCB, separate but almost identical affidavit-complaints were lodged by Jessie [2] L. Galapon and seven other private respondents, all members of the Iglesia ni Cristo (INC), against petitioner in connection with the above broadcast. Respondent Michael M. Sandoval, who felt directly alluded to in petitioners [3] remark, was then a minister of INC and a regular host of the TV program Ang Tamang Daan. Forthwith, the MTRCB sent petitioner a notice of the hearing on August 16, 2004 in relation to the alleged use of some cuss words [4] in the August 10, 2004 episode of Ang Dating Daan. After a preliminary conference in which petitioner appeared, the MTRCB, by Order of August 16, 2004, preventively suspended the showing of Ang Dating Daan program for 20 days, in accordance with Section 3(d) of Presidential Decree No. (PD) 1986, creating the MTRCB, in relation to Sec. 3, Chapter XIII of the 2004 Implementing [5] Rules and Regulations (IRR) of PD 1986 and Sec. 7, Rule VII of the MTRCB Rules of Procedure. The same order also set the case for preliminary investigation. The following day, petitioner sought reconsideration of the preventive suspension order, praying that Chairperson Consoliza P. Laguardia and two other members of the adjudication board recuse themselves from [6] [7] hearing the case. Two days after, however, petitioner sought to withdraw his motion for reconsideration, followed [8] by the filing with this Court of a petition for certiorari and prohibition, docketed as G.R. No. 164785, to nullify the preventive suspension order thus issued. On September 27, 2004, in Adm. Case No. 01-04, the MTRCB issued a decision, disposing as follows: WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, finding respondent Soriano liable for his utterances and thereby imposing on him a penalty of three (3) months suspension from his program, Ang Dating Daan. Co-respondents Joselito Mallari, Luzviminda Cruz and UNTV Channel 37 and its owner, PBC, are hereby exonerated for lack of evidence. SO ORDERED.
[9]

Petitioner then filed this petition for certiorari and prohibition with prayer for injunctive relief, docketed as G.R. No. 165636. In a Resolution dated April 4, 2005, the Court consolidated G.R. No. 164785 with G.R. No. 165636. In G.R. No. 164785, petitioner raises the following issues: THE ORDER OF PREVENTIVE SUSPENSION PROMULGATED BY RESPONDENT [MTRCB] DATED 16 AUGUST 2004 AGAINST THE TELEVISION PROGRAM ANG DATING DAAN x x x IS NULL AND VOID FOR BEING ISSUED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION (A) (B) (C) (D) (E) BY REASON THAT THE [IRR] IS INVALID INSOFAR AS IT PROVIDES FOR THE ISSUANCE OF PREVENTIVE SUSPENSION ORDERS; BY REASON OF LACK OF DUE HEARING IN THE CASE AT BENCH; FOR BEING VIOLATIVE OF EQUAL PROTECTION UNDER THE LAW; FOR BEING VIOLATIVE OF FREEDOM OF RELIGION; AND [10] FOR BEING VIOLATIVE OF FREEDOM OF SPEECH AND EXPRESSION.

In G.R. No. 165636, petitioner relies on the following grounds: SECTION 3(C) OF [PD] 1986, IS PATENTLY UNCONSTITUTIONAL AND ENACTED WITHOUT OR IN EXCESS OF JURISDICTION x x x CONSIDERING THAT: I

SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE CONSTITUTIONAL GUARANTEE OF FREEDOM OF RELIGION, SPEECH, AND EXPRESSION AS IT PARTAKES OF THE NATURE OF A SUBSEQUENT PUNISHMENT CURTAILING THE SAME; CONSEQUENTLY, THE IMPLEMENTING RULES AND REGULATIONS, RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH;

II SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE CONSTITUTIONAL GUARANTEE OF DUE PROCESS OF LAW AND EQUAL PROTECTION UNDER THE LAW; CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E., DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH; AND III [PD] 1986 IS NOT COMPLETE IN ITSELF AND DOES NOT PROVIDE FOR A SUFFICIENT STANDARD FOR ITS IMPLEMENTATION THEREBY RESULTING IN AN UNDUE DELEGATION OF LEGISLATIVE POWER BY REASON THAT IT DOES NOT PROVIDE FOR THE PENALTIES FOR VIOLATIONS OF ITS PROVISIONS. CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE [11] CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH G.R. No. 164785 We shall first dispose of the issues in G.R. No. 164785, regarding the assailed order of preventive suspension, although its implementability had already been overtaken and veritably been rendered moot by the equally assailed September 27, 2004 decision. It is petitioners threshold posture that the preventive suspension imposed against him and the relevant IRR provision authorizing it are invalid inasmuch as PD 1986 does not expressly authorize the MTRCB to issue preventive suspension. Petitioners contention is untenable. Administrative agencies have powers and functions which may be administrative, investigatory, regulatory, [12] quasi-legislative, or quasi-judicial, or a mix of the five, as may be conferred by the Constitution or by statute. They [13] have in fine only such powers or authority as are granted or delegated, expressly or impliedly, by law. And in determining whether an agency has certain powers, the inquiry should be from the law itself. But once ascertained as [14] existing, the authority given should be liberally construed. A perusal of the MTRCBs basic mandate under PD 1986 reveals the possession by the agency of the authority, albeit impliedly, to issue the challenged order of preventive suspension. And this authority stems naturally from, and is necessary for the exercise of, its power of regulation and supervision. Sec. 3 of PD 1986 pertinently provides the following: Section 3. Powers and Functions.The BOARD shall powers and duties: xxxx c) To approve or disapprove, delete objectionable portions from and/or prohibit the x x x production, x x x exhibition and/or television broadcast of the motion pictures, television programs and publicity materials subject of the preceding paragraph, which, in the judgment of the board applying contemporary Filipino cultural values as standard, are objectionable for being immoral, have the following functions,

indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines or its people, or with a dangerous tendency to encourage the commission of violence or of wrong or crime such as but not limited to: xxxx vi) Those which are libelous or defamatory to the good name and reputation of any person, whether living or dead; xxxx (d) To supervise, regulate, and grant, deny or cancel, permits for the x x x production, copying, distribution, sale, lease, exhibition, and/or television broadcast of all motion pictures, television programs and publicity materials, to the end that no such pictures, programs and materials as are determined by the BOARD to be objectionable in accordance with paragraph (c) hereof shall be x x x produced, copied, reproduced, distributed, sold, leased, exhibited and/or broadcast by television;

xxxx k) To exercise such powers and functions as may be necessary or incidental to the attainment of the purposes and objectives of this Act x x x. (Emphasis added.) The issuance of a preventive suspension comes well within the scope of the MTRCBs authority and functions expressly set forth in PD 1986, more particularly under its Sec. 3(d), as quoted above, which empowers the MTRCB to supervise, regulate, and grant, deny or cancel, permits for the x x x exhibition, and/or television broadcast of all motion pictures, television programs and publicity materials, to the end that no such pictures, programs and materials as are determined by the BOARD to be objectionable in accordance with paragraph (c) hereof shall be x x x exhibited and/or broadcast by television. Surely, the power to issue preventive suspension forms part of the MTRCBs express regulatory and supervisory statutory mandate and its investigatory and disciplinary authority subsumed in or implied from such mandate. Any other construal would render its power to regulate, supervise, or discipline illusory. Preventive suspension, it ought to be noted, is not a penalty by itself, being merely a preliminary step in an [15] administrative investigation. And the power to discipline and impose penalties, if granted, carries with it the power to investigate administrative complaints and, during such investigation, to preventively suspend the person subject of [16] the complaint. To reiterate, preventive suspension authority of the MTRCB springs from its powers conferred under PD 1986. The MTRCB did not, as petitioner insinuates, empower itself to impose preventive suspension through the medium of the IRR of PD 1986. It is true that the matter of imposing preventive suspension is embodied only in the IRR of PD 1986. Sec. 3, Chapter XIII of the IRR provides: Sec. 3. PREVENTION SUSPENSION ORDER.Any time during the pendency of the case, and in order to prevent or stop further violations or for the interest and welfare of the public, the Chairman of the Board may issue a Preventive Suspension Order mandating the preventive x x x suspension of the permit/permits involved, and/or closure of the x x x television network, cable TV station x x x provided that the temporary/preventive order thus issued shall have a life of not more than twenty (20) days from the date of issuance. But the mere absence of a provision on preventive suspension in PD 1986, without more, would not work to deprive the MTRCB a basic disciplinary tool, such as preventive suspension. Recall that the MTRCB is expressly empowered by statute to regulate and supervise television programs to obviate the exhibition or broadcast of, among others, indecent or immoral materials and to impose sanctions for violations and, corollarily, to prevent further violations as it investigates. Contrary to petitioners assertion, the aforequoted Sec. 3 of the I RR neither amended PD 1986 nor extended the effect of the law. Neither did the MTRCB, by imposing the assailed preventive suspension, outrun its authority under the law. Far from it. The preventive suspension was actually done in furtherance of the law, imposed pursuant, to repeat, to the MTRCBs duty of regulating or supervising television programs, pending a determination of whether or not there has actually been a violation. In the final analysis, Sec. 3, Chapter XIII of the 2004 IRR merely formalized a power which PD 1986 bestowed, albeit impliedly, on MTRCB.

Sec. 3(c) and (d) of PD 1986 finds application to the present case, sufficient to authorize the MTRCBs assailed action. Petitioners restrictive reading of PD 1986, limiting the MTRCB to functions within the literal confines of the law, would give the agency little leeway to operate, stifling and rendering it inutile, when Sec. 3(k) of PD 1986 clearly intends to grant the MTRCB a wide room for flexibility in its operation. Sec. 3(k), we re iterate, provides, To exercise such powers and functions as may be necessary or incidental to the attainment of the purposes and objectives of this Act x x x. Indeed, the power to impose preventive suspension is one of the implied powers of MTRCB. As distinguished from express powers, implied powers are those that can be inferred or are implicit in the [17] wordings or conferred by necessary or fair implication of the enabling act. As we held in Angara v. Electoral Commission, when a general grant of power is conferred or a duty enjoined, every particular power necessary for the [18] exercise of one or the performance of the other is also conferred by necessary implication. Clearly, the power to impose preventive suspension pending investigation is one of the implied or inherent powers of MTRCB. We cannot agree with petitioners assertion that the aforequoted IRR provision on preventive suspension is applicable only to motion pictures and publicity materials. The scope of the MTRCBs authority extends beyond motion pictures. What the acronym MTRCB stands for would suggest as much. And while the law makes specific reference to the closure of a television network, the suspension of a television program is a far less punitive measure that can be undertaken, with the purpose of stopping further violations of PD 1986. Again, the MTRCB would regretfully be rendered ineffective should it be subject to the restrictions petitioner envisages. Just as untenable is petitioners argument on the nullity of the preventive suspension order on the ground of lack of hearing. As it were, the MTRCB handed out the assailed order after petitioner, in response to a written notice, appeared before that Board for a hearing on private respondents complaint. No less than petitioner admitted that the [19] order was issued after the adjournment of the hearing, proving that he had already appeared before the MTRCB. Under Sec. 3, Chapter XIII of the IRR of PD 1986, preventive suspen sion shall issue [a]ny time during the pendency of the case. In this particular case, it was done after MTRCB duly apprised petitioner of his having possibly violated [20] [21] PD 1986 and of administrative complaints that had been filed against him for such violation. At any event, that preventive suspension can validly be meted out even without a hearing.
[22]

Petitioner next faults the MTRCB for denying him his right to the equal protection of the law, arguing that, owing to the preventive suspension order, he was unable to answer the criticisms coming from the INC ministers. Petitioners position does not persuade. The equal protection clause demands that all persons subject to legislation should be treated alike, under like circumstances and conditions both in the privileges conferred and [23] liabilities imposed. It guards against undue favor and individual privilege as well as hostile [24] discrimination. Surely, petitioner cannot, under the premises, place himself in the same shoes as the INC ministers, who, for one, are not facing administrative complaints before the MTRCB. For another, he offers no proof that the said ministers, in their TV programs, use language similar to that which he used in his own, necessitating the MTRCBs disciplinary action. If the immediate result of the preventive suspension order is that petitioner remains temporarily gagged and is unable to answer his critics, this does not become a deprivation of the equal protection guarantee. The Court need not belabor the fact that the circumstances of petitioner, as host of Ang Dating Daan, on one hand, and the INC ministers, as hosts of Ang Tamang Daan, on the other, are, within the purview of this case, simply too different to even consider whether or not there is a prima facie indication of oppressive inequality. Petitioner next injects the notion of religious freedom, submitting that what he uttered was religious speech, adding that words like putang babae were said in exercise of his religious freedom. The argument has no merit. The Court is at a loss to understand how petitioners utterances in question can come within the pale of Sec. 5, Article III of the 1987 Constitution on religious freedom. The section reads as follows: No law shall be made respecting the establishment of a religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights. There is nothing in petitioners statements subject of the complaints expressing any particular religious belief, nothing furthering his avowed evangelical mission. The fact that he came out with his statements in a televised bible exposition program does not automatically accord them the character of a religious discourse. Plain and simple insults directed at another person cannot be elevated to the status of religious speech. Even petitioners attempts to

place his words in context show that he was moved by anger and the need to seek retribution, not by any religious conviction. His claim, assuming its veracity, that some INC ministers distorted his statements respecting amounts Ang Dating Daan owed to a TV station does not convert the foul language used in retaliation as religious speech. We cannot accept that petitioner made his statements in defense of his reputation and religion, as they constitute no intelligible defense or refutation of the alleged lies being spread by a rival religious group. They simply illustrate that petitioner had descended to the level of name-calling and foul-language discourse. Petitioner could have chosen to contradict and disprove his detractors, but opted for the low road. Petitioner, as a final point in G.R. No. 164785, would have the Court nullify the 20-day preventive suspension order, being, as insisted, an unconstitutional abridgement of the freedom of speech and expression and an impermissible prior restraint. The main issue tendered respecting the adverted violation and the arguments holding such issue dovetails with those challenging the three-month suspension imposed under the assailed September 27, 2004 MTRCB decision subject of review under G.R. No. 165636. Both overlapping issues and arguments shall be jointly addressed. G.R. No. 165636 Petitioner urges the striking down of the decision suspending him from hosting Ang Dating Daan for three months on the main ground that the decision violates, apart from his religious freedom, his freedom of speech and expression guaranteed under Sec. 4, Art. III of the Constitution, which reads: 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 grievance.

He would also have the Court declare PD 1986, its Sec. 3(c) in particular, unconstitutional for reasons articulated in this petition. We are not persuaded as shall be explained shortly. But first, we restate certain general concepts and principles underlying the freedom of speech and expression. It is settled that expressions by means of newspapers, radio, television, and motion pictures come within the [25] broad protection of the free speech and expression clause. Each method though, because of its dissimilar presence in the lives of people and accessibility to children, tends to present its own problems in the area of free speech protection, with broadcast media, of all forms of communication, enjoying a lesser degree of [26] protection. Just as settled is the rule that restrictions, be it in the form of prior restraint, e.g., judicial injunction against publication or threat of cancellation of license/franchise, or subsequent liability, whether in libel and damage suits, prosecution for sedition, or contempt proceedings, are anathema to the freedom of expression. Prior restraint means official government restrictions on the press or other forms of expression in advance of actual [27] publication or dissemination. The freedom of expression, as with the other freedoms encased in the Bill of Rights, is, however, not absolute. It may be regulated to some extent to serve important public interests, some forms of speech not being protected. As has been held, the limits of the freedom of expression are reached when the [28] expression touches upon matters of essentially private concern. In the oft-quoted expression of Justice Holmes, the constitutional guarantee obviously was not intended to give immunity for every possible use of [29] language. From Lucas v. Royo comes this line: [T]he freedom to express ones sentiments and belief does not grant one the license to vilify in public the honor and integrity of another. Any sentiments must be expressed within [30] the proper forum and with proper regard for the rights of others. Indeed, as noted in Chaplinsky v. State of New Hampshire, there are certain well-defined and narrowly limited classes of speech that are harmful, the prevention and punishment of which has never been thought to raise any Constitutional problems. In net effect, some forms of speech are not protected by the Constitution, meaning that [32] restrictions on unprotected speech may be decreed without running afoul of the freedom of speech clause. A speech would fall under the unprotected type if the utterances involved are no essential part of any exposition of ideas, and are of such slight social value as a step of truth that any benefit that may be derived from them is clearly [33] outweighed by the social interest in order and morality. Being of little or no value, there is, in dealing with or regulating them, no imperative call for the application of the clear and present danger rule or the balancing-of-interest [34] test, they being essentially modes of weighing competing values, or, with like effect, determining which of the clashing interests should be advanced. Petitioner asserts that his utterance in question is a protected form of speech.
[31]

The Court rules otherwise. It has been established in this jurisdiction that unprotected speech or low-value expression refers to libelous statements, obscenity or pornography, false or misleading advertisement, insulting or fighting words, i.e., those which by their very utterance inflict injury or tend to incite an immediate breach of peace and expression endangering national security. The Court finds that petitioners statement can be treated as obscene, at least with respect to the average child. Hence, it is, in that context, unprotected speech. In Fernando v. Court of Appeals, the Court expressed difficulty in formulating a definition of obscenity that would apply to all cases, but nonetheless stated the ensuing observations on the matter: There is no perfect definition of obscenity but the latest word is that of Miller v. California which established basic guidelines, to wit: (a) whether to the average person, applying contemporary standards would find the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. But, it would be a serious misreading ofMiller to conclude that the trier of facts has the unbridled discretion in determining what is patently offensive. x x x What remains clear is that obscenity is an issue proper for judicial determination [35] and should be treated on a case to case basis and on the judges sound discretion.
[36]

Following the contextual lessons of the cited case of Miller v. California, a patently offensive utterance would come within the pale of the term obscenityshould it appeal to the prurient interest of an average listener applying contemporary standards. A cursory examination of the utterances complained of and the circumstances of the case reveal that to an average adult, the utterances Gago ka talaga x x x, masahol ka pa sa putang babae x x x. Yung putang babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba! may not constitute obscene but merely indecent utterances. They can be viewed as figures of speech or merely a play on words. In the context they were used, they may not appeal to the prurient interests of an adult. The problem with the challenged statements is that they were uttered in a TV program that is rated G or for general viewership, and in a time slot that would likely reach even the eyes and ears of children. While adults may have understood that the terms thus used were not to be taken literally, children could hardly be expected to have the same discernment. Without parental guidance, the unbridled use of such language as that of petitioner in a television broadcast could corrupt impressionable young minds. The term putang babae means a female prostitute, a term wholly inappropriate for children, who could look it up in a dictionary and just get the literal meaning, missing the context within which it was used. Petitioner further used the terms, ang gumagana lang doon yung ibaba, making reference to the female sexual organ and how a female prostitute uses it in her trade, then stating that Sandoval was worse than that by using his mouth in a similar manner. Children could be motivated by curiosity and ask the meaning of what petitioner said, also without placing the phrase in context. They may be inquisitive as to why Sandoval is different from a female prostitute and the reasons for the dissimilarity. And upon learning the meanings of the words used, young minds, without the guidance of an adult, may, from their end, view this kind of indecent speech as obscene, if they take these words literally and use them in their own speech or form their own ideas on the matter. In this particular case, where children had the opportunity to hear petitioners words, when speaking of the average person in the test for obscenity, we are speaking of the average child, not the average adult. The average child may not have the adults grasp of figures of speech, and may lack the understanding that language may be colorful, and words may convey more than the literal meaning. Undeniably the subject speech is very suggestive of a female sexual organ and its function as s uch. In this sense, we find petitioners utterances obscene and not entitled to protection under the umbrella of freedom of speech. Even if we concede that petitioners remarks are not obscene but merely indecent speech, still the Court rules that petitioner cannot avail himself of the constitutional protection of free speech. Said statements were made in a medium easily accessible to children. With respect to the young minds, said utterances are to be treated as unprotected speech. No doubt what petitioner said constitutes indecent or offensive utterances. But while a jurisprudential pattern involving certain offensive utterances conveyed in different mediums has emerged, this case is veritably one of first impression, it being the first time that indecent speech communicated via television and the applicable norm for its regulation are, in this jurisdiction, made the focal point. Federal Communications [37] Commission (FCC) v. Pacifica Foundation, a 1978 American landmark case cited in Eastern Broadcasting [38] [39] Corporation v. Dans, Jr. and Chavez v. Gonzales, is a rich source of persuasive lessons. Foremost of these

relates to indecent speech without prurient appeal component coming under the category of protected speech depending on the context within which it was made, irresistibly suggesting that, within a particular context, such indecent speech may validly be categorized as unprotected, ergo, susceptible to restriction. In FCC, seven of what were considered filthy words earlier recorded in a monologue by a satiric humorist later aired in the afternoon over a radio station owned by Pacifica Foundation. Upon the complaint of a man who heard the pre-recorded monologue while driving with his son, FCC declared the language used as patently offensive and indecent under a prohibiting law, though not necessarily obscene. FCC added, however, that its declaratory order was issued in a special factual context, referring, in gist, to an afternoon radio broadcast when children were undoubtedly in the audience. Acting on the question of whether the FCC could regulate the subject utterance, the US Supreme Court ruled in the affirmative, owing to two special features of the broadcast medium, to wit: (1) radio is a pervasive medium and (2) broadcasting is uniquely accessible to children. The US Court, however, hastened to add that the monologue would be protected speech in other contexts, albeit it did not expound and identify a compelling state interest in putting FCCs content -based regulatory action under scrutiny. The Court in Chavez elucidated on the distinction between regulation or restriction of protected speech that is content-based and that which is content-neutral. A content-based restraint is aimed at the contents or idea of the expression, whereas a content-neutral restraint intends to regulate the time, place, and manner of the expression under well-defined standards tailored to serve a compelling state interest, without restraint on the message of the expression. Courts subject content-based restraint to strict scrutiny. With the view we take of the case, the suspension MTRCB imposed under the premises was, in one perspective, permissible restriction. We make this disposition against the backdrop of the following interplaying factors: First, the indecent speech was made via television, a pervasive medium that, to borrow from Gonzales v. [42] Kalaw Katigbak, easily reaches every home where there is a set [and where] [c]hildren will likely be among the avid viewers of the programs therein shown; second, the broadcast was aired at the time of the day when there was a reasonable risk that children might be in the audience; and third, petitioner uttered his speech on a G or for general patronage rated program. Under Sec. 2(A) of Chapter IV of the IRR of the MTRCB, a show for general patronage is [s]uitable for all ages, meaning that the material for television x x x in the judgment of the BOARD, does not contain anything unsuitable for children and minors, and may be viewed without adult guidance or supervision. The words petitioner used were, by any civilized norm, clearly not suitable for children. Where a language is categorized as indecent, as in petitioners utterances on a general -patronage rated TV program, it may be readily proscribed as unprotected speech. A view has been advanced that unprotected speech refers only to pornography, false or misleading [44] advertisement, advocacy of imminent lawless action, and expression endangering national security. But this list is not, as some members of the Court would submit, exclusive or carved in stone. Without going into specifics, it may be stated without fear of contradiction that US decisional law goes beyond the aforesaid general exceptions. As the Court has been impelled to recognize exceptions to the rule against censorship in the past, this particular case constitutes yet another exception, another instance of unprotected speech, created by the necessity of protecting the welfare of our children. As unprotected speech, petitioners utterances can be subjected to restraint or regulation. Despite the settled ruling in FCC which has remained undisturbed since 1978, petitioner asserts that his utterances must present a clear and present danger of bringing about a substantive evil the State has a right and duty [45] to prevent and such danger must be grave and imminent. Petitioners invocation of the clear and present danger doctrine, arguably the most permissive of speech tests, would not avail him any relief, for the application of said test is uncalled for under the premises. The doctrine, first formulated by Justice Holmes, accords protection for utterances so that the printed or spoken words may not be subject to prior restraint or subsequent punishment unless its expression creates a clear and present danger of [46] bringing about a substantial evil which the government has the power to prohibit. Under the doctrine, freedom of speech and of press is susceptible of restriction when and only when necessary to prevent grave and immediate danger to interests which the government may lawfully protect. As it were, said doctrine evolved in the context of [47] prosecutions for rebellion and other crimes involving the overthrow of government. It was originally designed to determine the latitude which should be given to speech that espouses anti-government action, or to have serious and [48] substantial deleterious consequences on the security and public order of the community. The clear and present [49] danger rule has been applied to this jurisdiction. As a standard of limitation on free speech and press, however, the clear and present danger test is not a magic incantation that wipes out all problems and does away with analysis and judgment in the testing of the legitimacy of claims to free speech and which compels a court to release a defendant [50] from liability the moment the doctrine is invoked, absent proof of imminent catastrophic disaster. As we observed in Eastern Broadcasting Corporation, the clear and present danger test does not lend itself to a simplistic and all [51] embracing interpretation applicable to all utterances in all forums.
[43] [41] [40]

To be sure, the clear and present danger doctrine is not the only test which has been applied by the courts. Generally, said doctrine is applied to cases involving the overthrow of the government and even other evils which do not clearly undermine national security. Since not all evils can be measured in terms of proximity and [52] degree the Court, however, in several casesAyer Productions v. Capulong and Gonzales v. [53] COMELEC, applied the balancing of interests test. Former Chief Justice Fred Ruiz Castro, in Gonzales v. COMELEC, elucidated in his Separate Opinion that where the legisl ation under constitutional attack interferes with the freedom of speech and assembly in a more generalized way and where the effect of the speech and assembly in terms of the probability of realization of a specific danger is not susceptible even of impressionistic [54] calculation, then the balancing of interests test can be applied. The Court explained also in Gonzales v. COMELEC the balancing of interests test: When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of the two conflicting interests demands the greater protection under the particular circumstances presented. x x x We must, therefore, undertake the delicate and difficult task x x x to weigh the circumstances and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of rights x x x. In enunciating standard premised on a judicial balancing of the conflicting social values and individual interests competing for ascendancy in legislation which restricts expression, the court in Douds laid the basis for what has been called the balancing -of-interests test which has found application in more recent decisions of the U.S. Supreme Court. Briefly stated, the balancing test requires a court to take conscio us and detailed consideration of the interplay of interests observable in a given situation or type of situation. xxxx Although the urgency of the public interest sought to be secured by Congressional power restricting the individuals freedom, and the social importance and value of the freedom so restricted, are to be judged in the concrete, not on the basis of abstractions, a wide range of factors are necessarily relevant in ascertaining the point or line of equilibrium. Among these are (a) the social value and importance of the specific aspect of the particular freedom restricted by the legislation; (b) the specific thrust of the restriction, i.e., whether the restriction is direct or indirect, whether or not the persons affected are few; (c) the value and importance of the public interest sought to be secured by the legislation the reference here is to the nature and gravity of the evil which Congress seeks to prevent; (d) whether the specific restriction decreed by Congress is reasonably appropriate and necessary for the protection of such public interest; and (e) whether the necessary safeguarding of the public interest involved [55] may be achieved by some other measure less restrictive of the protected freedom. This balancing of interest test, to borrow from Professor Kauper, rests on the theory that it is the courts function in a case before it when it finds public interests served by legislation, on the one hand, and the free expression clause affected by it, on the other, to balance one against the other and arrive at a judgment where the greater weight shall be placed. If, on balance, it appears that the public interest served by restrictive legislation is of such nature that it outweighs the abridgment of freedom, then the court will find the legislation valid. In short, the balance-of-interests theory rests on the basis that constitutional freedoms are not absolute, not even those stated in the free speech and expression clause, and that they may be abridged to some extent to serve appropriate and [57] important interests. To the mind of the Court, the balancing of interest doctrine is the more appropriate test to follow. In the case at bar, petitioner used indecent and obscene language and a three (3)-month suspension was slapped on him for breach of MTRCB rules. In this setting, the assertion by petitioner of his enjoyment of his freedom of speech is ranged against the duty of the government to protect and promote the development and welfare of the youth. After a careful examination of the factual milieu and the arguments raised by petitioner in support of his claim to free speech, the Court rules that the governments interest to protect and promote the interests and welfare of the children adequately buttresses the reasonable curtailment and valid restraint on petitioners prayer to continue as program host of Ang Dating Daan during the suspension period.
[56]

No doubt, one of the fundamental and most vital rights granted to citizens of a State is the freedom of speech or expression, for without the enjoyment of such right, a free, stable, effective, and progressive democratic state would be difficult to attain. Arrayed against the freedom of speech is the right of the youth to their moral, spiritual, intellectual, and social being which the State is constitutionally tasked to promote and protect. Moreover, the State is also mandated to recognize and support the vital role of the youth in nation building as laid down in Sec. 13, Art. II of the 1987 Constitution. The Constitution has, therefore, imposed the sacred obligation and responsibility on the State to provide protection to the youth against illegal or improper activities which may prejudice their general well-being. The Article on youth, approved on second reading by the Constitutional Commission, explained that the State shall extend social protection to minors against all forms of neglect, cruelty, exploitation, immorality, and practices which may [58] foster racial, religious or other forms of discrimination. Indisputably, the State has a compelling interest in extending social protection to minors against all forms of neglect, exploitation, and immorality which may pollute innocent minds. It has a compelling interest in helping parents, through regulatory mechanisms, protect their childrens minds from exposure to undesirable materials and corrupting experiences. The Constitution, no less, in fact enjoins the State, as earlier indicated, to promote and protect the physical, moral, spiritual, intellectual, and social well-being of the youth to better prepare them fulfill their [59] role in the field of nation-building. In the same way, the State is mandated to support parents in the rearing of the [60] youth for civic efficiency and the development of moral character. Petitioners offensive and obscene language uttered in a television broadcast, without doubt, was easily accessible to the children. His statements could have exposed children to a language that is unacceptable in everyday use. As such, the welfare of children and the States mandate to protect and c are for them, as parens [61] patriae, constitute a substantial and compelling government interest in regulating petitioners utterances in TV broadcast as provided in PD 1986. FCC explains the duty of the government to act as parens patriae to protect the children who, because of age or interest capacity, are susceptible of being corrupted or prejudiced by offensive language, thus: [B]roadcasting is uniquely accessible to children, even those too young to read. Although Cohens written message, [Fuck the Draft], might have been incomprehensible to a first grader, Pacificas broadcast could have enlarged a childs vocabulary in an instant. Other forms of offensive expression may be withheld from the young without restricting the expression at its source. Bookstores and motion picture theaters, for example, may be prohibited from making indecent material available to children. We held in Ginsberg v. New York that the governments interest in the well-being of its youth and in supporting parents claim to authority in their own household justified the regulation of otherwise protected expression. The ease with which children may obtain access to broadcast material, coupled with the concerns recognized in Ginsberg, amply justify special treatment of indecent broadcasting.

Moreover, Gonzales v. Kalaw Katigbak likewise stressed the duty of the State to attend to the welfare of the young: x x x It is the consensus of this Court that where television is concerned, a less liberal approach calls for observance. This is so because unlike motion pictures where the patrons have to pay their way, television reaches every home where there is a set. Children then will likely will be among the avid viewers of the programs therein shown. As was observed by Circuit Court of Appeals Judge Jerome Frank, it is hardly the concern of the law to deal with the sexual fantasies of the adult population. It cannot be denied though that the State as parens patriae is called upon to [62] manifest an attitude of caring for the welfare of the young.

The compelling need to protect the young impels us to sustain the regulatory action MTRCB took in the narrow confines of the case. To reiterate, FCC justified the restraint on the TV broadcast grounded on the following considerations: (1) the use of television with its unique accessibility to children, as a medium of broadcast of a patently offensive speech; (2) the time of broadcast; and (3) the G rating of the Ang Dating Daan program. And in agreeing with MTRCB, the court takes stock of and cites with approval the following excerpts from FCC: It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case does not involve a two-way radio conversation between a cab driver and a dispatcher, or a telecast

of an Elizabethan comedy. We have not decided that an occasional expletive in either setting would justify any sanction. x x x The [FFCs] decision rested entirely on a nuisance rationale under which context is all important. The concept requires consideration of a host of variables. The time of day was emphasized by the [FFC]. The content of the program in which the language is used will affect the composition of the audience x x x. As Mr. Justice Sutherland wrote a nuisance may be m erely a right thing in the wrong place, like a pig in the parlor instead of the barnyard. We simply hold that when the [FCC] finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene. (Citation omitted.) There can be no quibbling that the remarks in question petitioner uttered on prime-time television are blatantly indecent if not outright obscene. It is the kind of speech that PD 1986 proscribes necessitating the exercise by MTRCB of statutory disciplinary powers. It is the kind of speech that the State has the inherent prerogative, nay duty, to regulate and prevent should such action served and further compelling state interests. One who utters indecent, insulting, or offensive words on television when unsuspecting children are in the audience is, in the graphic language of FCC, a pig in the parlor. Public interest would be served if the pig is reasonably restrained or even removed from the parlor. Ergo, petitioners offensive and indecent language can be subjected to prior restraint. Petitioner theorizes that the three (3)-month suspension is either prior restraint or subsequent punishment that, however, includes prior restraint, albeit indirectly. After a review of the facts, the Court finds that what MTRCB imposed on petitioner is an administrative sanction or subsequent punishment for his offensive and obscene language in Ang Dating Daan. To clarify, statutes imposing prior restraints on speech are generally illegal and presumed unconstitutional breaches of the freedom of speech. The exceptions to prior restraint are movies, television, and radio broadcast censorship in view of its access to numerous people, including the young who must be insulated from the prejudicial effects of unprotected speech. PD 1986 was passed creating the Board of Review for Motion Pictures and Television (now MTRCB) and which requires prior permit or license before showing a motion picture or broadcasting a TV program. The Board can classify movies and television programs and can cancel permits for exhibition of films or television broadcast. The power of MTRCB to regulate and even impose some prior restraint on radio and television shows, even religious programs, was upheld in Iglesia Ni Cristov. Court of Appeals. Speaking through Chief Justice Reynato S. Puno, the Court wrote: We thus reject petitioners postulate that its religious program is per se beyond review by the respondent Board. Its public broadcast on TV of its religious program brings it out of the bosom of internal belief. Television is a medium that reaches even the eyes and ears of children. The Court iterates the rule that the exercise of religious freedom can be regulated by the State when it will bring about the clear and present danger of some substantive evil which the State is duty bound to prevent, i.e., serious detriment to the more overriding interest of public health, public morals, or public welfare. x x x xxxx While the thesis has a lot to commend itself, we are not ready to hold that [PD 1986] is unconstitutional for Congress to grant an administrative body quasi-judicial power to preview and classify TV programs and enforce its decision subject to review by our courts. As far back as 1921, we upheld this setup in Sotto vs. Ruiz, viz: The use of the mails by private persons is in the nature of a privilege which can be regulated in order to avoid its abuse. Persons possess no absolute right to put into the [63] mail anything they please, regardless of its character. Bernas adds: Under the decree a movie classification board is made the arbiter of what movies and television programs or parts of either are fit for public consumption. It decides what movies are immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Repub lic of the Philippines or its people, and what tend to incite subversion, insurrection, rebellion or

sedition, or tend to undermine the faith and confidence of the people in their government and/or duly constituted authorities, etc. Moreover, its decisions are executory unless stopped by a [64] court.
[65]

Moreover, in MTRCB v. ABS-CBN Broadcasting Corporation, it was held that the power of review and prior approval of MTRCB extends to all television programs and is valid despite the freedom of speech guaranteed by the Constitution. Thus, all broadcast networks are regulated by the MTRCB since they are required to get a permit before they air their television programs. Consequently, their right to enjoy their freedom of speech is subject to that requirement. As lucidly explained by Justice Dante O. Tinga, government regulations through the MTRCB became a necessary evil with the government taking the role of assigning bandwidth to individual broadcasters. The stations explicitly agreed to this regulatory scheme; otherwise, chaos would result in the television broadcast industry as competing broadcasters will interfere or co-opt each others signals. In this scheme, station owners and broadcasters in effect waived their right to the full enjoyment of their right to freedom of speech in radio and television programs and impliedly agreed that said right may be subject to prior restraint denial of permit or subsequent punishment, like suspension or cancellation of permit, among others. The three (3) months suspension in this case is not a prior restraint on the right of petitioner to continue with the broadcast of Ang Dating Daan as a permit was already issued to him by MTRCB for such broadcast. Rather, the suspension is in the form of permissible administrative sanction or subsequent punishment for the offensive and obscene remarks he uttered on the evening of August 10, 2004 in his television program, Ang Dating Daan. It is a sanction that the MTRCB may validly impose under its charter without running afoul of the free speech clause. And the imposition is separate and distinct from the criminal action the Board may take pursuant to Sec. 3(i) of PD 1986 and the remedies that may be availed of by the aggrieved private party under the provisions on libel or tort, if applicable. As FCCteaches, the imposition of sanctions on broadcasters who indulge in profane or indecent broadcasting does not constitute forbidden censorship. Lest it be overlooked, the sanction imposed is not per se for petitioners exercise of his freedom of speech via television, but for the indecent contents of his utterances in a G rated TV program. More importantly, petitioner is deemed to have yielded his right to his full enjoyment of his freedom of speech to regulation under PD 1986 and its IRR as television station owners, program producers, and hosts have impliedly accepted the power of MTRCB to regulate the broadcast industry. Neither can petitioners virtual inability to speak in his program d uring the period of suspension be plausibly treated as prior restraint on future speech. For viewed in its proper perspective, the suspension is in the nature of an intermediate penalty for uttering an unprotected form of speech. It is definitely a lesser punishment than the permissible cancellation of exhibition or broadcast permit or license. In fine, the suspension meted was simply part of the duties of the MTRCB in the enforcement and administration of the law which it is tasked to implement. Viewed in its proper context, the suspension sought to penalize past speech made on prime-time G rated TV program; it does not bar future speech of petitioner in other television programs; it is a permissible subsequent administrative sanction; [66] it should not be confused with a prior restraint on speech. While not on all fours, the Court, in MTRCB, sustained the power of the MTRCB to penalize a broadcast company for exhibiting/airing a pre-taped TV episode without Board authorization in violation of Sec. 7 of PD 1986. Any simplistic suggestion, however, that the MTRCB would be crossing the limits of its authority were it to regulate and even restrain the prime-time television broadcast of indecent or obscene speech in a G rated program is not acceptable. As made clear in Eastern Broadcasting Corporation, the freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print media. The MTRCB, as a regulatory agency, must have the wherewithal to enforce its mandate, which would not be effective if its punitive actions would be limited to mere fines. Television broadcasts should be subject to some form of regulation, considering the ease with which they can be accessed, and violations of the regulations must be met with appropriate and proportional disciplinary action. The suspension of a violating television program would be a sufficient punishment and serve as a deterrent for those responsible. The prevention of the broadcast of petitioners television program is justified, and does not constitute prohibited prior restraint. It behooves the Court to respond to the needs of the changing times, and craft jurisprudence to reflect these times. Petitioner, in questioning the three-month suspension, also tags as unconstitutional the very law creating the MTRCB, arguing that PD 1986, as applied to him, infringes also upon his freedom of religion. The Court has earlier adequately explained why petitioners undue reliance on the religious freedom cannot lend justification, let alone an exempting dimension to his licentious utterances in his program. The Court sees no need to address anew the repetitive arguments on religious freedom. As earlier discussed in the disposition of the petition in G.R. No. 164785, what was uttered was in no way a religious speech. Parenthetically, petitioners attempt to characterize his speech as a legitimate defense of his religion fails miserably. He tries to place his words in perspective, arguing evidently as

an afterthought that this was his method of refuting the alleged distortion of his statements by the INC hosts of Ang Tamang Daan. But on the night he uttered them in his television program, the word simply came out as profane language, without any warning or guidance for undiscerning ears. As to petitioners other argument about having been denied due process and equal protecti on of the law, suffice it to state that we have at length debunked similar arguments in G.R. No. 164785. There is no need to further delve into the fact that petitioner was afforded due process when he attended the hearing of the MTRCB, and that he was unable to demonstrate that he was unjustly discriminated against in the MTRCB proceedings. Finally, petitioner argues that there has been undue delegation of legislative power, as PD 1986 does not provide for the range of imposable penalties that may be applied with respect to violations of the provisions of the law. The argument is without merit. In Edu v. Ericta, the Court discussed the matter of undue delegation of legislative power in the following wise: It is a fundamental principle flowing from the doctrine of separation of powers that Congress may not delegate its legislative power to the two other branches of the government, subject to the exception that local governments may over local affairs participate in its exercise. What cannot be delegated is the authority under the Constitution to make laws and to alter and repeal them; the test is the completeness of the statute in all its term and provisions when it leaves the hands of the legislature. To determine whether or not there is an undue delegation of legislative power, the inquiry must be directed to the scope and definiteness of the measure enacted. The legislature does not abdicate its functions when it describes what job must be done, who is to do it, and what is the scope of his authority. For a complex economy, that may indeed be the only way in which the legislative process can go forward. A distinction has rightfully been made between delegation of power to make laws which necessarily involves a discretion as to what it shall be, which constitutionally may not be done, and delegation of authority or discretion as to its execution to be exercised under and in pursuance of the law, to which no valid objection can be made. The Constitution is thus not to be regarded as denying the legislature the necessary resources of flexibility and practicability. To avoid the taint of unlawful delegation, there must be a standard, which implies at the very least that the legislature itself determines matters of principle and lays down fundamental policy. Otherwise, the charge of complete abdication may be hard to repel. A standard thus defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative command is to be effected. It is the criterion by which legislative purpose may be carried out. Thereafter, the executive or administrative office designated may in pursuance of the above guidelines promulgate [67] supplemental rules and regulations. Based on the foregoing pronouncements and analyzing the law in question, petitioners protestation about undue delegation of legislative power for the sole reason that PD 1986 does not provide for a range of penalties for violation of the law is untenable. His thesis is that MTRCB, in promulgating the IRR of PD 1986, prescribing a schedule of penalties for violation of the provisions of the decree, went beyond the terms of the law. Petitioners posture is flawed by the erroneous assumptions holding it together, the first assumption being that PD 1986 does not prescribe the imposition of, or authorize the MTRCB to impose, penalties for violators of PD 1986. As earlier indicated, however, the MTRCB, by express and direct conferment of power and functions, is charged with supervising and regulating, granting, denying, or canceling permits for the exhibition and/or television broadcast of all motion pictures, television programs, and publicity materials to the end that no such objectionable pictures, programs, and materials shall be exhibited and/or broadcast by television. Complementing this provision is Sec. 3(k) of the decree authorizing the MTRCB to exercise such powers and functions as may be necessary or incidental to the attainment of the purpose and objectives of [the law]. As earlier explained, the investiture of supervisory, regulatory, and disciplinary power would surely be a meaningless grant if it did not carry with it the power to penalize the supervised or the regulated as may be proportionate to the offense committed, charged, and proved. As the Court said in Chavez v. National Housing Authority:

x x x [W]hen a general grant of 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. x x x [W]hen the statute does not specify the particular method to be followed or used by a government agency in the exercise of the power vested in it by law, said agency has the authority to adopt any [68] reasonable method to carry out its function.

Given the foregoing perspective, it stands to reason that the power of the MTRCB to regulate and supervise the exhibition of TV programs carries with it or necessarily implies the authority to take effective punitive action for violation of the law sought to be enforced. And would it not be logical too to say that the power to deny or cancel a permit for the exhibition of a TV program or broadcast necessarily includes the lesser power to suspend? The MTRCB promulgated the IRR of PD 1986 in accordance with Sec. 3(a) which, for reference, provides that agency with the power [to] promulgate such rules and regulations as are necessary or proper for the implementation of this Act, and the accomplishment of its purposes and objectives x x x. And Chapter XIII, Sec. 1 of the IRR providing: Section 1. VIOLATIONS AND ADMINISTRATIVE SANCTIONS.Without prejudice to the immediate filing of the appropriate criminal action and the immediate seizure of the pertinent articles pursuant to Section 13, any violation of PD 1986 and its Implementing Rules and Regulations governing motion pictures, television programs, and related promotional materials shall be penalized with suspension or cancellation of permits and/or licenses issued by the Board and/or with the imposition of fines and other administrative penalty/penalties. The Board recognizes the existing Table of Administrative Penalties attached without prejudice to the power of the Board to amend it when the need arises. In the meantime the existing revised Table of Administrative Penalties shall be enforced. (Emphasis added.)

This is, in the final analysis, no more than a measure to specifically implement the aforequoted provisions of Sec. 3(d) and (k). Contrary to what petitioner implies, the IRR does not expand the mandate of the MTRCB under the law or partake of the nature of an unauthorized administrative legislation. The MTRCB cannot shirk its responsibility to regulate the public airwaves and employ such means as it can as a guardian of the public. In Sec. 3(c), one can already find the permissible actions of the MTRCB, along with the standards to be applied to determine whether there have been statutory breaches. The MTRCB may evaluate motion pictures, television programs, and publicity materials applying contemporary Filipino cultural values as standard, and, from there, determine whether these audio and video materials are objectionable for being immoral, indecent, contrary to law and/or good customs, [etc.] x x x and apply the sanctions it deems proper. The lawmaking body cannot possibly [69] provide for all the details in the enforcement of a particular statute. The grant of the rule-making power to administrative agencies is a relaxation of the principle of separation of powers and is an exception to the non[70] delegation of legislative powers. Administrative regulations or subordinate legislation calculated to promote the public interest are necessary because of the growing complexity of modern life, th e multiplication of the subjects of [71] governmental regulations, and the increased difficulty of administering the law. Allowing the MTRCB some reasonable elbow-room in its operations and, in the exercise of its statutory disciplinary functions, according it ample latitude in fixing, by way of an appropriate issuance, administrative penalties with due regard for the severity of the offense and attending mitigating or aggravating circumstances, as the case may be, would be consistent with its mandate to effectively and efficiently regulate the movie and television industry. But even as we uphold the power of the MTRCB to review and impose sanctions for violations of PD 1986, its decision to suspend petitioner must be modified, for nowhere in that issuance, particularly the power-defining Sec. 3 nor in the MTRCB Schedule of Administrative Penalties effective January 1, 1999 is the Board empowered to suspend the program host or even to prevent certain people from appearing in television programs. The MTRCB, to be sure, may prohibit the broadcast of such television programs or cancel permits for exhibition, but it may not suspend television personalities, for such would be beyond its jurisdiction. The MTRCB cannot extend its exercise of regulation beyond what the law provides. Only persons, offenses, and penalties clearly falling clearly within the letter and spirit of PD 1986 will be considered to be within the decrees penal or disciplinary operation. And when it exists, the reasonable doubt must be resolved in favor of the person charged with violating the statute and for whom the penalty is sought. Thus, the MTRCBs decision in Administrative Case No . 01-04 dated September 27, 2004 and the subsequent order issued pursuant to said decision must be modified. The suspension should cover only the television program on which petitioner appeared and uttered the offensive and obscene language, which sanction is what the law and the facts obtaining call for.

In ending, what petitioner obviously advocates is an unrestricted speech paradigm in which absolute permissiveness is the norm. Petitioners flawed belief that he may simply utter gutter profanity on t elevision without adverse consequences, under the guise of free speech, does not lend itself to acceptance in this jurisdiction. We repeat: freedoms of speech and expression are not absolute freedoms. To say any act that restrains speech should be greeted with furrowed brows is not to say that any act that restrains or regulates speech or expression is per se invalid. This only recognizes the importance of freedoms of speech and expression, and indicates the necessity to carefully scrutinize acts that may restrain or regulate speech. WHEREFORE, the decision of the MTRCB in Adm. Case No. 01-04 dated September 27, 2004 is hereby AFFIRMED with the MODIFICATION of limiting the suspension to the program Ang Dating Daan. As thus modified, the fallo of the MTRCB shall read as follows: WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, imposing a penalty of THREE (3) MONTHS SUSPENSION on the television program, Ang Dating Daan, subject of the instant petition. Co-respondents Joselito Mallari, Luzviminda Cruz, and UNTV Channel 37 and its owner, PBC, are hereby exonerated for lack of evidence.

Costs against petitioner. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 122846 January 20, 2009 WHITE LIGHT CORPORATION, TITANIUM CORPORATION and STA. MESA TOURIST & DEVELOPMENT CORPORATION, Petitioners, vs. CITY OF MANILA, represented by DE CASTRO, MAYOR ALFREDO S. LIM, Respondent. DECISION Tinga, J.: With another city ordinance of Manila also principally involving the tourist district as subject, the Court is confronted anew with the incessant clash between government power and individual liberty in tandem with the archetypal tension between law and morality. 1 In City of Manila v. Laguio, Jr., the Court affirmed the nullification of a city ordinance barring the operation of motels and inns, among other establishments, within the Ermita-Malate area. The petition at bar assails a similarly-motivated city ordinance that prohibits those same establishments from offering short-time admission, as well as pro-rated or "wash up" rates for such abbreviated stays. Our earlier decision tested the city ordinance against our sacred constitutional rights to liberty, due process and equal protection of law. The same parameters apply to the present petition. 2 3 This Petition under Rule 45 of the Revised Rules on Civil Procedure, which seeks the reversal of the Decision in C.A.-G.R. S.P. No. 33316 of the Court of Appeals, challenges the validity of Manila City Ordinance No. 7774 entitled, "An Ordinance Prohibiting Short-Time Admission, Short-Time Admission Rates, and Wash-Up Rate Schemes in Hotels, Motels, Inns, Lodging Houses, Pension Houses, and Similar Establishments in the City of Manila" (the Ordinance). I. The facts are as follows: 4 On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim) signed into law the Ordinance. The Ordinance is reproduced in full, hereunder: SECTION 1. Declaration of Policy. It is hereby the declared policy of the City Government to protect the best interest, health and welfare, and the morality of its constituents in general and the youth in particular. SEC. 2. Title. This ordinance shall be known as "An Ordinance" prohibiting short time admission in hotels, motels, lodging houses, pension houses and similar establishments in the City of Manila. SEC. 3. Pursuant to the above policy, short-time admission and rate [sic], wash-up rate or other similarly concocted terms, are hereby prohibited in hotels, motels, inns, lodging houses, pension houses and similar establishments in the City of Manila. SEC. 4. Definition of Term[s]. Short-time admission shall mean admittance and charging of room rate for less than twelve (12) hours at any given time or the renting out of rooms more than twice a day or any other term that may be

concocted by owners or managers of said establishments but would mean the same or would bear the same meaning. SEC. 5. Penalty Clause. Any person or corporation who shall violate any provision of this ordinance shall upon conviction thereof be punished by a fine of Five Thousand (P5,000.00) Pesos or imprisonment for a period of not exceeding one (1) year or both such fine and imprisonment at the discretion of the court; Provided, That in case of [a] juridical person, the president, the manager, or the persons in charge of the operation thereof shall be liable: Provided, further, That in case of subsequent conviction for the same offense, the business license of the guilty party shall automatically be cancelled. SEC. 6. Repealing Clause. Any or all provisions of City ordinances not consistent with or contrary to this measure or any portion hereof are hereby deemed repealed. SEC. 7. Effectivity. This ordinance shall take effect immediately upon approval. Enacted by the city Council of Manila at its regular session today, November 10, 1992. Approved by His Honor, the Mayor on December 3, 1992. On December 15, 1992, the Malate Tourist and Development Corporation (MTDC) filed a complaint for declaratory 5 relief with prayer for a writ of preliminary injunction and/or temporary restraining order ( TRO) with the Regional Trial Court (RTC) of Manila, Branch 9 impleading as defendant, herein respondent City of Manila (the City) represented by 6 Mayor Lim. MTDC prayed that the Ordinance, insofar as it includes motels and inns as among its prohibited establishments, be declared invalid and unconstitutional. MTDC claimed that as owner and operator of the Victoria Court in Malate, Manila it was authorized by Presidential Decree (P.D.) No. 259 to admit customers on a short time basis as well as to charge customers wash up rates for stays of only three hours. On December 21, 1992, petitioners White Light Corporation (WLC), Titanium Corporation (TC) and Sta. Mesa Tourist 7 and Development Corporation (STDC) filed a motion to intervene and to admit attached complaint-in-intervention on the ground that the Ordinance directly affects their business interests as operators of drive-in-hotels and motels in 8 Manila. The three companies are components of the Anito Group of Companies which owns and operates several 9 hotels and motels in Metro Manila. 10 On December 23, 1992, the RTC granted the motion to intervene. The RTC also notified the Solicitor General of the proceedings pursuant to then Rule 64, Section 4 of the Rules of Court. On the same date, MTDC moved to withdraw 11 as plaintiff. 12 On December 28, 1992, the RTC granted MTDC's motion to withdraw. The RTC issued a TRO on January 14, 13 1993, directing the City to cease and desist from enforcing the Ordinance. The City filed an Answer dated January 14 22, 1993 alleging that the Ordinance is a legitimate exercise of police power. On February 8, 1993, the RTC issued a writ of preliminary injunction ordering the city to desist from the enforcement 15 of the Ordinance. A month later, on March 8, 1993, the Solicitor General filed his Comment arguing that the Ordinance is constitutional. During the pre-trial conference, the WLC, TC and STDC agreed to submit the case for decision without trial as the 16 case involved a purely legal question. On October 20, 1993, the RTC rendered a decision declaring the Ordinance null and void. The dispositive portion of the decision reads: WHEREFORE, in view of all the foregoing, [O]rdinance No. 7774 of the City of Manila is hereby declared null and void. Accordingly, the preliminary injunction heretofor issued is hereby made permanent. 17 SO ORDERED. The RTC noted that the ordinance "strikes at the personal liberty of the individual guaranteed and jealously guarded 18 by the Constitution." Reference was made to the provisions of the Constitution encouraging private enterprises and the incentive to needed investment, as well as the right to operate economic enterprises. Finally, from the observation that the illicit relationships the Ordinance sought to dissuade could nonetheless be consummated by simply paying 19 for a 12-hour stay, the RTC likened the law to the ordinance annulled in Ynot v. Intermediate Appellate Court, where the legitimate purpose of preventing indiscriminate slaughter of carabaos was sought to be effected through an interprovince ban on the transport of carabaos and carabeef. 20 The City later filed a petition for review on certiorari with the Supreme Court. The petition was docketed as G.R. No. 112471. However in a resolution dated January 26, 1994, the Court treated the petition as a petition forcertiorari and 21 referred the petition to the Court of Appeals. Before the Court of Appeals, the City asserted that the Ordinance is a valid exercise of police power pursuant to Section 458 (4)(iv) of the Local Government Code which confers on cities, among other local government units, the power: [To] regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses, hotels, motels, inns, 22 pension houses, lodging houses and other similar establishments, including tourist guides and transports. The Ordinance, it is argued, is also a valid exercise of the power of the City under Article III, Section 18(kk) of the Revised Manila Charter, thus: "to enact all ordinances it may deem necessary and proper for the sanitation and safety, the furtherance of the prosperity and the promotion of the morality, peace, good order, comfort, convenience and general welfare of the city and its inhabitants, and such others as be necessary to carry into effect and discharge the powers and duties

conferred by this Chapter; and to fix penalties for the violation of ordinances which shall not exceed two hundred 23 pesos fine or six months imprisonment, or both such fine and imprisonment for a single offense. Petitioners argued that the Ordinance is unconstitutional and void since it violates the right to privacy and the freedom of movement; it is an invalid exercise of police power; and it is an unreasonable and oppressive interference in their business. 24 The Court of Appeals reversed the decision of the RTC and affirmed the constitutionality of the Ordinance. First, it held that the Ordinance did not violate the right to privacy or the freedom of movement, as it only penalizes the owners or operators of establishments that admit individuals for short time stays. Second, the virtually limitless reach of police power is only constrained by having a lawful object obtained through a lawful method. The lawful objective of the Ordinance is satisfied since it aims to curb immoral activities. There is a lawful method since the establishments are still allowed to operate. Third, the adverse effect on the establishments is justified by the well-being of its constituents in general. Finally, as held in Ermita-Malate Motel Operators Association v. City Mayor of Manila, liberty is regulated by law. 25 TC, WLC and STDC come to this Court via petition for review on certiorari. In their petition and Memorandum, petitioners in essence repeat the assertions they made before the Court of Appeals. They contend that the assailed Ordinance is an invalid exercise of police power. II. We must address the threshold issue of petitioners standing. Petitioners allege that as owners of establishments offering "wash-up" rates, their business is being unlawfully interfered with by the Ordinance. However, petitioners also allege that the equal protection rights of their clients are also being interfered with. Thus, the crux of the matter is whether or not these establishments have the requisite standing to plead for protection of their patrons' equal protection rights. Standing or locus standi is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case. More importantly, the doctrine of standing is 26 built on the principle of separation of powers, sparing as it does unnecessary interference or invalidation by the judicial branch of the actions rendered by its co-equal branches of government. 27 The requirement of standing is a core component of the judicial system derived directly from the Constitution. The constitutional component of standing doctrine incorporates concepts which concededly are not susceptible of precise 28 definition. In this jurisdiction, the extancy of "a direct and personal interest" presents the most obvious cause, as 29 well as the standard test for a petitioner's standing. In a similar vein, the United States Supreme Court reviewed and elaborated on the meaning of the three constitutional standing requirements of injury, causation, and redressability 30 in Allen v. Wright. Nonetheless, the general rules on standing admit of several exceptions such as the overbreadth doctrine, taxpayer 31 suits, third party standing and, especially in the Philippines, the doctrine of transcendental importance. For this particular set of facts, the concept of third party standing as an exception and the overbreadth doctrine are 32 appropriate. In Powers v. Ohio, the United States Supreme Court wrote that: "We have recognized the right of litigants to bring actions on behalf of third parties, provided three important criteria are satisfied: the litigant must have suffered an injury-in-fact, thus giving him or her a "sufficiently concrete interest" in the outcome of the issue in dispute; the litigant must have a close relation to the third party; and there must exist some hindrance to the third 33 party's ability to protect his or her own interests." Herein, it is clear that the business interests of the petitioners are likewise injured by the Ordinance. They rely on the patronage of their customers for their continued viability which appears to be threatened by the enforcement of the Ordinance. The relative silence in constitutional litigation of such special interest groups in our nation such as the American Civil Liberties Union in the United States may also be 34 construed as a hindrance for customers to bring suit. American jurisprudence is replete with examples where parties-in-interest were allowed standing to advocate or invoke the fundamental due process or equal protection claims of other persons or classes of persons injured by 35 state action. In Griswold v. Connecticut, the United States Supreme Court held that physicians had standing to challenge a reproductive health statute that would penalize them as accessories as well as to plead the constitutional protections available to their patients. The Court held that: "The rights of husband and wife, pressed here, are likely to be diluted or adversely affected unless those rights are 36 considered in a suit involving those who have this kind of confidential relation to them." 37 An even more analogous example may be found in Craig v. Boren, wherein the United States Supreme Court held that a licensed beverage vendor has standing to raise the equal protection claim of a male customer challenging a statutory scheme prohibiting the sale of beer to males under the age of 21 and to females under the age of 18. The United States High Court explained that the vendors had standing "by acting as advocates of the rights of third parties 38 who seek access to their market or function." Assuming arguendo that petitioners do not have a relationship with their patrons for the former to assert the rights of the latter, the overbreadth doctrine comes into play. In overbreadth analysis, challengers to government action are in effect permitted to raise the rights of third parties. Generally applied to statutes infringing on the freedom of speech, 39 the overbreadth doctrine applies when a statute needlessly restrains even constitutionally guaranteed rights. In this case, the petitioners claim that the Ordinance makes a sweeping intrusion into the right to liberty of their clients. We can see that based on the allegations in the petition, the Ordinance suffers from overbreadth.

We thus recognize that the petitioners have a right to assert the constitutional rights of their clients to patronize their establishments for a "wash-rate" time frame. III. To students of jurisprudence, the facts of this case will recall to mind not only the recent City of Manila ruling, but our 40 1967 decision in Ermita-Malate Hotel and Motel Operations Association, Inc., v. Hon. City Mayor of Manila. ErmitaMalate concerned the City ordinance requiring patrons to fill up a prescribed form stating personal information such as name, gender, nationality, age, address and occupation before they could be admitted to a motel, hotel or lodging house. This earlier ordinance was precisely enacted to minimize certain practices deemed harmful to public morals. A purpose similar to the annulled ordinance in City of Manila which sought a blanket ban on motels, inns and similar establishments in the Ermita-Malate area. However, the constitutionality of the ordinance in Ermita-Malate was sustained by the Court. The common thread that runs through those decisions and the case at bar goes beyond the singularity of the localities covered under the respective ordinances. All three ordinances were enacted with a view of regulating public morals including particular illicit activity in transient lodging establishments. This could be described as the middle case, wherein there is no wholesale ban on motels and hotels but the services offered by these establishments have been severely restricted. At its core, this is another case about the extent to which the State can intrude into and regulate the lives of its citizens. The test of a valid ordinance is well established. A long line of decisions including City of Manila has held that for an ordinance to be valid, it must not only be within the corporate powers of the local government unit to enact and pass according to the procedure prescribed by law, it must also conform to the following substantive requirements: (1) must not contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and consistent with public policy; and 41 (6) must not be unreasonable. The Ordinance prohibits two specific and distinct business practices, namely wash rate admissions and renting out a room more than twice a day. The ban is evidently sought to be rooted in the police power as conferred on local government units by the Local Government Code through such implements as the general welfare clause. A. Police power, while incapable of an exact definition, has been purposely veiled in general terms to underscore its comprehensiveness to meet all exigencies and provide enough room for an efficient and flexible response as the 42 conditions warrant. Police power is based upon the concept of necessity of the State and its corresponding right to 43 protect itself and its people. Police power has been used as justification for numerous and varied actions by the 44 45 46 47 State. These range from the regulation of dance halls, movie theaters, gas stations and cockpits. The awesome scope of police power is best demonstrated by the fact that in its hundred or so years of presence in our nations legal system, its use has rarely been denied. The apparent goal of the Ordinance is to minimize if not eliminate the use of the covered establishments for illicit sex, prostitution, drug use and alike. These goals, by themselves, are unimpeachable and certainly fall within the ambit of the police power of the State. Yet the desirability of these ends do not sanctify any and all means for their achievement. Those means must align with the Constitution, and our emerging sophisticated analysis of its guarantees to the people. The Bill of Rights stands as a rebuke to the seductive theory of Macchiavelli, and, sometimes even, the political majorities animated by his cynicism. Even as we design the precedents that establish the framework for analysis of due process or equal protection questions, the courts are naturally inhibited by a due deference to the co-equal branches of government as they exercise their political functions. But when we are compelled to nullify executive or legislative actions, yet another form of caution emerges. If the Court were animated by the same passing fancies or turbulent emotions that motivate many political decisions, judicial integrity is compromised by any perception that the judiciary is merely the third political branch of government. We derive our respect and good standing in the annals of history by acting as judicious and neutral arbiters of the rule of law, and there is no surer way to that end than through the development of rigorous and sophisticated legal standards through which the courts analyze the most fundamental and far-reaching constitutional questions of the day. B. The primary constitutional question that confronts us is one of due process, as guaranteed under Section 1, Article III 48 of the Constitution. Due process evades a precise definition. The purpose of the guaranty is to prevent arbitrary governmental encroachment against the life, liberty and property of individuals. The due process guaranty serves as a protection against arbitrary regulation or seizure. Even corporations and partnerships are protected by the guaranty insofar as their property is concerned. The due process guaranty has traditionally been interpreted as imposing two related but distinct restrictions on government, "procedural due process" and "substantive due process." Procedural due process refers to the 49 procedures that the government must follow before it deprives a person of life, liberty, or property. Procedural due process concerns itself with government action adhering to the established process when it makes an intrusion into the private sphere. Examples range from the form of notice given to the level of formality of a hearing. If due process were confined solely to its procedural aspects, there would arise absurd situation of arbitrary government action, provided the proper formalities are followed. Substantive due process completes the protection

envisioned by the due process clause. It inquires whether the government has sufficient justification for depriving a 50 person of life, liberty, or property. The question of substantive due process, moreso than most other fields of law, has reflected dynamism in progressive legal thought tied with the expanded acceptance of fundamental freedoms. Police power, traditionally awesome as it may be, is now confronted with a more rigorous level of analysis before it can be upheld. The vitality though of constitutional due process has not been predicated on the frequency with which it has been utilized to achieve a liberal result for, after all, the libertarian ends should sometimes yield to the prerogatives of the State. Instead, the due process clause has acquired potency because of the sophisticated methodology that has emerged to determine the proper metes and bounds for its application. C. The general test of the validity of an ordinance on substantive due process grounds is best tested when assessed 51 with the evolved footnote 4 test laid down by the U.S. Supreme Court in U.S. v. Carolene Products. Footnote 4 of the Carolene Products case acknowledged that the judiciary would defer to the legislature unless there is a 52 discrimination against a "discrete and insular" minority or infringement of a "fundamental right." Consequently, two standards of judicial review were established: strict scrutiny for laws dealing with freedom of the mind or restricting the political process, and the rational basis standard of review for economic legislation. A third standard, denominated as heightened or immediate scrutiny, was later adopted by the U.S. Supreme Court for 53 54 evaluating classifications based on gender and legitimacy. Immediate scrutiny was adopted by the U.S. Supreme 55 56 Court in Craig, after the Court declined to do so in Reed v. Reed. While the test may have first been articulated in equal protection analysis, it has in the United States since been applied in all substantive due process cases as well. 57 We ourselves have often applied the rational basis test mainly in analysis of equal protection challenges. Using the rational basis examination, laws or ordinances are upheld if they rationally further a legitimate governmental 58 interest. Under intermediate review, governmental interest is extensively examined and the availability of less 59 restrictive measures is considered. Applying strict scrutiny, the focus is on the presence of compelling, rather than substantial, governmental interest and on the absence of less restrictive means for achieving that interest. In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard for determining the quality 60 and the amount of governmental interest brought to justify the regulation of fundamental freedoms. Strict scrutiny is used today to test the validity of laws dealing with the regulation of speech, gender, or race as well as other 61 fundamental rights as expansion from its earlier applications to equal protection. The United States Supreme Court 62 63 has expanded the scope of strict scrutiny to protect fundamental rights such as suffrage, judicial access and 64 interstate travel. If we were to take the myopic view that an Ordinance should be analyzed strictly as to its effect only on the petitioners at bar, then it would seem that the only restraint imposed by the law which we are capacitated to act upon is the injury to property sustained by the petitioners, an injury that would warrant the application of the most deferential standard the rational basis test. Yet as earlier stated, we recognize the capacity of the petitioners to invoke as well the constitutional rights of their patrons those persons who would be deprived of availing short time access or wash-up rates to the lodging establishments in question. Viewed cynically, one might say that the infringed rights of these customers were are trivial since they seem shorn of political consequence. Concededly, these are not the sort of cherished rights that, when proscribed, would impel the people to tear up their cedulas. Still, the Bill of Rights does not shelter gravitas alone. Indeed, it is those "trivial" yet fundamental freedoms which the people reflexively exercise any day without the impairing awareness of their constitutional consequence that accurately reflect the degree of liberty enjoyed by the people. Liberty, as integrally incorporated as a fundamental right in the Constitution, is not a Ten Commandments-style enumeration of what may or what may not be done; but rather an atmosphere of freedom where the people do not feel labored under a Big Brother presence as they interact with each other, their society and nature, in a manner innately understood by them as inherent, without doing harm or injury to others. D. The rights at stake herein fall within the same fundamental rights to liberty which we upheld in City of Manila v. Hon. Laguio, Jr. We expounded on that most primordial of rights, thus: Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the right to exist and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the facilities with which he has been 65 endowed by his Creator, subject only to such restraint as are necessary for the common welfare."[ ] In accordance with this case, the rights of the citizen to be free to use his faculties in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; and to pursue any avocation are all deemed embraced in the concept of 66 liberty.[ ] The U.S. Supreme Court in the case of Roth v. Board of Regents, sought to clarify the meaning of "liberty." It said: While the Court has not attempted to define with exactness the liberty . . . guaranteed [by the Fifth and Fourteenth Amendments], the term denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those

privileges long recognized . . . as essential to the orderly pursuit of happiness by free men. In a Constitution for a free 67 people, there can be no doubt that the meaning of "liberty" must be broad indeed. [Citations omitted] It cannot be denied that the primary animus behind the ordinance is the curtailment of sexual behavior. The City asserts before this Court that the subject establishments "have gained notoriety as venue of prostitution, adulter y and fornications in Manila since they provide the necessary atmosphere for clandestine entry, presence and exit and 68 thus became the ideal haven for prostitutes and thrill -seekers." Whether or not this depiction of a mise-en-scene of vice is accurate, it cannot be denied that legitimate sexual behavior among willing married or consenting single adults 69 which is constitutionally protected will be curtailed as well, as it was in the City of Manila case. Our holding therein retains significance for our purposes: The concept of liberty compels respect for the individual whose claim to privacy and interference demands respect. As the case of Morfe v. Mutuc, borrowing the words of Laski, so very aptly stated: Man is one among many, obstinately refusing reduction to unity. His separateness, his isolation, are indefeasible; indeed, they are so fundamental that they are the basis on which his civic obligations are built. He cannot abandon the consequences of his isolation, which are, broadly speaking, that his experience is private, and the will built out of that experience personal to himself. If he surrenders his will to others, he surrenders himself. If his will is set by the will of others, he ceases to be a master of himself. I cannot believe that a man no longer a master of himself is in any real sense free. Indeed, the right to privacy as a constitutional right was recognized in Morfe, the invasion of which should be justified by a compelling state interest. Morfe accorded recognition to the right to privacy independently of its identification with liberty; in itself it is fully deserving of constitutional protection. Governmental powers should stop short of certain 70 intrusions into the personal life of the citizen. We cannot discount other legitimate activities which the Ordinance would proscribe or impair. There are very legitimate uses for a wash rate or renting the room out for more than twice a day. Entire families are known to choose pass the time in a motel or hotel whilst the power is momentarily out in their homes. In transit passengers who wish to wash up and rest between trips have a legitimate purpose for abbreviated stays in motels or hotels. Indeed any person or groups of persons in need of comfortable private spaces for a span of a few hours with purposes other than having sex or using illegal drugs can legitimately look to staying in a motel or hotel as a convenient alternative. E. That the Ordinance prevents the lawful uses of a wash rate depriving patrons of a product and the petitioners of lucrative business ties in with another constitutional requisite for the legitimacy of the Ordinance as a police power measure. It must appear that the interests of the public generally, as distinguished from those of a particular class, require an interference with private rights and the means must be reasonably necessary for the accomplishment of 71 the purpose and not unduly oppressive of private rights. It must also be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work. More importantly, a reasonable relation must exist between the purposes of the measure and the means employed for its accomplishment, for even under the guise of protecting the public interest, personal rights and those pertaining to private property will not be permitted to 72 be arbitrarily invaded. Lacking a concurrence of these requisites, the police measure shall be struck down as an arbitrary intrusion into private rights. As held in Morfe v. Mutuc, the exercise of police power is subject to judicial review when life, liberty or 73 property is affected. However, this is not in any way meant to take it away from the vastness of State police power 74 whose exercise enjoys the presumption of validity. Similar to the Comelec resolution requiring newspapers to donate advertising space to candidates, this Ordinance is 75 a blunt and heavy instrument. The Ordinance makes no distinction between places frequented by patrons engaged in illicit activities and patrons engaged in legitimate actions. Thus it prevents legitimate use of places where illicit activities are rare or even unheard of. A plain reading of section 3 of the Ordinance shows it makes no classification of places of lodging, thus deems them all susceptible to illicit patronage and subject them without exception to the unjustified prohibition. 76 The Court has professed its deep sentiment and tenderness of the Ermita-Malate area, its longtime home, and it is skeptical of those who wish to depict our capital city the Pearl of the Orient as a modern-day Sodom or Gomorrah for the Third World set. Those still steeped in Nick Joaquin-dreams of the grandeur of Old Manila will have to accept that Manila like all evolving big cities, will have its problems. Urban decay is a fact of mega cities such as Manila, and vice is a common problem confronted by the modern metropolis wherever in the world. The solution to such perceived decay is not to prevent legitimate businesses from offering a legitimate product. Rather, cities revive themselves by offering incentives for new businesses to sprout up thus attracting the dynamism of individuals that would bring a new grandeur to Manila. The behavior which the Ordinance seeks to curtail is in fact already prohibited and could in fact be diminished simply by applying existing laws. Less intrusive measures such as curbing the proliferation of prostitutes and drug dealers through active police work would be more effective in easing the situation. So would the strict enforcement of existing laws and regulations penalizing prostitution and drug use. These measures would have minimal intrusion on the businesses of the petitioners and other legitimate merchants. Further, it is apparent that the Ordinance can easily be circumvented by merely paying the whole day rate without any hindrance to those engaged in illicit activities.

Moreover, drug dealers and prostitutes can in fact collect "wash rates" from their clientele by charging their customers a portion of the rent for motel rooms and even apartments. IV. We reiterate that individual rights may be adversely affected only to the extent that may fairly be required by the legitimate demands of public interest or public welfare. The State is a leviathan that must be restrained from needlessly intruding into the lives of its citizens. However well-intentioned the Ordinance may be, it is in effect an arbitrary and whimsical intrusion into the rights of the establishments as well as their patrons. The Ordinance needlessly restrains the operation of the businesses of the petitioners as well as restricting the rights of their patrons without sufficient justification. The Ordinance rashly equates wash rates and renting out a room more than twice a day with immorality without accommodating innocuous intentions. The promotion of public welfare and a sense of morality among citizens deserves the full endorsement of the judiciary 77 provided that such measures do not trample rights this Court is sworn to protect. The notion that the promotion of 78 public morality is a function of the State is as old as Aristotle. The advancement of moral relativism as a school of philosophy does not de-legitimize the role of morality in law, even if it may foster wider debate on which particular behavior to penalize. It is conceivable that a society with relatively little shared morality among its citizens could be functional so long as the pursuit of sharply variant moral perspectives yields an adequate accommodation of different 79 interests. To be candid about it, the oft-quoted American maxim that "you cannot legislate morality" is ultimately illegitimate as a matter of law, since as explained by Calabresi, that phrase is more accurately interpreted as meaning that efforts to 80 legislate morality will fail if they are widely at variance with public attitudes about right and wrong. Our penal laws, for one, are founded on age-old moral traditions, and as long as there are widely accepted distinctions between right and wrong, they will remain so oriented. Yet the continuing progression of the human story has seen not only the acceptance of the right-wrong distinction, but also the advent of fundamental liberties as the key to the enjoyment of life to the fullest. Our democracy is distinguished from non-free societies not with any more extensive elaboration on our part of what is moral and immoral, but from our recognition that the individual liberty to make the choices in our lives is innate, and protected by the State. Independent and fair-minded judges themselves are under a moral duty to uphold the Constitution as the embodiment of the rule of law, by reason of their expression of consent to do so when they take the oath of office, 81 and because they are entrusted by the people to uphold the law. Even as the implementation of moral norms remains an indispensable complement to governance, that prerogative is hardly absolute, especially in the face of the norms of due process of liberty. And while the tension may often be left to the courts to relieve, it is possible for the government to avoid the constitutional conflict by employing more judicious, less drastic means to promote morality. WHEREFORE, the Petition is GRANTED. The Decision of the Court of Appeals is REVERSED, and the Decision of the Regional Trial Court of Manila, Branch 9, is REINSTATED. Ordinance No. 7774 is hereby declared UNCONSTITUTIONAL. No pronouncement as to costs. SO ORDERED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 152318 April 16, 2009 DEUTSCHE GESELLSCHAFT FR TECHNISCHE ZUSAMMENARBEIT, also known as GERMAN AGENCY FOR TECHNICAL COOPERATION, (GTZ) HANS PETER PAULENZ and ANNE NICOLAY, Petitioners, vs. HON. COURT OF APPEALS, HON. ARIEL CADIENTE SANTOS, Labor Arbiter of the Arbitration Branch, National Labor Relations Commission, and BERNADETTE CARMELLA MAGTAAS, CAROLINA DIONCO, CHRISTOPHER RAMOS, MELVIN DELA PAZ, RANDY TAMAYO and EDGARDO RAMILLO, Respondents. DECISION TINGA, J.: On 7 September 1971, the governments of the Federal Republic of Germany and the Republic of the Philippines ratified an Agreement concerning Technical Co-operation (Agreement) in Bonn, capital of what was then West Germany. The Agreement affirmed the countries "common interest in promoting the technical and economic development of their States, and recogni[zed] the benefits to be derived by both States from closer technical cooperation," and allowed for the conclusion of "arrangements concerning individual projects of technical co1 operation." While the Agreement provided for a limited term of effectivity of five (5) years, it nonetheless was stated that "[t]he Agreement shall be tacitly extended for successive periods of one year unless either of the two Contracting Parties denounces it in writing three months prior to its expiry," and that even upon the Agreements expiry, its 2 provisions would "continue to apply to any projects agreed upon x x x until their completion." On 10 December 1999, the Philippine government, through then Foreign Affairs Secretary Domingo Siazon, and the German government, agreed to an Arrangement in furtherance of the 1971 Agreement. This Arrangement affirmed

the common commitment of both governments to promote jointly a project called, Social Health Insurance Networking and Empowerment (SHINE), which was designed to "enable Philippine familiesespecially poor onesto 3 maintain their health and secure health care of sustainable quality." It appears that SHINE had already been in existence even prior to the effectivity of the Arrangement, though the record does not indicate when exactly SHINE was constituted. Nonetheless, the Arrangement stated the various obligations of the Filipino and German governments. The relevant provisions of the Arrangement are reproduced as follows: 3. The Government of the Federal Republic of Germany shall make the following contributions to the project. It shall (a) second - one expert in health economy, insurance and health systems for up to 48 expert/months, - one expert in system development for up to 10 expert/months - short-term experts to deal with special tasks for a total of up to 18 expert/months, - project assistants/guest students as required, who shall work on the project as part of their basic and further training and assume specific project tasks under the separately financed junior staff promotion programme of the Deutsche Gesellschaft fr Technische Zusammenarbeit (GTZ); (b) provide in situ - short-term experts to deal with diverse special tasks for a total of up to 27 expert/months, - five local experts in health economy, health insurance, community health systems, information technology, information systems, training and community mobilization for a total of up to 240 expert/months, - local and auxiliary personnel for a total of up to 120 months; (c) supply inputs, in particular - two cross-country vehicles, - ten computers with accessories, - office furnishings and equipment up to a total value of DM 310,000 (three hundred and ten thousand Deutsche Mark); (c) meet - the cost of accommodation for the seconded experts and their families in so far as this cost is not met by the seconded experts themselves, - the cost of official travel by the experts referred to in sub-paragraph (a) above within and outside the Republic of the Philippines, - the cost of seminars and courses, - the cost of transport and insurance to the project site of inputs to be supplied pursuant to subparagraph (c) above, excluding the charges and storage fees referred to in paragraph 4(d) below, - a proportion of the operating and administrative costs; xxx 4. The Government of the Republic of the Philippines shall make the following contributions to the project: It shall (a) provide the necessary Philippine experts for the project, in particular one project coordinator in the Philippine Health Insurance Corporation (Philhealth), at least three further experts and a sufficient number of administrative and auxiliary personnel, as well as health personnel in the pilot provinces and in the other project partners, in particular one responsible expert for each pilot province and for each association representing the various target groups, - release suitably qualified experts from their duties for attendance at the envisaged basic and further training activities; it shall only nominate such candidates as have given an undertaking to work on the project for at least five years after completing their training and shall ensure that these Philippine experts receive appropriate remuneration, - ensure that the project field offices have sufficient expendables, - make available the land and buildings required for the project; (b) assume an increasing proportion of the running and operating costs of the project; (c) afford the seconded experts any assistance they may require in carrying out the tasks assigned to them and place at their disposal all necessary records and documents; (d) guarantee that - the project is provided with an itemized budget of its own in order to ensure smooth continuation of the project. - the necessary legal and administrative framework is created for the project, - the project is coordinated in close cooperation with other national and international agencies relevant to implementation, - the inputs supplied for the project on behalf of the Government of the Federal Republic of Germany are exempted from the cost of licenses, harbour dues, import and export duties and other public charges and fees, as well as storage fees, or that any costs thereof are met, and that they

are cleared by customs without delay. The aforementioned exemptions shall, at the request of the implementing agencies also apply to inputs procured in the Republic of the Philippines, - the tasks of the seconded experts are taken over as soon as possible by Philippine experts, - examinations passed by Philippine nationals pursuant to this Arrangement are recognized in accordance with their respective standards and that the persons concerned are afforded such opportunities with regard to careers, appointments and advancement as are commensurate with 4 their training. In the arraignment, both governments likewise named their respective implementing organizations for SHINE. The Philippines designated the Department of Health (DOH) and the Philippine Health Insurance Corporation (Philhealth) with the implementation of SHINE. For their part, the German government "charge[d] the Deustche Gesellschaft fr 5 6 7 Technische Zusammenarbeit[ ] (GTZ[ ]) GmbH, Eschborn, with the implementation of its contributions." Private respondents were engaged as contract employees hired by GTZ to work for SHINE on various dates between December of 1998 to September of 1999. Bernadette Carmela Magtaas was hired as an "information systems 8 9 manager and project officer of SHINE;" Carolina Dionco as a "Project Assistant of SHINE;" Christopher Ramos as 10 "a project assistant and liason personnel of NHI related SHINE activities by GTZ;" Melvin Dela Paz and Randy 11 12 Tamayo as programmers; and Edgardo Ramilo as "driver, messenger and multipurpose service man." The employment contracts of all six private respondents all specified Dr. Rainer Tollkotter, identified as an adviser of GTZ, as the "employer." At the same time, all the contracts commonly provided that "[i]t is mutually agreed and understood that [Dr. Tollkotter, as employer] is a seconded GTZ expert who is hiring the Employee on behalf of GTZ and for a Philippine-German bilateral project named Social Health InsuranceNetworking and Empowerment (SHINE) which 13 will end at a given time." In September of 1999, Anne Nicolay (Nicolay), a Belgian national, assumed the post of SHINE Project Manager. Disagreements eventually arose between Nicolay and private respondents in matters such as proposed salary adjustments, and the course Nicolay was taking in the implementation of SHINE different from her predecessors. The 14 dispute culminated in a letter dated 8 June 2000, signed by the private respondents, addressed to Nicolay, and copies furnished officials of the DOH, Philheath, and the director of the Manila office of GTZ. The letter raised several issues which private respondents claim had been brought up several times in the past, but have not been given appropriate response. It was claimed that SHINE under Nicolay had veered away from its original purpose to facilitate the development of social health insurance by shoring up the national health insurance program and strengthening local initiatives, as Nicolay had refused to support local partners and new initiatives on the premise that community and local government unit schemes were not sustainable a philosophy that supposedly betrayed Nicolays lack of understanding of the purpose of the project. Private respondents further alleged that as a result of Nicolays "new thrust, resources have been used inappropriately;" that the new management style was "not congruent with the original goals of the project;" that Nicolay herself suffered from "cultural insensitivity" that consequently failed to sustain healthy relations with SHINEs partners and staff. The letter ended with these ominous words: The issues that we [the private respondents] have stated here are very crucial to us in working for the project. We could no longer find any reason to stay with the project unless ALL of these issues be addressed immediately and 15 appropriately. In response, Nicolay wrote each of the private respondents a letter dated 21 June 2000, all similarly worded except for their respective addressees. She informed private respondents that the "projects orientations and evolution" were decided in consensus with partner institutions, Philhealth and the DOH, and thus no longer subject to modifications. More pertinently, she stated: You have firmly and unequivocally stated in the last paragraph of your 8th June 2000 letter that you and the five other staff "could no longer find any reason to stay with the project unless ALL of these issues be addressed immediately and appropriately." Under the foregoing premises and circumstances, it is now imperative that I am to accept your 16 resignation, which I expect to receive as soon as possible. Taken aback, private respondents replied with a common letter, clarifying that their earlier letter was not intended as a resignation letter, but one that merely intended to raise attention to what they perceived as vital 17 issues. Negotiations ensued between private respondents and Nicolay, but for naught. Each of the private respondents received a letter from Nicolay dated 11 July 2000, informing them of the pre-termination of their contracts of employment on the grounds of "serious and gross insubordination, among others, resulting to loss of 18 confidence and trust." On 21 August 2000, the private respondents filed a complaint for illegal dismissal with the NLRC. Named as respondents therein where GTZ, the Director of its Manila office Hans Peter Paulenz, its Assistant Project Manager Christian Jahn, and Nicolay. On 25 October 2005, GTZ, through counsel, filed a Motion to Dismiss, on the ground that the Labor Arbiter had no jurisdiction over the case, as its acts were undertaken in the discharge of the governmental functions and sovereign acts of the Government of the Federal Republic of Germany. This was opposed by private respondents with the arguments that GTZ had failed to secure a certification that it was immune from suit from the Department of Foreign Affairs, and that it was GTZ and not the German government which had implemented the SHINE Project and entered into the contracts of employment.

On 27 November 2000, the Labor Arbiter issued an Order denying the Motion to Dismiss. The Order cited, among others, that GTZ was a private corporation which entered into an employment contract; and that GTZ had failed to secure from the DFA a certification as to its diplomatic status. On 7 February 2001, GTZ filed with the Labor Arbiter a "Reiterating Motion to Dismiss," again praying that the Motion to Dismiss be granted on the jurisdictional ground, and reprising the arguments for dismissal it had earlier 20 raised. No action was taken by the Labor Arbiter on this new motion. Instead, on 15 October 2001, the Labor Arbiter 21 rendered a Decision granting the complaint for illegal dismissal. The Decision concluded that respondents were 22 dismissed without lawful cause, there being "a total lack of due process both substantive and procedural [ sic]." GTZ was faulted for failing to observe the notice requirements in the labor law. The Decision likewise proceeded from the premise that GTZ had treated the letter dated 8 June 2000 as a resignation letter, and devoted some focus in debunking this theory. The Decision initially offered that it "need not discuss the jurisdictional aspect considering that the same had already 23 been lengthily discussed in the Order de[n]ying respondents Motion to Dismiss." Nonetheless, it proceeded to discuss the jurisdictional aspect, in this wise: Under pain of being repetitious, the undersigned Labor Arbiter has jurisdiction to entertain the complaint on the following grounds: Firstly, under the employment contract entered into between complainants and respondents, specifically Section 10 thereof, it provides that "contract partners agree that his contract shall be subject to the LAWS of the jurisdiction of the locality in which the service is performed." Secondly, respondent having entered into contract, they can no longer invoke the sovereignty of the Federal Republic of Germany. Lastly, it is imperative to be immune from suit, respondents should have secured from the Department of Foreign Affairs a certification of respondents diplomatic status and entitlement to diplomatic privileges including immunity from suits. Having failed in this regard, respondents cannot escape liability from the 24 shelter of sovereign immunity.[sic] Notably, GTZ did not file a motion for reconsideration to the La bor Arbiters Decision or elevate said decision for appeal to the NLRC. Instead, GTZ opted to assail the decision by way of a special civil action for 25 certiorari filed with the Court of Appeals. On 10 December 2001, the Court of Appeals promulgated a 26 Resolution dismissing GTZs petition, finding that "judicial recourse at this stage of the case is uncalled 27 for[,] [t]he appropriate remedy of the petitioners [being] an appeal to the NLRC x x x." A motion for 28 reconsideration to this Resolution proved fruitless for GTZ. Thus, the present petition for review under Rule 45, assailing the decision and resolutions of the Court of Appeals and of the Labor Arbiter. GTZs arguments center on whether the Court of Appeals could have entertained its petition for certiorari despite its not having undertaken an appeal before the NLRC; and whether the complaint for illegal dismissal should have been dismissed for lack of jurisdiction on account of GTZs insistence that it enjoys immunity from suit. No special arguments are directed with respect to petitioners Hans Peter Paulenz and Anne Nicolay, respectively the then Director and the then Project Manager of GTZ in the Philippines; so we have to presume that the arguments raised in behalf of GTZs alleged immunity from suit extend to them as well. The Court required the Office of the Solicitor General (OSG) to file a Comment on the petition. In its Comment dated 7 November 2005, the OSG took the side of GTZ, with the prayer that the petition be granted on the ground that GTZ was immune from suit, citing in particular its assigned functions in implementing the SHINE program a joint undertaking of the Philippine and German governments which was neither proprietary nor commercial in nature. The Court of Appeals had premised the dismissal of GTZs petition on its procedural misstep in bypassing an appeal to NLRC and challenging the Labor Arbiters Decision directly with the appellate court by way of a Rule 65 petition. In dismissing the petition, the 29 Court of Appeals relied on our ruling in Air Service Cooperative v. Court of Appeals. The central issue in that case was whether a decision of a Labor Arbiter rendered without jurisdiction over the subject matter may be annulled in a petition before a Regional Trial Court. That case may be differentiated from the present case, since the Regional Trial Court does not have original or appellate jurisdiction to review a decision rendered by a Labor Arbiter. In contrast, there is no doubt, as affirmed by jurisprudence, that the Court of Appeals has jurisdiction to review, by way of its original certiorari jurisdiction, decisions ruling on complaints for illegal dismissal. Nonetheless, the Court of Appeals is correct in pronouncing the general rule that the proper recourse from the decision of the Labor Arbiter is to first appeal the same to the NLRC. Air Services is in fact clearly detrimental to petitioners position in one regard. The Court therein noted that on account of the failure to correctly appeal the 30 decision of the Labor Arbiter to the NLRC, such judgment consequently became final and executory. GTZ goes as far as to "request" that the Court re-examine Air Services, a suggestion that is needlessly improvident under the circumstances. Air Services affirms doctrines grounded in sound procedural rules that have allowed for the considered and orderly disposition of labor cases. 31 The OSG points out, citing Heirs of Mayor Nemencio Galvez v. Court of Appeals, that even when appeal is available, the Court has nonetheless allowed a writ of certiorari when the orders of the lower court were issued either in excess of or without jurisdiction. Indeed, the Court has ruled before that the failure to employ available intermediate recourses, such as a motion for reconsideration, is not a fatal infirmity if the ruling assailed is a patent nullity. This

19

approach suggested by the OSG allows the Court to inquire directly into what is the main issue whether GTZ enjoys immunity from suit. The arguments raised by GTZ and the OSG are rooted in several indisputable facts. The SHINE project was implemented pursuant to the bilateral agreements between the Philippine and German governments. GTZ was tasked, under the 1991 agreement, with the implementation of the contributions of the German government. The activities performed by GTZ pertaining to the SHINE project are governmental in nature, related as they are to the promotion of health insurance in the Philippines. The fact that GTZ entered into employment contracts with the private respondents did not disqualify it from invoking immunity from suit, as held in cases such as Holy See v. 32 Rosario, Jr., which set forth what remains valid doctrine: Certainly, the mere entering into a contract by a foreign state with a private party cannot be the ultimate test. Such an act can only be the start of the inquiry. The logical question is whether the foreign state is engaged in the activity in the regular course of business. If the foreign state is not engaged regularly in a business or trade, the particular act or transaction must then be tested by its nature. If the act is in pursuit of a sovereign activity, or an incident thereof, then 33 it is an act jure imperii, especially when it is not undertaken for gain or profit. Beyond dispute is the tenability of the comment points raised by GTZ and the OSG that GTZ was not performing proprietary functions notwithstanding its entry into the particular employment contracts. Yet there is an equally fundamental premise which GTZ and the OSG fail to address, namely: Is GTZ, by conception, able to enjoy the Federal Republics immunity from suit? The principle of state immunity from suit, whether a local state or a foreign state, is reflected in Section 9, Article XVI of the Constitution, which states that "the State may not be sued without its consent." Who or what consists of "the State"? For one, the doctrine is available to foreign States insofar as they are sought to be sued in the courts of the 34 local State, necessary as it is to avoid "unduly vexing the peace of nations." If the instant suit had been brought directly against the Federal Republic of Germany, there would be no doubt that it is a suit brought against a State, and the only necessary inquiry is whether said State had consented to be sued. However, the present suit was brought against GTZ. It is necessary for us to understand what precisely are the parameters of the legal personality of GTZ. Counsel for GTZ characterizes GTZ as "the implementing agency of the Government of the Federal Republic of Germany," a depiction similarly adopted by the OSG. Assuming that characterization is correct, it does not automatically invest GTZ with the ability to invoke State immunity from suit. The distinction lies in whether the agency is incorporated or unincorporated. The following lucid discussion from Justice Isagani Cruz is pertinent: Where suit is filed not against the government itself or its officials but against one of its entities, it must be ascertained whether or not the State, as the principal that may ultimately be held liable, has given its consent to be sued. This ascertainment will depend in the first instance on whether the government agency impleaded is incorporated or unincorporated. An incorporated agency has a charter of its own that invests it with a separate juridical personality, like the Social Security System, the University of the Philippines, and the City of Manila. By contrast, the unincorporated agency is so called because it has no separate juridical personality but is merged in the general machinery of the government, like the Department of Justice, the Bureau of Mines and the Government Printing Office. If the agency is incorporated, the test of its suability is found in its charter. The simple rule is that it is suable if its charter says so, and this is true regardless of the functions it is performing. Municipal corporations, for example, like provinces and cities, are agencies of the State when they are engaged in governmental functions and therefore should enjoy the sovereign immunity from suit. Nevertheless, they are subject to suit even in the performance of such 35 functions because their charter provides that they can sue and be sued. 36 State immunity from suit may be waived by general or special law. The special law can take the form of the original charter of the incorporated government agency. Jurisprudence is replete with examples of incorporated government agencies which were ruled not entitled to invoke immunity from suit, owing to provisions in their 37 charters manifesting their consent to be sued. These include the National Irrigation Administration, the former 38 39 40 Central Bank, and the National Power Corporation. In SSS v. Court of Appeals, the Court through Justice Melencio-Herrera explained that by virtue of an express provision in its charter allowing it to sue and be sued, the Social Security System did not enjoy immunity from suit: We come now to the amendability of the SSS to judicial action and legal responsibility for its acts. To our minds, there should be no question on this score considering that the SSS is a juridical entity with a personality of its own. It has corporate powers separate and distinct from the Government. SSS' own organic act specifically provides that it can sue and be sued in Court. These words "sue and be sued" embrace all civil process incident to a legal action. So that, even assuming that the SSS, as it claims, enjoys immunity from suit as an entity performing governmental functions, by virtue of the explicit provision of the aforecited enabling law, the Government must be deemed to have waived immunity in respect of the SSS, although it does not thereby concede its liability. That statutory law has given to the private citizen a remedy for the enforcement and protection of his rights. The SSS thereby has been required to submit to the jurisdiction of the Courts, subject to its right to interpose any lawful defense. Whether the SSS performs governmental or proprietary functions thus becomes unnecessary to belabor. For by that waiver, a private citizen may bring a suit against it for varied objectives, such as, in this case, to obtain compensation in damages arising from contract, and even for tort.

A recent case squarely in point anent the principle, involving the National Power Corporation, is that of Rayo v. Court of First Instance of Bulacan, 110 SCRA 457 (1981), wherein this Court, speaking through Mr. Justice Vicente Abad Santos, ruled: "It is not necessary to write an extended dissertation on whether or not the NPC performs a governmental function with respect to the management and operation of the Angat Dam. It is sufficient to say that the government has organized a private corporation, put money in it and has allowed it to sue and be sued in any court under its charter. (R.A. No. 6395, Sec. 3[d]). As a government, owned and controlled corporation, it has a personality of its own, distinct and separate from that of the Government. Moreover, the charter provision that the NPC can 'sue and be sued in any court' is without qualification on the cause of action and accordingly it can include a tort claim such as the one 41 instituted by the petitioners." It is useful to note that on the part of the Philippine government, it had designated two entities, the Department of Health and the Philippine Health Insurance Corporation (PHIC), as the implementing agencies in behalf of the Philippines. The PHIC was established under Republic Act No. 7875, Section 16(g) of which grants the corporation the power "to sue and be sued in court." Applying the previously cited jurisprudence, PHIC would not enjoy immunity from suit even in the performance of its functions connected with SHINE, however, governmental in nature as they may be. Is GTZ an incorporated agency of the German government? There is some mystery surrounding that question. Neither GTZ nor the OSG go beyond the claim that petitioner is "the implementing agency of the Government of the Federal Republic of Germany." On the other hand, private respondents asserted before the Labor Arbiter that GTZ 42 was "a private corporation engaged in the implementation of development projects." The Labor Arbiter accepted 43 that claim in his Order denying the Motion to Dismiss, though he was silent on that point in his Decision. Nevertheless, private respondents argue in their Comment that the finding that GTZ was a private corporation "was 44 never controverted, and is therefore deemed admitted." In its Reply, GTZ controverts that finding, saying that it is a matter of public knowledge that the status of petitioner GTZ is that of the "implementing agency," and not that of a 45 private corporation. In truth, private respondents were unable to adduce any evidence to substantiate their claim that GTZ was a "private corporation," and the Labor Arbiter acted rashly in accepting such claim without explanation. But neither has GTZ supplied any evidence defining its legal nature beyond that of the bare descriptive "implementing agency." There is no doubt that the 1991 Agreement designated GTZ as the "implementing agency" in behalf of the German government. Yet the catch is that such term has no precise definition that is responsive to our concerns. Inherently, an agent acts in behalf of a principal, and the GTZ can be said to act in behalf of the German state. But that is as far as "implementing agency" could take us. The term by itself does not supply whether GTZ is incorporated or unincorporated, whether it is owned by the German state or by private interests, whether it has juridical personality independent of the German government or none at all. 46 GTZ itself provides a more helpful clue, inadvertently, through its own official Internet website. In the "Corporate Profile" section of the English language version of its site, GTZ describes itself as follows: As an international cooperation enterprise for sustainable development with worldwide operations, the federally owned Deutsche Gesellschaft fr Technische Zusammenarbeit (GTZ) GmbH supports the German Government in achieving its development-policy objectives. It provides viable, forward-looking solutions for political, economic, ecological and social development in a globalised world. Working under difficult conditions, GTZ promotes complex reforms and change processes. Its corporate objective is to improve peoples living conditions on a sustainable basis. GTZ is a federal enterprise based in Eschborn near Frankfurt am Main. It was founded in 1975 as a company under private law. The German Federal Ministry for Economic Cooperation and Development (BMZ) is its major client. The company also operates on behalf of other German ministries, the governments of other countries and international clients, such as the European Commission, the United Nations and the World Bank, as well as on behalf of private enterprises. GTZ works on a public-benefit basis. All surpluses generated are channeled [sic] back into its own 47 international cooperation projects for sustainable development. GTZs own website elicits that petitioner is "federally owned," a "federal enterprise," and "founded in 1975 as a company under private law." GTZ clearly has a very meaningful relationship with the Federal Republic of Germany, which apparently owns it. At the same time, it appears that GTZ was actually organized not through a legislative public charter, but under private law, in the same way that Philippine corporations can be organized under the Corporation Code even if fully owned by the Philippine government. This self-description of GTZ in its own official website gives further cause for pause in adopting petitioners argument that GTZ is entitled to immunity from suit because it is "an implementing agency." The above-quoted statement does not dispute the characterization of GTZ as an "implementing agency of the Federal Republic of Germany," yet it bolsters the notion that as a company organized under private law, it has a legal personality independent of that of the Federal Republic of Germany. 48 The Federal Republic of Germany, in its own official website, also makes reference to GTZ and describes it in this manner: x x x Going by the principle of "sustainable development," the German Technical Cooperation (Deutsche Gesellschaft fr Technische Zusammenarbeit GmbH, GTZ) takes on non-profit projects in international "technical cooperation." 49 The GTZ is a private company owned by the Federal Republic of Germany.

Again, we are uncertain of the corresponding legal implications under German law surrounding "a private company owned by the Federal Republic of Germany." Yet taking the description on face value, the apparent equivalent under Philippine law is that of a corporation organized under the Corporation Code but owned by the Philippine government, or a government-owned or controlled corporation without original charter. And it bears notice that Section 36 of the Corporate Code states that "[e]very corporation incorporated under this Code has the power and capacity x x x to sue 50 and be sued in its corporate name." It is entirely possible that under German law, an entity such as GTZ or particularly GTZ itself has not been vested or has been specifically deprived the power and capacity to sue and/or be sued. Yet in the proceedings below and before this Court, GTZ has failed to establish that under German law, it has not consented to be sued despite it being owned by the Federal Republic of Germany. We adhere to the rule that in the absence of evidence to the contrary, 51 foreign laws on a particular subject are presumed to be the same as those of the Philippines, and following the most intelligent assumption we can gather, GTZ is akin to a governmental owned or controlled corporation without original charter which, by virtue of the Corporation Code, has expressly consented to be sued. At the very least, like the Labor Arbiter and the Court of Appeals, this Court has no basis in fact to conclude or presume that GTZ enjoys immunity from suit. This absence of basis in fact leads to another important point, alluded to by the Labor Arbiter in his rulings. Our ruling 52 in Holy See v. Del Rosario provided a template on how a foreign entity desiring to invoke State immunity from suit could duly prove such immunity before our local courts. The principles enunciated in that case were derived from public international law. We stated then: In Public International Law, when a state or international agency wishes to plead sovereign or diplomatic immunity in a foreign court, it requests the Foreign Office of the state where it is sued to convey to the court that said defendant is entitled to immunity. In the United States, the procedure followed is the process of "suggestion," where the foreign state or the international organization sued in an American court requests the Secretary of State to make a determination as to whether it is entitled to immunity. If the Secretary of State finds that the defendant is immune from suit, he, in turn, asks the Attorney General to submit to the court a "suggestion" that the defendant is entitled to immunity. In England, a similar procedure is followed, only the Foreign Office issues a certification to that effect instead of submitting a "suggestion" (O'Connell, I International Law 130 [1965]; Note: Immunity from Suit of Foreign Sovereign Instrumentalities and Obligations, 50 Yale Law Journal 1088 [1941]). In the Philippines, the practice is for the foreign government or the international organization to first secure an executive endorsement of its claim of sovereign or diplomatic immunity. But how the Philippine Foreign Office conveys its endorsement to the courts varies. In International Catholic Migration Commission v. Calleja, 190 SCRA 130 (1990), the Secretary of Foreign Affairs just sent a letter directly to the Secretary of Labor and Employment, informing the latter that the respondent-employer could not be sued because it enjoyed diplomatic immunity. In World Health Organization v. Aquino, 48 SCRA 242 (1972), the Secretary of Foreign Affairs sent the trial court a telegram to that effect. In Baer v. Tizon, 57 SCRA 1 (1974), the U.S. Embassy asked the Secretary of Foreign Affairs to request the Solicitor General to make, in behalf of the Commander of the United States Naval Base at Olongapo City, Zambales, a "suggestion" to respondent Judge. The Solicitor General embodied the "suggestion" in a Manifestation 53 and Memorandum as amicus curiae. It is to be recalled that the Labor Arbiter, in both of his rulings, noted that it was imperative for petitioners to secure from the Department of Foreign Affairs "a certification of respondents diplomatic status and entitlement to diplomatic 54 privileges including immunity from suits." The requirement might not necessarily be imperative. However, had GTZ obtained such certification from the DFA, it would have provided factual basis for its claim of immunity that would, at the very least, establish a disputable evidentiary presumption that the foreign party is indeed immune which the opposing party will have to overcome with its own factual evidence. We do not see why GTZ could not have secured such certification or endorsement from the DFA for purposes of this case. Certainly, it would have been highly prudential for GTZ to obtain the same after the Labor Arbiter had denied the motion to dismiss. Still, even at this juncture, we do not see any evidence that the DFA, the office of the executive branch in charge of our diplomatic relations, has indeed endorsed GTZs claim of immunity. It may be possible that GTZ tried, but failed to secure such certification, due to the same concerns that we have discussed herein. Would the fact that the Solicitor General has endorsed GTZs claim of States immunity from suit before this Court sufficiently substitute for the DFA certification? Note that the rule in public international law quoted in Holy See referred to endorsement by the Foreign Office of the State where the suit is filed, such foreign office in the Philippines being the Department of Foreign Affairs. Nowhere in the Comment of the OSG is it manifested that the DFA has endorsed GTZs claim, or that the OSG had solicited the DFAs views on the issue. The arguments raised by the OSG are virtually the same as the arguments raised by GTZ without any indication of any special and distinct perspective maintained by the Philippine government on the issue. The Comment filed by the OSG does not inspire the same degree of confidence as a certification from the DFA would have elicited. 1avvphi1 55 Holy See made reference to Baer v. Tizon, and that in the said case, the United States Embassy asked the Secretary of Foreign Affairs to request the Solicitor General to make a "suggestion" to the trial court, accomplished by way of a Manifestation and Memorandum, that the petitioner therein enjoyed immunity as the Commander of the Subic Bay Naval Base. Such circumstance is actually not narrated in the text of Baer itself and was likely supplied in

Holy See because its author, Justice Camilio Quiason, had appeared as the Solicitor in behalf of the OSG in Baer. Nonetheless, as narrated in Holy See, it was the Secretary of Foreign Affairs which directed the OSG to intervene in behalf of the United States government in the Baer case, and such fact is manifest enough of the endorsement by the Foreign Office. We do not find a similar circumstance that bears here. The Court is thus holds and so rules that GTZ consistently has been unable to establish with satisfaction that it enjoys the immunity from suit generally enjoyed by its parent country, the Federal Republic of Germany. Consequently, both the Labor Arbiter and the Court of Appeals acted within proper bounds when they refused to acknowledge that GTZ is so immune by dismissing the complaint against it. Our finding has additional ramifications on the failure of GTZ to properly appeal the Labor Arbiters decision to the NLRC. As pointed out by the OSG, the direct recourse to the Court of Appeals while bypassing the NLRC could have been sanctioned had the Labor Arbiters decision been a "patent nullity." Since the Labor Arbiter acted properly in deciding the complaint, notwithstanding GTZs claim of immunity, we cannot see how the decision could have translated into a "patent nullity." As a result, there was no basis for petitioners in foregoing the appeal to the NLRC by filing directly with the Court of Appeals the petition for certiorari. It then follows that the Court of Appeals acted correctly in dismissing the petition on that ground. As a further consequence, since petitioners failed to perfe ct an appeal from the Labor Arbiters Decision, the same has long become final and executory. All other questions related to this case, such as whether or not private respondents were illegally dismissed, are no longer susceptible to review, respecting as we do the finality of the Labor Arbiters Decision. A final note. This decision should not be seen as deviation from the more common methodology employed in ascertaining whether a party enjoys State immunity from suit, one which focuses on the particular functions exercised by the party and determines whether these are proprietary or sovereign in nature. The nature of the acts performed by the entity invoking immunity remains the most important barometer for testing whether the privilege of State immunity from suit should apply. At the same time, our Constitution stipulates that a State immunity from suit is conditional on its withholding of consent; hence, the laws and circumstances pertaining to the creation and legal personality of an instrumentality or agency invoking immunity remain relevant. Consent to be sued, as exhibited in this decision, is often conferred by the very same statute or general law creating the instrumentality or agency. WHEREFORE, the petition is DENIED. No pronouncement as to costs. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 177531 September 10, 2009 CIVIL SERVICE COMMISSION, Petitioner, vs. FATIMA A. MACUD, Respondent. DECISION LEONARDO-DE CASTRO, J.: In this petition for review on certiorari under Rule 45 of the Rules of Court, petitioner seeks to set aside and annul the 1 2 Decision dated May 25, 2006 and the Resolution dated April 12, 2007 rendered by the Court of Appeals (CA), in CA-G.R. SP No. 00480. 3 The CA decision set aside an earlier resolution of the Civil Service Commission (CSC) Central Office as well as the 4 decision of Civil Service Commission Regional Office (CSCRO) XII which found respondent guilty of Dishonesty, Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service on the ground of lack of jurisdiction. The undisputed facts, as found by the CA, are quoted hereunder: As a requirement for her appointment as Teacher I of the Department of Education, Marawi City, petitioner FATIMA A. MACUD submitted her Personal Data Sheet (PDS) to the CSC Regional Office XII. Her declaration in the said PDS that she successfully passed the 23 October 1994 Professional Board Examination for Teachers (PBET) in Iligan City was the moving force which led to the instant controversy. Investigations were thereupon conducted by CSC Regional Office XII (CSCRO XII) anent petitioners PBET pursuant to its Standard Operating Procedure (SOP) to verify the eligibility of newly appointed teachers. Thereafter, on 27 November 2002, petitioner was formally charged with Dishonesty, Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service before the same regional office, to wit: 1. On April 10, 2002, Fatima A. Macud was appointed as Teacher I of the Department of Education- Marawi City Division by City Schools Division Superintendent Olindang G. Dimaampao; 2. In support of her appointment, Macud submitted a copy of her Personal Data Sheet (PDS) dated January 25, 2002. In the said PDS, particularly in item no. 19 thereof, Macud claims to have taken and passed the October 23, 1994 Professional Board Examination for Teachers (PBET) in Iligan City with a rating of 76.26%; 3. As a standard operating procedure, this Office verified the claimed eligibility of Macud with her examination records, namely: the Application Form (AF) to the said examination and the Picture-Seat Plan (PSP) of Room No. 16 at St. Michaels College, Iligan City;

4. In the examination of Macuds PDS, the AF and the PSP, the following were revealed: 4.1 There is a disparity in Macuds date of birth as appearing in the AF and PSP as against her PDS accomplished on January 25, 2002. December 15, 1958 appeared as her date of birth in the AF and PSP while it is December 15, 1965 that appeared in her PDS; 4.2 A comparison of the facial features of Macud in the picture attached to her PDS vis--vis her features as shown in the picture attached to the AF and PSP shows an obvious dissemblance; 4.3 The signature of Macud as appearing in her PDS is likewise different from that affixed in her AF and PSP. The foregoing facts clearly show that Macud deliberately allowed another person to take for and in her behalf the October 23, 1994 PBET in Iligan City. WHEREFORE, Fatima A. Macud is hereby formally charged with Dishonesty, Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service. Accordingly, she is given five (5) days from receipt hereof to submit to this Office a written answer under oath, together with the affidavit of her witnesses and documentary evidence, if any. She shall state whether she elects a formal investigation or waives the same. Respondent is also informed of her right to engage the service of a counsel of her choice. In her Answer, petitioner asserted that she personally took the PBET on 23 October 1994 in Iligan City. While she admitted item nos. 1, 2, 4.1, 4.3 of the formal charge filed against her, supra, petitioner vehemently denied item no. 4.2 by alleging that the dissemblance of her picture attached to her AF and PSP from her picture pasted on her PDS was because the two pictures were taken on two different occasions, i.e., her picture in the AF and PSP was taken in 1993 while that of the PDS was taken in 2002, roughly nine (9) years apart from each other. Anent the disparity in her signatures, petitioner reasoned out that it was the result of the change of her status, i.e., she eventually got married and had to use the surname of her husband. With respect to her date of birth, she alleged that her known and recognized date of birth prior and up to 1994 was 15 December 1958. Thereafter, she was informed that her correct date of birth is 15 December 1965, as indicated in her PDS dated 25 January 2002. On 19 August 2003, CSCRO XII conducted a formal investigation. However, petitioner failed to attend. Nevertheless, the investigation proceeded with the presentation of documentary evidence against her, viz: Application Form filled out by Fatima Ali on 23 October 1994 for the PBET; Picture-Seat Plan (PSP) of Room #16, St. Michaels College, Iligan City; Personal Data Sheet (PDS) of Fatima Ali-Macud dated 25 January 2002; Appointment of Fatima AliMacud as Teacher I (Regular Permanent) in the Department of Education-Division of Marawi City issued by Supt. Olindang G. Dimaampao dated 10 April 2002; Personal Data Sheet (PDS) of Fatima C. Ali dated 1 November 1987. On 27 January 2004, the CSCRO XII rendered a Decision, the dispositive portion thereof reads: WHEREFORE, Fatima A. Macud is hereby found guilty of Dishonesty, Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service. Accordingly, she should be meted the penalty of dismissal from the service with all the accessory penalties, including perpetual disqualification from holding public office in the future. Furthermore, the Civil Service eligibility of Macud is hereby revoked and cancelled. Let copies of this Decision be furnished the respondent in her address on record; the Division Superintendent, Department of Education (DepEd) - Iligan City Branch; the Office for Legal Affairs (OLA), Civil Service Commission (CSC); the Civil Service Commission Field Office (CSCFO) for Lanao del Sur and Marawi City; the Personnel Inspection and Audit Division (PIAD) and the Examination and Placement Services Division (EPSD), both of this Office, for their information. The petitioners motion for reconsideration of the Decision, supra, was denied by the CS CRO XII on 23 March 2004. On her Appeal to the CSC Central Office, petitioner raised the following issues: 1. Whether or not the Civil Service Commission-Regional Office No. XII, Cotabato City, has jurisdiction over the person of the respondent-appellant and, therefore has jurisdiction to try and decide the case; 2. Whether or nor respondent-appellant committed, in fact and in law, the charges of Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest of Service; 3. Whether or not the PBET Civil Service Eligibility can be revoked and cancelled motu proprio without the benefit of basic due process requirements of notice and hearing. On 15 June 2005, the CSC rendered Resolution No. 050780, denying petitioners appeal, the fallo thereof state s: WHEREFORE, the appeal of Fatima A. Macud is hereby DISMISSED. Accordingly, the Civil Service Commission Regional Office No. XII Decisions dated January 27, 2004, finding her guilty of Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest of Service, and dated March 23, 2004 denying Macuds motion for 5 reconsideration are hereby AFFIRMED. Aggrieved with the ruling of the CSC, respondent Macud elevated the matter to the CA by way of a petition for certiorari, docketed as CA-G.R. SP No. 00480. In support of her CA petition, respondent raised the following arguments: (a) It was not the CSCRO XII that had jurisdiction over the case and person of respondent but the CSCRO XVI (ARMM) since respondent was assigned to a public school located in Marawi City within the territorial jurisdiction of the Autonomous Region of Muslim Mindanao (ARMM). (b) There was no substantial evidence to prove the charges against respondent, since (i) no witnesses were presented to authenticate the photographs in the various forms used by the CSC in determining respondents guilt; (ii) no expert evidence was presented to determine the genuineness of the

handwriting/signatures in the questioned forms; and (iii) the true birth date of respondent was never established by convincing proof such as her birth certificate. On December 13, 2001, the CA promulgated its assailed decision granting respondents petition and setting as ide the decisions of the CSC Central Office and CSCRO XII on the sole ground of lack of jurisdiction. In so ruling, the CA declared: [T]he CSC has no jurisdiction to hear and decide the instant case. xxx Republic Act No. 4670 or the Magna Carta for Public School Teachers of 1966 is the law in point. xxx In Armand Fabella, et al vs. Court of Appeals, et al, the Supreme Court emphatically ruled that RA 4670, otherwise known as the Magna Carta for Public School Teachers, specifically covers and governs administrative proceedings involving public school teachers. x x x Although under Presidential Decree No. 807 (PD 807) or the Civil Service Law, the Civil Service embraces every branch, agency, subdivision, and instrumentality of the government, including government-owned or controlled corporations whether performing governmental or proprietary function, the CSC does not have original jurisdiction over an administrative case against public school teacher. Jurisdiction over administrative cases of public school teachers is lodged with the Investigating Committee created pursuant to Section 9 of RA 4670, supra, now being implemented by Section 2, Chapter VII of DECS Order No. 33, S. 1999, otherwise known as the DECS Rules of Procedure. xxx Certainly as petitioner is covered by RA 4670, it is the Investigating Committee that should have investigated her case conformably with Section 9 of RA 4670, supra, and not the CSC. Thus, all proceedings undertaken by the latter 6 with respect to the instant case are necessarily void. Petitioners subsequent motion for reconsideration was denied by the CA in its Resolution dated April 12, 2007. Hence, the instant petition anchored on the following grounds: I The Honorable Court of Appeals erred in ruling that the Investigating Committee formed under R.A. 4670 has exclusive jurisdiction to try the administrative case against respondent. II The Honorable Court of Appeals erred in holding that respondent is not estopped from impugning the jurisdiction of the CSC on the ground that lack of jurisdiction could be assailed at anytime of the proceedings. Petitioner asserts that it has jurisdiction to take cognizance of the case against respondent pursuant to Presidential Decree (P.D.) No. 807 (Civil Service Law), which provides that the civil service embraces every branch, agency, 7 subdivision and instrumentality of the government; and Executive Order (E.O.) No. 292 (Administrative Code of 8 1987), which grants the CSC the power to hear and decide administrative cases instituted by it directly. Petitioner also avers that respondent is estopped from assailing the jurisdiction of the CSC after having participated in the proceedings therein. On the other hand, respondent maintains that as a teacher, jurisdiction over the administrative case against her is lodged with a committee constituted under Section 9 of Republic Act (R.A.) No. 4670 (Magna Carta for Public School Teachers) and not with the CSC, because R.A. No. 4670 specifically governs administrative proceedings involving public school teachers. We grant the petition. As the Solicitor General correctly argues, petitioner CSC is the constitutional body charged with the establishment and administration of a career civil service which embraces all branches and agencies of the government. Article IX-B, Section 2(1) of the 1987 Constitution provides: Section 2. (1) The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters. x x x (emphasis ours) Section 3 of the same Article further states: Section 3. The Civil Service Commission, as the central personnel agency of the Government, shall establish a career service and adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy in the civil service. It shall strengthen the merit and rewards system, integrate all human resources development programs for all levels and ranks, and institutionalize a management climate conducive to public accountability. It shall submit to the President and the Congress an annual report on its personnel programs. (emphasis ours) Section 12, Chapter 3, Title I (A), Book V of E.O. No. 292 (the Administrative Code of 1987) likewise pertinently provides: Section 12. Powers and Functions. The Commission shall have the following powers and functions: (1) Administer and enforce the constitutional and statutory provisions on the merit system for all levels and ranks in the Civil Service; (2) Prescribe, amend and enforce rules and regulations for carrying into effect the provisions of the Civil Service Law and other pertinent laws; xxx xxx xxx

(11) Hear and decide administrative cases instituted by or brought before it directly or on appeal, including contested appointments, and review decisions and actions of agencies attached to it xxx xxx xxx (14) Take appropriate action on all appointments and other personnel matters in the Civil Service including extension of service beyond retirement age; xxx xxx xxx 9 In the recent case of Civil Service Commission v. Alfonso, the Court held that special laws such as R.A. 4670 did not divest the CSC of its inherent power to supervise and discipline all members of the civil service, including public school teachers. To quote from that decision: As the central personnel agency of the government, the CSC has jurisdiction to supervise the performance of and discipline, if need be, all government employees, including those employed in government-owned or controlled corporations with original charters such as PUP. Accordingly, all PUP officers and employees, whether they be classified as teachers or professors pursuant to certain provisions of law, are deemed, first and foremost, civil servants accountable to the people and answerable to the CSC in cases of complaints lodged by a citizen against them as public servants. xxx xxx xxx xxx We are not unmindful of certain special laws that allow the creation of disciplinary committees and governing bodies in different branches, subdivisions, agencies and instrumentalities of the government to hear and decide administrative complaints against their respective officers and employees. Be that as it may, we cannot interpret the creation of such bodies nor the passage of laws such as R.A. Nos. 8292 and 4670 allowing for the creation of such disciplinary bodies as having divested the CSC of its inherent power to supervise and discipline government employees, including those in the academe. To hold otherwise would not only negate the very purpose for which the CSC was established, i.e. to instill professionalism, integrity, and accountability in our civil service, but would also impliedly amend the Constitution itself. (emphasis supplied) 10 This Court has also previously held in Civil Service Commission v. Albao that the CSC has the authority to directly institute proceedings to discipline a government employee in order to protect the integrity of the civil service. The relevant portion of our ruling in Albao follows: The present case, however, partakes of an act by petitioner to protect the integrity of the civil service system It falls under the provisions of Sec. 12, par. 11, on administrative cases instituted by it directly. This is an integral part of its duty, authority and power to administer the civil service system and protect its integrity, as provided in Article IX-B, Sec. 3 of the Constitution, by removing from its list of eligibles those who falsified their qualifications. This is to be distinguished from ordinary proceedings intended to discipline a bona fide member of the system, for acts or 11 omissions that constitute violations of the law or the rules of the service. (emphasis supplied) Indeed, where an administrative case involves the alleged fraudulent procurement of an eligibility or qualification for employment in the civil service, it is but proper that the CSC would have jurisdiction over the case for it is in the best position to determine if there has been a violation of civil service rules and regulations. 12 The CAs reliance on Fabella v. Court of Appeals is misplaced. That case did not involve a conflict between the jurisdiction of the CSC over administrative cases of public school teachers and the jurisdiction of the investigating committee under Section 9 of R.A. 4670. The doctrine in Fabella is simply that in a proceeding pending before the investigating committee the procedure set down in R.A. 4670 must be adhered to as a requirement of due process. 13 Indeed, in Office of the Ombudsman v. Masing, we held: It is erroneous, therefore, for respondents to contend that R.A. No. 4670 confers an exclusive disciplinary authority on the DECS over public school teachers and prescribes an exclusive procedure in administrative investigations involving them. R.A. No. 4670 was approved on June 18, 1966. On the other hand, the 1987 Constitution was ratified by the people in a plebiscite in 1987... It is basic that the 1987 Constitution should not be restricted in its meaning by a law of earlier enactment However, repeals by implication are not favored, and courts have the duty to harmonize, so far as it is practicable, apparently conflicting or inconsistent provisions. Therefore, the statement in Fabella that Section 9 of R.A. No. 4670 reflects the legislative intent to impose a standard and a separate set of procedural requirements in connection with administrative proceedings involving public school teachers should be construed as referring only to the specific procedure to be followed in administrative investigations conducted by the DECS. (emphasis supplied) Moreover, it is now too late for respondent to challenge the jurisdiction of the CSC. After participating in the proceedings before the CSC, respondent is effectively barred by estoppel from challenging the CSCs jurisdiction. While it is a rule that a jurisdictional question may be raised anytime, this, however, admits of an exception where, as 14 in this case, estoppel has supervened. Here, respondent participated actively in the proceedings before CSCRO XII and voluntarily submitted to its jurisdiction with the filing of her Answer, Motion to Reset the Hearing, Urgent Motion for Reconsideration, as well as in seeking affirmative relief from it and in subsequently filing an appeal to the CSC Central Office. In all these instances and even in her petition with the CA, respondent never raised the issue of lack of jurisdiction of the CSC. Her only jurisdictional objection was that her case should have been investigated by CSCRO XVI (ARMM), as she was a teacher in a public school located within the geographical area of the ARMM. However, by invoking the

jurisdiction of CSCRO XVI-ARMM, respondent, in effect, fully recognized the jurisdiction of the CSC to hear and decide the case against her. It was the CA in its May 25, 2006 Decision that first espoused the theory the CSC had no jurisdiction, not for the reasons cited by respondent, but in view of Section 9 of R.A. 4670. In any event, it cannot be denied that respondent was formally charged after a finding that a prima facie case for dishonesty, grave misconduct and conduct prejudicial to the best interest of the service lay against her. She was properly informed of the charges. She submitted an Answer and was given the opportunity to defend herself. Petitioner cannot, therefore, claim that there was a denial of due process, much less, lack of jurisdiction on the part of the CSC to take cognizance of the case.1avvphi1 One cannot belatedly reject or repudiate a tribunals decision after voluntarily submitting to its jurisdiction, just to secure affirmative relief against ones opponent or after failing to obtain such relief. The Court has time and again frowned upon the undesirable practice of a party submitting his case for decision and then accepting the judgment, 15 only if favorable, and attacking it for lack of jurisdiction when adverse. The defense of lack of jurisdiction fails in light of respondents active participation in the administrative proceedings before the CSC. Further, respondents culpability for dishonesty, grave misconduct and conduct prejudicial to the best interest of the service are supported by substantial evidence. An examination of her 2002 and 1987 Personal Data Sheets 16 (PDS) reveals that her signatures and pictures thereon are markedly different from those in her Application Form 17 (AF) and the Picture Seat Plan (PSP) for the October 1994 Professional Board Examination for Teachers 18 (PBET). There was likewise a discrepancy between respondents date of birth, which appeared on her 2002 PDS (December 15, 1965), and the birth date indicated in her AF and PSP (December 15, 1958). Respondent failed to offer a reasonable explanation for this. We find incredible respondents unsubstantiated claim that she used to believe her birth year to be 1958 but was later informed by persons who knew the circumstances of her birth that she was purportedly born in 1965. If respondents defenses were true, then she should have produced her birth records and the testimonial or expert evidence that allegedly could exculpate her. Unfortunately, she did not present such evidence. 19 As held in Civil Service Commission v. Colanggo, a finding of guilt in administrative cases before the CSC, if supported by substantial evidence (or "that amount of evidence which a reasonable mind might accept as adequate to justify a conclusion"), will be sustained by this Court. It must be stressed that dishonesty and grave misconduct have always been and should remain anathema in the civil service. They inevitably reflect on the fitness of a civil servant to continue in office. When an officer or employee is disciplined, the object sought is not the punishment of such officer or employee but the improvement of the public 20 service and the preservation of the publics faith and confidence in the government. WHEREFORE, the petition is hereby GRANTED. The appealed decision of the CA in CA-G.R. SP No. 00480 is hereby REVERSED and SET ASIDE and CSC Resolution No. 050780 dated June 15, 2005 and CSC-RO XII Decisions dated January 27, 2004 and March 23, 2004 are REINSTATED. SO ORDERED. THE OFFICE OF THE SOLICITOR GENERAL, G.R. No. 177056 Petitioner, Present: - versus AYALA LAND INCORPORATED, ROBINSONS LAND CORPORATION, SHANGRI-LA PLAZA CORPORATION and SM PRIME HOLDINGS, INC., Respondents. YNARES-SANTIAGO, J., Chairperson, CHICO-NAZARIO, VELASCO, JR., NACHURA, and PERALTA, JJ.

Promulgated:

September 18, 2009 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION

CHICO-NAZARIO, J.:

Before this Court is a Petition for Review on Certiorari, under Rule 45 of the Revised Rules of Court, filed [2] by petitioner Office of the Solicitor General (OSG), seeking the reversal and setting aside of the Decision dated 25 [3] January 2007 of the Court of Appeals in CA-G.R. CV No. 76298, which affirmed in toto the Joint Decision dated 29 May 2002 of the Regional Trial Court (RTC) of Makati City, Branch 138, in Civil Cases No. 00-1208 and No. 00-1210; [4] and (2) the Resolution dated 14 March 2007 of the appellate court in the same case which denied the Motion for Reconsideration of the OSG. The RTC adjudged that respondents Ayala Land Incorporated (Ayala Land), Robinsons Land Corporation (Robinsons), Shangri-la Plaza Corporation (Shangri-la), and SM Prime Holdings, Inc. (SM Prime) could not be obliged to provide free parking spaces in their malls to their patrons and the general public. Respondents Ayala Land, Robinsons, and Shangri-la maintain and operate shopping malls in various locations in Metro Manila. Respondent SM Prime constructs, operates, and leases out commercial buildings and other structures, among which, are SM City, Manila; SM Centerpoint, Sta. Mesa, Manila; SM City, North Avenue, Quezon City; and SM Southmall, Las Pias. The shopping malls operated or leased out by respondents have parking facilities for all kinds of motor vehicles, either by way of parking spaces inside the mall buildings or in separate buildings and/or adjacent lots that are solely devoted for use as parking spaces. Respondents Ayala Land, Robinsons, and SM Prime spent for the construction of their own parking facilities. Respondent Shangri-la is renting its parking facilities, consisting of land and building specifically used as parking spaces, which were constructed for the lessors account. Respondents expend for the maintenance and administration of their respective parking facilities. They provide security personnel to protect the vehicles parked in their parking facilities and maintain order within the area. In turn, they collect the following parking fees from the persons making use of their parking facilities, regardless of whether said persons are mall patrons or not: Respondent Ayala Land Parking Fees On weekdays, P25.00 for the first four hours andP10.00 for every succeeding hour; on weekends, flat rate of P25.00 per day P20.00 for the first three hours and P10.00 for every succeeding hour Flat rate of P30.00 per day P10.00 to P20.00 (depending on whether the parking space is outdoors or indoors) for the first three hours and 59 minutes, and P10.00 for every succeeding hour or fraction thereof

[1]

Robinsons

Shangri-la SM Prime

The parking tickets or cards issued by respondents to vehicle owners contain the stipulation that respondents shall not be responsible for any loss or damage to the vehicles parked in respondents parking facilities. In 1999, the Senate Committees on Trade and Commerce and on Justice and Human Rights conducted a joint investigation for the following purposes: (1) to inquire into the legality of the prevalent practice of shopping malls of charging parking fees; (2) assuming arguendo that the collection of parking fees was legally authorized, to find out the basis and reasonableness of the parking rates charged by shopping malls; and (3) to determine the legality of the policy of shopping malls of denying liability in cases of theft, robbery, or carnapping, by invoking the waiver clause at the back of the parking tickets. Said Senate Committees invited the top executives of respondents, who operate the major malls in the country; the officials from the Department of Trade and Industry (DTI), Department of Public Works and Highways (DPWH), Metro Manila Development Authority (MMDA), and other local government officials; and the Philippine Motorists Association (PMA) as representative of the consumers group. After three public hearings held on 30 September, 3 November, and 1 December 1999, the afore-mentioned [5] Senate Committees jointly issued Senate Committee Report No. 225 on 2 May 2000, in which they concluded: In view of the foregoing, the Committees find that the collection of parking fees by shopping malls is contrary to the National Building Code and is therefor [ sic] illegal. While it is true that the Code merely requires malls to provide parking spaces, without specifying whether it is free or not, both Committees believe that the reasonable and logical interpretation of the Code is that

the parking spaces are for free. This interpretation is not only reasonable and logical but finds support in the actual practice in other countries like the United States of America where parking spaces owned and operated by mall owners are free of charge. Figuratively speaking, the Code has expropriated the land for parking something similar to the subdivision law which require developers to devote so much of the land area for parks. Moreover, Article II of R.A. No. 9734 (Consumer Act of the Philippines) provides that it is the policy of the State to protect the interest of the consumers, promote the general welfare and establish standards of conduct for business and industry. Obviously, a contrary interpretation (i.e., justifying the collection of parking fees) would be going against the declared policy of R.A. 7394. Section 201 of the National Building Code gives the responsibility for the administration and enforcement of the provisions of the Code, including the imposition of penalties for administrative violations thereof to the Secretary of Public Works. This set up, however, is not being carried out in reality. In the position paper submitted by the Metropolitan Manila Development Authority (MMDA), its chairman, Jejomar C. Binay, accurately pointed out that the Secretary of the DPWH is responsible for the implementation/enforcement of the National Building Code. After the enactment of the Local Government Code of 1991, the local government units (LGUs) were tasked to discharge the regulatory powers of the DPWH. Hence, in the local level, the Building Officials enforce all rules/ regulations formulated by the DPWH relative to all building plans, specifications and designs including parking space requirements. There is, however, no single national department or agency directly tasked to supervise the enforcement of the provisions of the Code on [6] parking, notwithstanding the national character of the law.

Senate Committee Report No. 225, thus, contained the following recommendations: In light of the foregoing, the Committees on Trade and Commerce and Justice and Human Rights hereby recommend the following: 1. The Office of the Solicitor General should institute the necessary action to enjoin the collection of parking fees as well as to enforce the penal sanction provisions of the National Building Code. The Office of the Solicitor General should likewise study how refund can be exacted from mall owners who continue to collect parking fees. The Department of Trade and Industry pursuant to the provisions of R.A. No. 7394, otherwise known as the Consumer Act of the Philippines should enforce the provisions of the Code relative to parking. Towards this end, the DTI should formulate the necessary implementing rules and regulations on parking in shopping malls, with prior consultations with the local government units where these are located. Furthermore, the DTI, in coordination with the DPWH, should be empowered to regulate and supervise the construction and maintenance of parking establishments. Finally, Congress should amend and update the National Building Code to expressly prohibit shopping malls from collecting parking fees by at the same time, prohibit them [7] from invoking the waiver of liability.

2.

3.

Respondent SM Prime thereafter received information that, pursuant to Senate Committee Report No. 225, the DPWH Secretary and the local building officials of Manila, Quezon City, and Las Pias intended to institute, through the OSG, an action to enjoin respondent SM Prime and similar establishments from collecting parking fees, and to impose upon said establishments penal sanctions under Presidential Decree No. 1096, otherwise known as the National Building Code of the Philippines (National Building Code), and its Implementing Rules and Regulations (IRR). With the threatened action against it, respondent SM Prime filed, on 3 October 2000, a Petition for Declaratory [8] Relief under Rule 63 of the Revised Rules of Court, against the DPWH Secretary and local building officials of Manila, Quezon City, and Las Pias. Said Petition was docketed as Civil Case No. 00-1208 and assigned to the RTC of Makati City, Branch 138, presided over by Judge Sixto Marella, Jr. (Judge Marella). In its Petition, respondent SM Prime prayed for judgment:

a) Declaring Rule XIX of the Implementing Rules and Regulations of the National Building Code as ultra vires, hence, unconstitutional and void; b) Declaring [herein respondent SM Prime]s clear legal right to lease parking spaces appurtenant to its department stores, malls, shopping centers and other commercial establishments; and c) Declaring the National Building Code of the Philippines Implementing Rules and Regulations as ineffective, not having been published once a week for three (3) consecutive weeks in a newspaper of general circulation, as prescribed by Section 211 of Presidential Decree No. 1096. [Respondent SM Prime] further prays for such other reliefs as may be deemed just and [9] equitable under the premises.

The very next day, 4 October 2000, the OSG filed a Petition for Declaratory Relief and Injunction (with [10] Prayer for Temporary Restraining Order and Writ of Preliminary Injunction) against respondents. This Petition was docketed as Civil Case No. 00-1210 and raffled to the RTC of Makati, Branch 135, presided over by Judge Francisco B. Ibay (Judge Ibay). Petitioner prayed that the RTC: 1. After summary hearing, a temporary restraining order and a writ of preliminary injunction be issued restraining respondents from collecting parking fees from their customers; and 2. After hearing, judgment be rendered declaring that the practice of respondents in charging parking fees is violative of the National Building Code and its Implementing Rules and Regulations and is therefore invalid, and making permanent any injunctive writ issued in this case. Other reliefs just and equitable under the premises are likewise prayed for.
[11]

On 23 October 2000, Judge Ibay of the RTC of Makati City, Branch 135, issued an Order consolidating Civil Case No. 00-1210 with Civil Case No. 00-1208 pending before Judge Marella of RTC of Makati, Branch 138. As a result of the pre-trial conference held on the morning of 8 August 2001, the RTC issued a Pre-Trial [12] Order of even date which limited the issues to be resolved in Civil Cases No. 00-1208 and No. 00-1210 to the following: 1. Capacity of the plaintiff [OSG] in Civil Case No. 00-1210 to institute the present proceedings and relative thereto whether the controversy in the collection of parking fees by mall owners is a matter of public welfare. 2. Whether declaratory relief is proper.

3. Whether respondent Ayala Land, Robinsons, Shangri-La and SM Prime are obligated to provide parking spaces in their malls for the use of their patrons or the public in general, free of charge. 4. Entitlement of the parties of [sic] award of damages.
[13]

On 29 May 2002, the RTC rendered its Joint Decision in Civil Cases No. 00-1208 and No. 00-1210. The RTC resolved the first two issues affirmatively. It ruled that the OSG can initiate Civil Case No. 00[14] 1210 under Presidential Decree No. 478 and the Administrative Code of 1987. It also found that all the requisites for an action for declaratory relief were present, to wit: The requisites for an action for declaratory relief are: (a) there is a justiciable controversy; (b) the controversy is between persons whose interests are adverse; (c) the party seeking the relief has a legal interest in the controversy; and (d) the issue involved is ripe for judicial determination.

SM, the petitioner in Civil Case No. 001-1208 [sic] is a mall operator who stands to be affected directly by the position taken by the government officials sued namely the Secretary of Public Highways and the Building Officials of the local government units where it operates shopping malls. The OSG on the other hand acts on a matter of public interest and has taken a position adverse to that of the mall owners whom it sued. The construction of new and bigger malls has been announced, a matter which the Court can take judicial notice and the unsettled issue of [15] whether mall operators should provide parking facilities, free of charge needs to be resolved.

As to the third and most contentious issue, the RTC pronounced that: The Building Code, which is the enabling law and the Implementing Rules and Regulations do not impose that parking spaces shall be provided by the mall owners free of charge. Absent such directive[,] Ayala Land, Robinsons, Shangri-la and SM [Prime] are under no obligation to provide them for free. Article 1158 of the Civil Code is clear: Obligations derived from law are not presumed. Only those expressly determined in this Code or in special laws are demandable and shall be regulated by the precepts of the law which establishes them; and as to what has not been foreseen, by the provisions of this Book (1090).[] xxxx The provision on ratios of parking slots to several variables, like shopping floor area or customer area found in Rule XIX of the Implementing Rules and Regulations cannot be construed as a directive to provide free parking spaces, because the enabling law, the Building Code does not so provide. x x x. To compel Ayala Land, Robinsons, Shangri-La and SM [Prime] to provide parking spaces for free can be considered as an unlawful taking of property right without just compensation. Parking spaces in shopping malls are privately owned and for their use, the mall operators collect fees. The legal relationship could be either lease or deposit. In either case[,] the mall owners have the right to collect money which translates into income. Should parking spaces be made free, this right of mall owners shall be gone. This, without just compensation. Further, loss of effective control over their property will ensue which is frowned upon by law. The presence of parking spaces can be viewed in another light. They can be looked at as necessary facilities to entice the public to increase patronage of their malls because without parking spaces, going to their malls will be inconvenient. These are[,] however[,] business considerations which mall operators will have to decide for themselves. They are not sufficient to justify a legal conclusion, as the OSG would like the Court to adopt that it is the obligation of the mall owners to [16] provide parking spaces for free.

The RTC then held that there was no sufficient evidence to justify any award for damages. The RTC finally decreed in its 29 May 2002 Joint Decision in Civil Cases No. 00-1208 and No. 00-1210 that: FOR THE REASONS GIVEN, the Court declares that Ayala Land[,] Inc., Robinsons Land Corporation, Shangri-la Plaza Corporation and SM Prime Holdings[,] Inc. are not obligated to provide parking spaces in their malls for the use of their patrons or public in general, free of charge. All counterclaims in Civil Case No. 00-1210 are dismissed. No pronouncement as to costs.
[17]

CA-G.R. CV No. 76298 involved the separate appeals of the OSG and respondent SM Prime Court of Appeals. The sole assignment of error of the OSG in its Appellants Brief was:

[18]

[19]

filed with the

THE TRIAL COURT ERRED IN HOLDING THAT THE NATIONAL BUILDING CODE DID NOT [20] INTEND MALL PARKING SPACES TO BE FREE OF CHARGE[;] while the four errors assigned by respondent SM Prime in its Appellants Brief were: I THE TRIAL COURT ERRED IN FAILING TO DECLARE RULE XIX OF THE IMPLEMENTING RULES AS HAVING BEEN ENACTED ULTRA VIRES, HENCE, UNCONSTITUTIONAL AND VOID. II THE TRIAL COURT ERRED IN FAILING TO DECLARE THE IMPLEMENTING RULES INEFFECTIVE FOR NOT HAVING BEEN PUBLISHED AS REQUIRED BY LAW. III THE TRIAL COURT ERRED IN FAILING TO DISMISS THE OSGS PETITION FOR DECLARATORY RELIEF AND INJUNCTION FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES. IV THE TRIAL COURT ERRED IN FAILING TO DECLARE THAT THE OSG HAS NO LEGAL CAPACITY TO SUE AND/OR THAT IT IS NOT A REAL PARTY-IN-INTEREST IN THE INSTANT [21] CASE.

Respondent Robinsons filed a Motion to Dismiss Appeal of the OSG on the ground that the lone issue raised therein involved a pure question of law, not reviewable by the Court of Appeals. The Court of Appeals promulgated its Decision in CA-G.R. CV No. 76298 on 25 January 2007. The appellate court agreed with respondent Robinsons that the appeal of the OSG should suffer the fate of dismissal, since the issue on whether or not the National Building Code and its implementing rules require shopping mall operators to provide parking facilities to the public for free was evidently a question of law. Even so, since CA-G.R. CV No. 76298 also included the appeal of respondent SM Prime, which raised issues worthy of consideration, and in order to satisfy the demands of substantial justice, the Court of Appeals proceeded to rule on the merits of the case. In its Decision, the Court of Appeals affirmed the capacity of the OSG to initiate Civil Case No. 00-1210 before [22] the RTC as the legal representative of the government, and as the one deputized by the Senate of the Republic of the Philippines through Senate Committee Report No. 225. The Court of Appeals rejected the contention of respondent SM Prime that the OSG failed to exhaust administrative remedies. The appellate court explained that an administrative review is not a condition precedent to judicial relief where the question in dispute is purely a legal one, and nothing of an administrative nature is to be or can be done. The Court of Appeals likewise refused to rule on the validity of the IRR of the National Building Code, as such issue was not among those the parties had agreed to be resolved by the RTC during the pre-trial conference for Civil Cases No. 00-1208 and No. 00-1210. Issues cannot be raised for the first time on appeal. Furthermore, the appellate court found that the controversy could be settled on other grounds, without touching on the issue of the validity of the IRR. It referred to the settled rule that courts should refrain from passing upon the constitutionality of a law or implementing rules, because of the principle that bars judicial inquiry into a constitutional question, unless the resolution thereof is indispensable to the determination of the case. Lastly, the Court of Appeals declared that Section 803 of the National Building Code and Rule XIX of the IRR were clear and needed no further construction. Said provisions were only intended to control the occupancy or congestion of areas and structures. In the absence of any express and clear provision of law, respondents could not be obliged and expected to provide parking slots free of charge.

The fallo of the 25 January 2007 Decision of the Court of Appeals reads: WHEREFORE, premises considered, the instant appeals are DENIED. Accordingly, [23] appealed Decision is hereby AFFIRMED in toto.

In its Resolution issued on 14 March 2007, the Court of Appeals denied the Motion for Reconsideration of the OSG, finding that the grounds relied upon by the latter had already been carefully considered, evaluated, and passed upon by the appellate court, and there was no strong and cogent reason to modify much less reverse the assailed judgment. The OSG now comes before this Court, via the instant Petition for Review, with a single assignment of error: THE COURT OF APPEALS SERIOUSLY ERRED IN AFFIRMING THE RULING OF THE LOWER COURT THAT RESPONDENTS ARE NOT OBLIGED TO PROVIDE FREE PARKING SPACES TO [24] THEIR CUSTOMERS OR THE PUBLIC.

The OSG argues that respondents are mandated to provide free parking by Section 803 of the National Building Code and Rule XIX of the IRR. According to Section 803 of the National Building Code: SECTION 803. Percentage of Site Occupancy (a) Maximum site occupancy shall be governed by the use, type of construction, and height of the building and the use, area, nature, and location of the site; and subject to the provisions of the local zoning requirements and in accordance with the rules and regulations promulgated by the Secretary.
[25]

In connection therewith, Rule XIX of the old IRR,

provides:

RULE XIX PARKING AND LOADING SPACE REQUIREMENTS Pursuant to Section 803 of the National Building Code (PD 1096) providing for maximum site occupancy, the following provisions on parking and loading space requirements shall be observed: 1. The parking space ratings listed below are minimum off-street requirements for specific uses/occupancies for buildings/structures: 1.1 The size of an average automobile parking slot shall be computed as 2.4 meters by 5.00 meters for perpendicular or diagonal parking, 2.00 meters by 6.00 meters for parallel parking. A truck or bus parking/loading slot shall be computed at a minimum of 3.60 meters by 12.00 meters. The parking slot shall be drawn to scale and the total number of which shall be indicated on the plans and specified whether or not parking accommodations, are attendant-managed. (See Section 2 for computation of parking requirements).

xxxx 1.7 Neighborhood shopping center 1 slot/100 sq. m. of shopping floor area

The OSG avers that the aforequoted provisions should be read together with Section 102 of the National Building Code, which declares: SECTION 102. Declaration of Policy

It is hereby declared to be the policy of the State to safeguard life, health, property, and public welfare, consistent with the principles of sound environmental management and control; and to this end, make it the purpose of this Code to provide for all buildings and structures, a framework of minimum standards and requirements to regulate and control their location, site, design, quality of materials, construction, use, occupancy, and maintenance. The requirement of free-of-charge parking, the OSG argues, greatly contributes to the aim of safeguarding life, health, property, and public welfare, consistent with the principles of sound environmental management and control. Adequate parking spaces would contribute greatly to alleviating traffic congestion when complemented by quick and easy access thereto because of free-charge parking. Moreover, the power to regulate and control the use, occupancy, and maintenance of buildings and structures carries with it the power to impose fees and, conversely, to control -- partially or, as in this case, absolutely -- the imposition of such fees. The Court finds no merit in the present Petition. The explicit directive of the afore-quoted statutory and regulatory provisions, garnered from a plain reading thereof, is that respondents, as operators/lessors of neighborhood shopping centers, should provide parking and loading spaces, in accordance with the minimum ratio of one slot per 100 square meters of shopping floor area. There is nothing therein pertaining to the collection (or non-collection) of parking fees by respondents. In fact, the term parking fees cannot even be found at all in the entire National Building Code and its IRR. Statutory construction has it that if a statute is clear and unequivocal, it must be given its literal meaning and [26] applied without any attempt at interpretation. Since Section 803 of the National Building Code and Rule XIX of its IRR do not mention parking fees, then simply, said provisions do not regulate the collection of the same. The RTC and the Court of Appeals correctly applied Article 1158 of the New Civil Code, which states: Art. 1158. Obligations derived from law are not presumed. Only those expressly determined in this Code or in special laws are demandable, and shall be regulated by the precepts of the law which establishes them; and as to what has not been foreseen, by the provisions of this Book. (Emphasis ours.)

Hence, in order to bring the matter of parking fees within the ambit of the National Building Code and its IRR, the OSG had to resort to specious and feeble argumentation, in which the Court cannot concur. The OSG cannot rely on Section 102 of the National Building Code to expand the coverage of Section 803 of the same Code and Rule XIX of the IRR, so as to include the regulation of parking fees. The OSG limits its citation to the first part of Section 102 of the National Building Code declaring the policy of the State to safeguard life, health, property, and public welfare, consistent with the principles of sound environmental management and control; but totally ignores the second part of said provision, which reads, and to this end, make it the purpose of this Code to provide for all buildings and structures, a framework of minimum standards and requirements to regulate and control their location, site, design, quality of materials, construction, use, occupancy, and maintenance. While the first part of Section 102 of the National Building Code lays down the State policy, it is the second part thereof that explains how said policy shall be carried out in the Code. Section 102 of the National Building Code is not an allencompassing grant of regulatory power to the DPWH Secretary and local building officials in the name of life, health, property, and public welfare. On the contrary, it limits the regulatory power of said officials to ensuring that the minimum standards and requirements for all buildings and structures, as set forth in the National Building Code, are complied with. Consequently, the OSG cannot claim that in addition to fixing the minimum requirements for parking spaces for buildings, Rule XIX of the IRR also mandates that such parking spaces be provided by building owners free of charge. If Rule XIX is not covered by the enabling law, then it cannot be added to or included in the implementing rules. The rule-making power of administrative agencies must be confined to details for regulating the mode or proceedings to carry into effect the law as it has been enacted, and it cannot be extended to amend or expand the statutory requirements or to embrace matters not covered by the statute. Administrative regulations must always be in harmony with the provisions of the law because any resulting discrepancy between the two will always be resolved [27] in favor of the basic law. From the RTC all the way to this Court, the OSG repeatedly referred to Republic v. Gonzales and City of [29] Ozamis v. Lumapas to support its position that the State has the power to regulate parking spaces to promote the health, safety, and welfare of the public; and it is by virtue of said power that respondents may be required to provide
[28]

free parking facilities. The OSG, though, failed to consider the substantial differences in the factual and legal backgrounds of these two cases from those of the Petition at bar. In Republic, the Municipality of Malabon sought to eject the occupants of two parcels of land of the public domain to give way to a road-widening project. It was in this context that the Court pronounced: Indiscriminate parking along F. Sevilla Boulevard and other main thoroughfares was prevalent; this, of course, caused the build up of traffic in the surrounding area to the great discomfort and inconvenience of the public who use the streets. Traffic congestion constitutes a threat to the health, welfare, safety and convenience of the people and it can only be substantially relieved by widening streets and providing adequate parking areas.

The Court, in City of Ozamis, declared that the City had been clothed with full power to control and regulate its streets for the purpose of promoting public health, safety and welfare. The City can regulate the time, place, and manner of parking in the streets and public places; and charge minimal fees for the street parking to cover the expenses for supervision, inspection and control, to ensure the smooth flow of traffic in the environs of the public market, and for the safety and convenience of the public. Republic and City of Ozamis involved parking in the local streets; in contrast, the present case deals with privately owned parking facilities available for use by the general public. In Republic and City of Ozamis, the concerned local governments regulated parking pursuant to their power to control and regulate their streets; in the instant case, the DPWH Secretary and local building officials regulate parking pursuant to their authority to ensure compliance with the minimum standards and requirements under the National Building Code and its IRR. With the difference in subject matters and the bases for the regulatory powers being invoked, Republicand City of Ozamis do not constitute precedents for this case. Indeed, Republic and City of Ozamis both contain pronouncements that weaken the position of the OSG in the case at bar. In Republic, the Court, instead of placing the burden on private persons to provide parking facilities to the general public, mentioned the trend in other jurisdictions wherein the municipal governments themselves took the initiative to make more parking spaces available so as to alleviate the traffic problems, thus: Under the Land Transportation and Traffic Code, parking in designated areas along public streets or highways is allowed which clearly indicates that provision for parking spaces serves a useful purpose. In other jurisdictions where traffic is at least as voluminous as here, the provision by municipal governments of parking space is not limited to parking along public streets or highways. There has been a marked trend to build off-street parking facilities with the view to removing parked cars from the streets. While the provision of off-street parking facilities or carparks has been commonly undertaken by private enterprise, municipal governments have been constrained to put up carparks in response to public necessity where private enterprise had failed to keep up with the growing public demand. American courts have upheld the right of municipal [30] governments to construct off-street parking facilities as clearly redounding to the public benefit.

In City of Ozamis, the Court authorized the collection by the City of minimal fees for the parking of vehicles along the streets: so why then should the Court now preclude respondents from collecting from the public a fee for the use of the mall parking facilities? Undoubtedly, respondents also incur expenses in the maintenance and operation of the mall parking facilities, such as electric consumption, compensation for parking attendants and security, and upkeep of the physical structures. It is not sufficient for the OSG to claim that the power to regulate and control the use, occupancy, and maintenance of buildings and structures carries with it the power to impose fees and, conversely, to control, partially or, as in this case, absolutely, the imposition of such fees. Firstly, the fees within the power of regulatory agencies to impose are regulatory fees. It has been settled law in this jurisdiction that this broad and all-compassing governmental competence to restrict rights of liberty and property carries with it the undeniable power to collect a regulatory fee. It looks to the enactment of specific measures that govern the relations not only as between [31] individuals but also as between private parties and the political society. True, if the regulatory agencies have the power to impose regulatory fees, then conversely, they also have the power to remove the same. Even so, it is worthy to note that the present case does not involve the imposition by the DPWH Secretary and local building officials of regulatory fees upon respondents; but the collection by respondents of parking fees from persons who use the mall parking facilities. Secondly, assuming arguendo that the DPWH Secretary and local building officials do have regulatory powers over the collection of parking fees for the use of privately owned parking facilities, they

cannot allow or prohibit such collection arbitrarily or whimsically. Whether allowing or prohibiting the collection of such parking fees, the action of the DPWH Secretary and local building officials must pass the test of classic [32] reasonableness and propriety of the measures or means in the promotion of the ends sought to be accomplished. Keeping in mind the aforementioned test of reasonableness and propriety of measures or means, the Court notes that Section 803 of the National Building Code falls under Chapter 8 on Light and Ventilation. Evidently, the Code deems it necessary to regulate site occupancy to ensure that there is proper lighting and ventilation in every building. Pursuant thereto, Rule XIX of the IRR requires that a building, depending on its specific use and/or floor area, should provide a minimum number of parking spaces. The Court, however, fails to see the connection between regulating site occupancy to ensure proper light and ventilation in every building vis--vis regulating the collection by building owners of fees for the use of their parking spaces. Contrary to the averment of the OSG, the former does not necessarily include or imply the latter. It totally escapes this Court how lighting and ventilation conditions at the malls could be affected by the fact that parking facilities thereat are free or paid for. The OSG attempts to provide the missing link by arguing that: Under Section 803 of the National Building Code, complimentary parking spaces are required to enhance light and ventilation, that is, to avoid traffic congestion in areas surrounding the building, which certainly affects the ventilation within the building itself, which otherwise, the annexed parking spaces would have served. Free-of-charge parking avoids traffic congestion by ensuring quick and easy access of legitimate shoppers to off-street parking spaces annexed to the malls, and thereby removing the vehicles of these legitimate shoppers off the busy streets near the [33] commercial establishments.

The Court is unconvinced. The National Building Code regulates buildings, by setting the minimum specifications and requirements for the same. It does not concern itself with traffic congestion in areas surrounding the building. It is already a stretch to say that the National Building Code and its IRR also intend to solve the problem of traffic congestion around the buildings so as to ensure that the said buildings shall have adequate lighting and ventilation. Moreover, the Court cannot simply assume, as the OSG has apparently done, that the traffic congestion in areas around the malls is due to the fact that respondents charge for their parking facilities, thus, forcing vehicle owners to just park in the streets. The Court notes that despite the fees charged by respondents, vehicle owners still use the mall parking facilities, which are even fully occupied on some days. Vehicle owners may be parking in the streets only because there are not enough parking spaces in the malls, and not because they are deterred by the parking fees charged by respondents. Free parking spaces at the malls may even have the opposite effect from what the OSG envisioned: more people may be encouraged by the free parking to bring their own vehicles, instead of taking public transport, to the malls; as a result, the parking facilities would become full sooner, leaving more vehicles without parking spaces in the malls and parked in the streets instead, causing even more traffic congestion. Without using the term outright, the OSG is actually invoking police power to justify the regulation by the State, through the DPWH Secretary and local building officials, of privately owned parking facilities, including the collection by the owners/operators of such facilities of parking fees from the public for the use thereof. The Court finds, however, that in totally prohibiting respondents from collecting parking fees from the public for the use of the mall parking facilities, the State would be acting beyond the bounds of police power. Police power is the power of promoting the public welfare by restraining and regulating the use of liberty and property. It is usually exerted in order to merely regulate the use and enjoyment of the property of the owner. The power to regulate, however, does not include the power to prohibit. A fortiori, the power to regulate does not include the power to confiscate. Police power does not involve the taking or confiscation of property, with the exception of a few cases where there is a necessity to confiscate private property in order to destroy it for the purpose of protecting peace and order and of promoting the general welfare; for instance, the confiscation of an illegally possessed article, [34] such as opium and firearms. When there is a taking or confiscation of private property for public use, the State is no longer exercising police power, but another of its inherent powers, namely, eminent domain. Eminent domain enables the State to [35] forcibly acquire private lands intended for public use upon payment of just compensation to the owner. Normally, of course, the power of eminent domain results in the taking or appropriation of title to, and possession of, the expropriated property; but no cogent reason appears why the said power may not be availed of [36] only to impose a burden upon the owner of condemned property, without loss of title and possession. It is a settled rule that neither acquisition of title nor total destruction of value is essential to taking. It is usually in cases where title remains with the private owner that inquiry should be made to determine whether the impairment of a property is

merely regulated or amounts to a compensable taking. A regulation that deprives any person of the profitable use of his property constitutes a taking and entitles him to compensation, unless the invasion of rights is so slight as to permit the regulation to be justified under the police power. Similarly, a police regulation that unreasonably restricts the right to use business property for business purposes amounts to a taking of private property, and the owner may [37] recover therefor. Although in the present case, title to and/or possession of the parking facilities remain/s with respondents, the prohibition against their collection of parking fees from the public, for the use of said facilities, is already tantamount to a taking or confiscation of their properties. The State is not only requiring that respondents devote a portion of the latters properties for use as park ing spaces, but is also mandating that they give the public access to said parking spaces for free. Such is already an excessive intrusion into the property rights of respondents. Not only are they being deprived of the right to use a portion of their properties as they wish, they are further prohibited from profiting from its use or even just recovering therefrom the expenses for the maintenance and operation of the required parking facilities. The ruling of this Court in City Government of Quezon City v. Judge Ericta is edifying. Therein, the City Government of Quezon City passed an ordinance obliging private cemeteries within its jurisdiction to set aside at least six percent of their total area for charity, that is, for burial grounds of deceased paupers. According to the Court, the ordinance in question was null and void, for it authorized the taking of private property without just compensation: There is no reasonable relation between the setting aside of at least six (6) percent of the total area of all private cemeteries for charity burial grounds of deceased paupers and the promotion of' health, morals, good order, safety, or the general welfare of the people. The ordinance is actually a taking without compensation of a certain area from a private cemetery to benefit paupers who are charges of the municipal corporation. Instead of' building or maintaining a public cemetery for this purpose, the city passes the burden to private cemeteries. 'The expropriation without compensation of a portion of private cemeteries is not covered by Section 12(t) of Republic Act 537, the Revised Charter of Quezon City which empowers the city council to prohibit the burial of the dead within the center of population of the city and to provide for their burial in a proper place subject to the provisions of general law regulating burial grounds and cemeteries. When the Local Government Code, Batas Pambansa Blg. 337 provides in Section 177(q) that a sangguniang panlungsod may "provide for the burial of the dead in such place and in such manner as prescribed by law or ordinance" it simply authorizes the city to provide its own city owned land or to buy or expropriate private properties to construct public cemeteries. This has been the law, and practise in the past. It continues to the present. Expropriation, however, requires payment of just compensation. The questioned ordinance is different from laws and regulations requiring owners of subdivisions to set aside certain areas for streets, parks, playgrounds, and other public facilities from the land they sell to buyers of subdivision lots. The necessities of public safety, health, and convenience are very clear from said requirements which are intended to insure the development of communities with salubrious and wholesome environments. The beneficiaries of the regulation, in turn, are made to pay by the subdivision developer when individual lots are sold to homeowners.
[38]

In conclusion, the total prohibition against the collection by respondents of parking fees from persons who use the mall parking facilities has no basis in the National Building Code or its IRR. The State also cannot impose the same prohibition by generally invoking police power, since said prohibition amounts to a taking of respondents property without payment of just compensation. Given the foregoing, the Court finds no more need to address the issue persistently raised by respondent SM Prime concerning the unconstitutionality of Rule XIX of the IRR. In addition, the said issue was not among those that the parties, during the pre-trial conference for Civil Cases No. 12-08 and No. 00-1210, agreed to submit for resolution of the RTC. It is likewise axiomatic that the constitutionality of a law, a regulation, an ordinance or an act will not be [39] resolved by courts if the controversy can be, as in this case it has been, settled on other grounds. WHEREFORE, the instant Petition for Review on Certiorari is hereby DENIED. The Decision dated 25 January 2007 and Resolution dated 14 March 2007 of the Court of Appeals in CA-G.R. CV No. 76298, affirming in toto the Joint Decision dated 29 May 2002 of the Regional Trial Court of Makati City, Branch 138, in Civil Cases No. 00-1208 and No. 00-1210 are hereby AFFIRMED. No costs. SO ORDERED.

SUZETTE NICOLAS y SOMBILON, Petitioner,

G.R. No. 175888

Present: PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, and PERALTA, JJ.

- versus -

A L B E R T O R O M U L O , i n h i s c a p a c i t y a s S e c r e t a

r y o f F o r e i g n A f f a i r s ; R A U L G O N Z A L E Z , i n h i s c a p a c i t y a s S e c r e

t a r y o f J u s t i c e ; E D U A R D O E R M I T A , i n h i s c a p a c i t y a s E x e c u t i v e

S e c r e t a r y ; R O N A L D O P U N O , i n h i s c a p a c i t y a s S e c r e t a r y o f t h e I

n t e r i o r a n d L o c a l G o v e r n m e n t ; S E R G I O A P O S T O L , i n h i s c a p a c i t y

a s P r e s i d e n t i a l L e g a l C o u n s e l ; a n d L / C P L . D A N I E L S M I T H , Respondents. X - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X

JOVITO R. SALONGA, WIGBERTO E. TAADA, JOSE DE LA RAMA, EMILIO C. CAPULONG, H. HARRY L. ROQUE, JR., FLORIN HILBAY, and BENJAMIN POZON, Petitioners, - versus -

G.R. No. 176051

DANIEL SMITH, SECRETARY RAUL GONZALEZ, PRESIDENTIAL LEGAL COUNSEL SERGIO APOSTOL, SECRETARY RONALDO PUNO, SECRETARY ALBERTO ROMULO, The Special th 16 Division of the COURT OF APPEALS, and all persons acting in their capacity, Respondents. X - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X BAGONG ALYANSANG MAKABAYAN ( B A Y A N ) , r e p r e s e n t e d b y D r . C a r o l A r a u l l G.R. No. 176222

o ; G A B R I E L A , r e p r e s e n t e d b y E m e r e n c i a n a d e J e s u s ; B A Y A N M U N A ,

r e p r e s e n t e d b y R e p . S a t u r O c a m p o ; G A B R I E L A W O M E N S P A R T Y , r e p r

e s e n t e d b y R e p . L i z a M a z a ; K I L U S A N G M A Y O U N O ( K M U ) , r e p r e s e n t e

d b y E l m e r L a b o g ; K I L U S A N G M A G B U B U K I D N G P I L I P I N A S ( K M P ) , r e p r

e s e n t e d b y W i l l y M a r b e l l a ; L E A G U E O F F I L I P I N O S T U D E N T S ( L F S ) ,

r e p r e s e n t e d b y V e n c e r C r i s o s t o m o ; a n d T H E P U B L I C I N T E R E S T L A W

C E N T E R , r e p r e s e n t e d b y A t t y . R a c h e l P a s t o r e s ,

Petitioners,

- versus -

P R E S I D E N T

G L O R I A M A C A P A G A L A R R O Y O , i n h e r c a p a c i t y a s c o n c u r r e n t D e f e n s

e S e c r e t a r y , E X E C U T I V E S E C R E T A R Y E D U A R D O E R M I T A , F O R E I G N A F F A I

R S S E C R E T A R Y A L B E R T O R O M U L O , J U S T I C E S E C R E T A R Y R A U L G O N Z A L E Z ,

A N D I N T E R I O R A N D L O C A L G O V E R N M E N T S E C R E T A R Y R O N A L D O P U N O , Respondents. Promulgated: February 11, 2009 X ---------------------------------------------------------------------------------------- X

DECISION AZCUNA, J.: These are petitions for certiorari, etc. as special civil actions and/or for review of the Decision of the Court of Appeals in Lance Corporal Daniel J. Smith v. Hon. Benjamin T. Pozon, et al. , in CA-G.R. SP No. 97212, dated January 2, 2007. The facts are not disputed. Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the United States Armed Forces. He was charged with the crime of rape committed against a Filipina, petitioner herein, sometime on November 1, 2005, as follows: The undersigned accused LCpl. Daniel Smith, Ssgt. Chad Brian Carpentier, Dominic Duplantis, Keith Silkwood and Timoteo L. Soriano, Jr. of the crime of Rape under Article 266-A of the Revised Penal Code, as amended by Republic Act 8353, upon a complaint under oath filed by Suzette S. Nicolas, which is attached hereto and made an integral part hereof as Annex A, committed as follows: That on or about the First (1 ) day of November 2005, inside the Subic Bay Freeport Zone, Olongapo City and within the jurisdiction of this Honorable Court, the above-named accuseds (sic), being then members of the United States Marine Corps, except Timoteo L. Soriano, Jr., conspiring, confederating together and mutually helping one another, with lewd design and by means of force, threat and intimidation, with abuse of superior strength and taking advantage of the intoxication of the victim, did then and there willfully, unlawfully and feloniously sexually abuse and have sexual intercourse with or carnal knowledge of one Suzette S. Nicolas, a 22-year old unmarried woman inside a Starex Van with Plate No. WKF-162, owned by Starways Travel and Tours, with Office address at 8900 P. Victor St., Guadalupe, Makati City, and driven by accused Timoteo L. Soriano, Jr., against the will and consent of the said Suzette S. Nicolas, to her damage and prejudice. CONTRARY TO LAW.
[1] st

Pursuant to the Visiting Forces Agreement (VFA) between the Republic of the Philippines and the United States, entered into on February 10, 1998, the United States, at its request, was granted custody of defendant Smith pending the proceedings. During the trial, which was transferred from the Regional Trial Court (RTC) of Zambales to the RTC of Makati for security reasons, the United States Government faithfully complied with its undertaking to bring defendant Smith to the trial court every time his presence was required. On December 4, 2006, the RTC of Makati, following the end of the trial, rendered its Decision, finding defendant Smith guilty, thus: WHEREFORE, premises considered, for failure of the prosecution to adduce sufficient evidence against accused S/SGT. CHAD BRIAN CARPENTER, L/CPL. KEITH SILKWOOD AND L/CPL. DOMINIC DUPLANTIS, all of the US Marine Corps assigned at the USS Essex, are hereby ACQUITTED to the crime charged. The prosecution having presented sufficient evidence against accused L/CPL. DANIEL J. SMITH, also of the US Marine Corps at the USS Essex, this Court hereby finds him GUILTY BEYOND REASONABLE DOUBT of the crime of RAPE defined under Article 266-A, paragraph 1 (a) of the Revised Penal Code, as amended by R.A. 8353, and, in accordance with Article 266-B, first paragraph thereof, hereby sentences him to suffer the penalty of reclusion perpetua together with the accessory penalties provided for under Article 41 of the same Code.

Pursuant to Article V, paragraph No. 10, of the Visiting Forces Agreement entered into by the Philippines and the United States, accused L/CPL. DANIEL J. SMITH shall serve his sentence in the facilities that shall, thereafter, be agreed upon by appropriate Philippine and United States authorities. Pending agreement on such facilities, accused L/CPL. DANIEL J. SMITH is hereby temporarily committed to the Makati City Jail. Accused L/CPL. DANIEL J. SMITH is further sentenced to indemnify complainant SUZETTE S. NICOLAS in the amount of P50,000.00 as compensatory damages plusP50,000.00 as moral damages. SO ORDERED.
[2]

As a result, the Makati court ordered Smith detained at the Makati jail until further orders. On December 29, 2006, however, defendant Smith was taken out of the Makati jail by a contingent of Philippine law enforcement agents, purportedly acting under orders of the Department of the Interior and Local Government, and brought to a facility for detention under the control of the United States government, provided for under new agreements between the Philippines and the United States, referred to as the Romulo-Kenney Agreement of December 19, 2006 which states: The Government of the Republic of the Philippines and the Government of the United States of America agree that, in accordance with the Visiting Forces Agreement signed between our two nations, Lance Corporal Daniel J. Smith, United States Marine Corps, be returned to U.S. military custody at the U.S. Embassy in Manila. (Sgd.) KRISTIE A. KENNEY Representative of the United States of America DATE: 12-19-06 (Sgd.) ALBERTO G. ROMULO Representative of the Republic of the Philippines DATE: December 19, 2006__

and the Romulo-Kenney Agreement of December 22, 2006 which states: The Department of Foreign Affairs of the Republic of the Philippines and the Embassy of the United States of America agree that, in accordance with the Visiting Forces Agreement signed between the two nations, upon transfer of Lance Corporal Daniel J. Smith, United States Marine Corps, from the Makati City Jail, he will be detained at the first floor, Rowe (JUSMAG) Building, U.S. Embassy Compound in a room of approximately 10 x 12 square feet. He will be guarded round the clock by U.S. military personnel. The Philippine police and jail authorities, under the direct supervision of the Philippine Department of Interior and Local Government (DILG) will have access to the place of detention to ensure the United States is in compliance with the terms of the VFA.

The matter was brought before the Court of Appeals which decided on January 2, 2007, as follows: WHEREFORE, all the foregoing considered, we resolved to DISMISS the petition for [3] having become moot. Hence, the present actions. The petitions were heard on oral arguments on September 19, 2008, after which the parties submitted their memoranda. Petitioners contend that the Philippines should have custody of defendant L/CPL Smith because, first of all, the VFA is void and unconstitutional. This issue had been raised before, and this Court resolved in favor of the constitutionality of the VFA. This [4] was in Bayan v. Zamora, brought by Bayan, one of petitioners in the present cases.

Against the barriers of res judicata vis--vis Bayan, and stare decisis vis--vis all the parties, the reversal of the previous ruling is sought on the ground that the issue is of primordial importance, involving the sovereignty of the Republic, as well as a specific mandate of the Constitution. The provision of the Constitution is Art. XVIII, Sec. 25 which states: Sec. 25. After the expiration in 1991 of the Agreement between 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.

The reason for this provision lies in history and the Philippine experience in regard to the United States military bases in the country. It will be recalled that under the Philippine Bill of 1902, which laid the basis for the Philippine Commonwealth and, eventually, for the recognition of independence, the United States agreed to cede to the Philippines all the territory it acquired from Spain under the Treaty of Paris, plus a few islands later added to its realm, except certain naval ports and/or military bases and facilities, which the United States retained for itself. This is noteworthy, because what this means is that Clark and Subic and the other places in the Philippines covered by the RP-US Military Bases Agreement of 1947 were not Philippine territory, as they were excluded from the cession and retained by the US. Accordingly, the Philippines had no jurisdiction over these bases except to the extent allowed by the United States. Furthermore, the RP-US Military Bases Agreement was never advised for ratification by the United States Senate, a disparity in treatment, because the Philippines regarded it as a treaty and had it concurred in by our Senate. Subsequently, the United States agreed to turn over these bases to the Philippines; and with the expiration of the RP-US Military Bases Agreement in 1991, the territory covered by these bases were finally ceded to the Philippines. To prevent a recurrence of this experience, the provision in question was adopted in the 1987 Constitution. The provision is thus designed to ensure that any agreement allowing the presence of foreign military bases, troops or facilities in Philippine territory shall be equally binding on the Philippines and the foreign sovereign State involved. The idea is to prevent a recurrence of the situation in which the terms and conditions governing the presence of foreign armed forces in our territory were binding upon us but not upon the foreign State. Applying the provision to the situation involved in these cases, the question is whether or not the presence of US Armed Forces in Philippine territory pursuant to the VFA is allowed under a treaty duly concurred in by the Senate xxx and recognized as a treaty by the other contracting State. This Court finds that it is, for two reasons. First, as held in Bayan v. Zamora, the VFA was duly concurred in by the Philippine Senate and has been recognized as a treaty by the United States as attested and certified by the duly authorized representative of the United States government. The fact that the VFA was not submitted for advice and consent of the United States Senate does not detract from its status as a binding international agreement or treaty recognized by the said State. For this is a matter of internal United States law. Notice can be taken of the internationally known practice by the United Statesof submitting to its Senate for advice and consent agreements that are policymaking in nature, whereas those that carry out or further implement these policymaking agreements are merely submitted to Congress, under the provisions of [6] the so-called CaseZablocki Act, within sixty days from ratification. The second reason has to do with the relation between the VFA and the RP-US Mutual Defense Treaty of August 30, 1951. This earlier agreement was signed and duly ratified with the concurrence of both the Philippine Senate and the United States Senate.
[5]

The RP-US Mutual Defense Treaty states:

[7]

MUTUAL DEFENSE TREATY BETWEEN THE REPUBLIC OF THE PHILIPPINES AND THE UNITED STATES OF AMERICA. Signed at Washington, August 30, 1951. The Parties of this Treaty Reaffirming their faith in the purposes and principles of the Charter of the United Nations and their desire to live in peace with all peoples and all governments, and desiring to strengthen the fabric of peace in the Pacific area. Recalling with mutual pride the historic relationship which brought their two peoples together in a common bond of sympathy and mutual ideals to fight side-by-side against imperialist aggression during the last war. Desiring to declare publicly and formally their sense of unity and their common determination to defend themselves against external armed attack, so that no potential aggressor could be under the illusion that either of them stands alone in the Pacific area. Desiring further to strengthen their present efforts for collective defense for the preservation of peace and security pending the development of a more comprehensive system of regional security in the Pacific area. Agreeing that nothing in this present instrument shall be considered or interpreted as in any way or sense altering or diminishing any existing agreements or understandings between the Republic of the Philippines and the United States of America. Have agreed as follows: ARTICLE I. The parties undertake, as set forth in the Charter of the United Nations, to settle any international disputes in which they may be involved by peaceful means in such a manner that international peace and security and justice are not endangered and to refrain in their international relation from the threat or use of force in any manner inconsistent with the purposes of the United Nations. ARTICLE II. In order more effectively to achieve the objective of this Treaty, the Parties separately and jointly by self-help and mutual aid will maintain and develop their individual and collective capacity to resist armed attack. ARTICLE III. The Parties, through their Foreign Ministers or their deputies, will consult together from time to time regarding the implementation of this Treaty and whenever in the opinion of either of them the territorial integrity, political independence or security of either of the Parties is threatened by external armed attack in the Pacific. ARTICLE IV. Each Party recognizes that an armed attack in the Pacific area on either of the parties would be dangerous to its own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional processes. Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security Council of the United Nations. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security. ARTICLE V. For the purpose of Article IV, an armed attack on either of the Parties is deemed to include an armed attack on the metropolitan territory of either of the Parties, or on the island territories under its jurisdiction in the Pacific Ocean, its armed forces, public vessels or aircraft in the Pacific. ARTICLE VI. This Treaty does not affect and shall not be interpreted as affecting in any way the rights and obligations of the Parties under the Charter of the United Nations or the responsibility of the United Nations for the maintenance of international peace and security.

ARTICLE VII. This Treaty shall be ratified by the Republic of the Philippines and the United Nations of America in accordance with their respective constitutional processes and will come into force when instruments of ratification thereof have been exchanged by them at Manila. ARTICLE VIII. This Treaty shall remain in force indefinitely. Either Party may terminate it one year after notice has been given to the other party. IN WITHNESS WHEREOF the undersigned Plenipotentiaries have signed this Treaty. DONE in duplicate at Washington this thirtieth day of August, 1951. For the Republic of the Philippines: (Sgd.) CARLOS P. ROMULO (Sgd.) JOAQUIN M. ELIZALDE (Sgd.) VICENTE J. FRANCISCO (Sgd.) DIOSDADO MACAPAGAL For the United States of America: (Sgd.) DEAN ACHESON (Sgd.) JOHN FOSTER DULLES (Sgd.) TOM CONNALLY [8] (Sgd.) ALEXANDER WILEY

Clearly, therefore, joint RP-US military exercises for the purpose of developing the capability to resist an armed attack fall squarely under the provisions of the RP-US Mutual Defense Treaty. The VFA, which is the instrument agreed upon to provide for the joint RP-US military exercises, is simply an implementing agreement to the main RP-US Military Defense Treaty. The Preamble of the VFA states: The Government of the United States of America and the Government of the Republic of the Philippines, Reaffirming their faith in the purposes and principles of the Charter of the United Nations and their desire to strengthen international and regional security in the Pacific area; Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951; Noting that from time to time elements of the United States armed forces may visit the Republic of the Philippines; Considering that cooperation between the United States and the Philippines promotes their common security interests; the Republic of

Recognizing the desirability of defining the treatment of United States personnel visiting the Republic of the Philippines; Have agreed as follows:
[9]

Accordingly, as an implementing agreement of the RP-US Mutual Defense Treaty, it was not necessary to submit the VFA to the US Senate for advice and consent, but merely to the US Congress under the CaseZablocki Act within 60 days of its ratification. It is for this reason that the US has certified that it recognizes the VFA as a binding international agreement, i.e., a treaty, and this substantially complies with the requirements of Art. XVIII, Sec. [10] 25 of our Constitution. The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue of the fact that the presence of the US Armed Forces through the VFA is a presence allowed under the RP -US Mutual Defense Treaty. Since the RP-US Mutual Defense Treaty itself has been ratified and concurred in by both the Philippine Senate and the US Senate, there is no violation of the Constitutional provision resulting from such presence.

The VFA being a valid and binding agreement, the parties are required as a matter of international law to abide by its terms and provisions. The VFA provides that in cases of offenses committed by the members of the US Armed Forces in the Philippines, the following rules apply:

Article V Criminal Jurisdiction xxx 6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings. United States military authorities shall, upon formal notification by the Philippine authorities and without delay, make such personnel available to those authorities in time for any investigative or judicial proceedings relating to the offense with which the person has been charged. In extraordinary cases, the Philippine Government shall present its position to the United States Government regarding custody, which the United States Government shall take into full account. In the event Philippine judicial proceedings are not completed within one year, the United States shall be relieved of any obligations under this paragraph. The one year period will not include the time necessary to appeal. Also, the one year period will not include any time during which scheduled trial procedures are delayed because United States authorities, after timely notification by Philippine authorities to arrange for the presence of the accused, fail to do so. Petitioners contend that these undertakings violate another provision of the Constitution, namely, that providing for the exclusive power of this Court to adopt rules of procedure for all courts in the Philippines (Art. VIII, Sec. 5[5]). They argue that to allow the transfer of custody of an accused to a foreign power is to provide for a different rule of procedure for that accused, which also violates the equal protection clause of the Constitution (Art. III, Sec. 1.). Again, this Court finds no violation of the Constitution. The equal protection clause is not violated, because there is a substantial basis for a different treatment of a [11] member of a foreign military armed forces allowed to enter our territory and all other accused. The rule in international law is that a foreign armed forces allowed to enter ones territory is immune from local jurisdiction, except to the extent agreed upon. The Status of Forces Agreements involving foreign military units around the world vary in terms and conditions, according to the situation of the parties involved, and reflect their bargaining power. But the principle remains, i.e., the receiving State can exercise jurisdiction over the forces of the [12] sending State only to the extent agreed upon by the parties. As a result, the situation involved is not one in which the power of this Court to adopt rules of procedure is curtailed or violated, but rather one in which, as is normally encountered around the world, the laws (including rules of procedure) of one State do not extend or apply except to the extent agreed upon to subjects of another State due to the recognition of extraterritorial immunity given to such bodies as visiting foreign armed forces. Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or some aspects of jurisdiction (such as custody), in relation to long-recognized subjects of such immunity like Heads of State, diplomats and members of the armed forces contingents of a foreign State allowed to enter another States territory. On the contrary, the Constitution states that the Philippines adopts the generally accepted principles of international law as part of the law of the land. (Art. II, Sec. 2). Applying, however, the provisions of VFA, the Court finds that there is a different treatment when it comes to detention as against custody. The moment the accused has to be detained, e.g., after conviction, the rule that governs is the following provision of the VFA: Article V Criminal Jurisdiction xxx

Sec. 10. The confinement or detention by Philippine authorities of United States personnel shall be carried out in facilities agreed on by appropriate Philippines and United Statesauthorities. United States personnel serving sentences in the Philippines shall have the right to visits and material assistance.

It is clear that the parties to the VFA recognized the difference between custody during the trial and detention after conviction, because they provided for a specific arrangement to cover detention. And this specific arrangement clearly states not only that the detention shall be carried out in facilities agreed on by authorities of both parties, but also that the detention shall be by Philippine authorities. Therefore, the Romulo-Kenney Agreements of December 19 and 22, 2006, which are agreements on the detention of the accused in the United States Embassy, are not in accord with the VFA itself because such detention is not by Philippine authorities. Respondents should therefore comply with the VFA and negotiate with representatives of the United States towards an agreement on detention facilities under Philippine authorities as mandated by Art. V, Sec. 10 of the VFA. Next, the Court addresses the recent decision of the United States Supreme Court in Medellin v. Texas ( 552 US ___ No. 06-984, March 25, 2008), which held that treaties entered into by the United States are not automatically part of their domestic law unless these treaties are self-executing or there is an implementing legislation to make them enforceable. On February 3, 2009, the Court issued a Resolution, thus: G.R. No. 175888 (Suzette Nicolas y Sombilon v. Alberto Romulo, et al.); G.R. No. 176051 (Jovito R. Salonga, et al. v. Daniel Smith, et al.); and G.R. No. 176222 (Bagong Alyansang Makabayan [BAYAN], et al. v. President Gloria Macapagal-Arroyo, et al.). The parties, including the Solicitor General, are required to submit within three (3) days a Comment/Manifestation on the following points: 1. What is the implication on the RP-US Visiting Forces Agreement of the recent US Supreme Court decision in Jose Ernesto Medellin v. Texas, dated March 25, 2008, to the effect that treaty stipulations that are not self-executory can only be enforced pursuant to legislation to carry them into effect; and that, while treaties may comprise international commitments, they are not domestic law unless Congress has enacted implementing statutes or the treaty itself conveys an intention that it be self -executory and is ratified on these terms? Whether the VFA is enforceable in the US as domestic law, either because it is selfexecutory or because there exists legislation to implement it. Whether the RP-US Mutual Defense Treaty of August 30, 1951 was concurred in by the US Senate and, if so, is there proof of the US Senate advice and consent resolution? Peralta, J., no part.

2.

3.

After deliberation, the Court holds, on these points, as follows: First, the VFA is a self-executing Agreement, as that term is defined in Medellin itself, because the parties intend its provisions to be enforceable, precisely because the Agreement is intended to carry out obligations and undertakings under the RP-US Mutual Defense Treaty. As a matter of fact, the VFA has been implemented and executed, with the US faithfully complying with its obligation to produce L/CPL Smith before the court during the trial. Secondly, the VFA is covered by implementing legislation, namely, the Case-Zablocki Act, USC Sec. 112(b), inasmuch as it is the very purpose and intent of the US Congress that executive agreements registered under this Act within 60 days from their ratification be immediately implemented. The parties to these present cases do not question the fact that the VFA has been registered under the Case-Zablocki Act. In sum, therefore, the VFA differs from the Vienna Convention on Consular Relations and the Avena decision of the International Court of Justice (ICJ), subject matter of the Medellin decision. The Convention and the ICJ decision are not self-executing and are not registrable under the Case-Zablocki Act, and thus lack legislative implementing authority.

Finally, the RP-US Mutual Defense Treaty was advised and consented to by the US Senate on March 20, nd 1952, as reflected in the US Congressional Record, 82 Congress, Second Session, Vol. 98 Part 2, pp. 2594-2595. The framers of the Constitution were aware that the application of international law in domestic courts varies from country to country. As Ward N. Ferdinandusse states in his Treatise, DIRECT APPLICATION OF INTERNATIONAL CRIMINAL LAW IN NATIONAL COURTS, some countries require legislation whereas others do not. It was not the intention of the framers of the 1987 Constitution, in adopting Article XVIII, Sec. 25, to require the other contracting State to convert their system to achieve alignment and parity with ours. It was simply required that the treaty be recognized as a treaty by the other contracting State. With that, it becomes for both parties a binding international obligation and the enforcement of that obligation is left to the normal recourse and processes under international law. Furthermore, as held by the US Supreme Court in Weinberger v. Rossi, an executive agreement is a treaty within the meaning of that word in international law and constitutes enforceable domestic law vis-vis the United States. Thus, the US Supreme Court in Weinberger enforced the provisions of the executive agreement granting preferential employment to Filipinos in the US Bases here.
[13]

Accordingly, there are three types of treaties in the American system: 1. Art. II, Sec. 2 treaties These are advised and consented to by the US Senate in accordance with Art. II, Sec. 2 of the US Constitution. ExecutiveCongressional Agreements: These are joint agreements of the President and Congress and need not be submitted to the Senate. Sole Executive Agreements. These are agreements entered into by the President. They are to be submitted to Congress within sixty (60) days of ratification under the provisions of the CaseZablocki Act, after which they are recognized by the Congress and may be implemented.

2.

3.

As regards the implementation of the RP-US Mutual Defense Treaty, military aid or assistance has been given under it and this can only be done through implementing legislation. The VFA itself is another form of implementation of its provisions. WHEREFORE, the petitions are PARTLY GRANTED, and the Court of Appeals Decision in CA-G.R. SP No. 97212 dated January 2, 2007 isMODIFIED. The Visiting Forces Agreement (VFA) between the Republic of the Philippines and the United States, entered into on February 10, 1998, is UPHELDas constitutional, but the RomuloKenney Agreements of December 19 and 22, 2006 are DECLARED not in accordance with the VFA, and respondent Secretary of Foreign Affairs is hereby ordered to forthwith negotiate with the United States representatives for the appropriate agreement on detention facilities under Philippine authorities as provided in Art. V, Sec. 10 of the VFA, pending which the status quo shall be maintained until further orders by this Court. The Court of Appeals is hereby directed to resolve without delay the related matters pending therein, namely, the petition for contempt and the appeal of L/CPL Daniel Smith from the judgment of conviction. No costs. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 172986 October 2, 2009 ARNULFO A. AGUILAR, Petitioner, vs. COURT OF APPEALS, CIVIL SERVICE COMMISSION and COMMISSION ON ELECTIONS, Respondents. DECISION

BRION, J.: The present petition provides an occasion to revisit the doctrine that perfection of an appeal within the reglementary period is not only mandatory but also jurisdictional; failure to perfect the appeal renders the challenged decision final and executory, and deprives the appellate court or tribunal of the jurisdiction to entertain the appeal and to alter the final decision. THE CASE 1 Before us is the petition for review on certiorari filed by petitioner Arnulfo A. Aguilar (petitioner) to reverse and set 2 3 aside the decision dated September 23, 2004 and resolution dated June 1, 2006 of the Special Former Eighth Division of the Court of Appeals (CA) in CA-G.R. SP No. 68853 entitled "Arnulfo A. Aguilar v. Civil Service Commission and Commission on Elections." FACTUAL BACKGROUND The facts of the case, as gathered from the records, are briefly summarized below. During the 1998 National and Local Elections, the petitioner, an Election Officer (EO) IV of the Commission on Elections (COMELEC)-Navotas, was designated as Acting EO and Chairman of the Municipal Board of Canvassers (MBC) of San Pedro, Laguna. His duties included the canvassing of election returns, the preparation of the certificates of canvass of votes, and the proclamation of the winning candidates. At 6 oclock in the evening of May 11, 1998, the MBC convened in the Session Hal l of the Sangguniang Bayan, San Pedro, Laguna, to receive and tabulate the election returns and certificates of canvass. At about 1:30 a.m. of May 15, 1998, the MBC resolved to suspend its proceedings and to continue at 3:30 p.m. that same day. The petitioner failed to report back to his post when the MBC resumed the canvassing. The MBC eventually proclaimed the winners without the petitioners participation due to his absence. 4 On June 2, 1998, Geronima F. Abellera (Abellera) filed a letter-complaint against the petitioner. Abellera questioned the validity of the proclamation of the winning candidates, since the certificates of canvass and proclamation did not bear the signature of the petitioner as MBC Chairman. 5 On June 11, 1998, then COMELEC Executive Director Resurreccion Z. Borra directed the petitioner to explain in writing his alleged abandonment of position as Chairman of the MBC. 6 On June 16, 1998, the petitioner responded to the directive through a memorandum. He explained that he did not abandon his post, but he was absent due to illness and that he duly requested relief from duty from the COMELEC 7 Regional Director. The COMELEC en banc referred the case to its Law Department for appropriate action. On February 4, 1999, the petitioner was formally charged with Ignorance of the Law, Grave Misconduct, Neglect of Duty, Abandonment and Conduct Unbecoming a Public Officer Prejudicial to the Interest of Public Service for his 8 failure to report back to his post as Chairman of the MBC. He was also preventively suspended for sixty (60) days pending investigation of the case. In his formal answer dated March 12, 1999, the petitioner explained that his failure to return to his post was due to illness, physical exhaustion, and death threat from the militant group "Alex Boncayao Brigade" (ABB). The petitioner also waived his right to a formal investigation. Despite the petitioners waiver, the COMELEC conducted a formal investigation. THE COMELEC RULING The COMELEC, through Resolution No. 99-1067 dated May 31, 1999, found the petitioner guilty of Abandonment, Neglect of Duty and Conduct Unbecoming a Public Officer, and imposed on him the penalty of suspension from the 9 service for six (6) months. 10 The petitioner received a copy of Resolution No. 99-1067 on August 26, 1999. On August 30, 1999, the petitioner moved, through a Memorandum, for the reconsideration of the COMELEC resolution and the lifting of his 11 12 suspension, but the COMELEC denied the motion in Resolution No. 99-1805 dated October 11, 1999. Instead of filing an appeal with the Civil Service Commission (CSC), the petitioner sought, on November 26, 1999, the reconsideration of his suspension through another Memorandum, but the COMELEC denied the motion in 13 Resolution No. 00-0215 dated January 27, 2000. The petitioner then filed an Urgent Motion for Reinvestigation, but 14 the COMELEC likewise denied this motion under Resolution No. 00-0399 dated February 17, 2000. On April 28, 2000, the petitioner filed his Notice of Appeal together with his Appeal Memorandum with the CSC. The petitioner alleged that there was no substantial evidence to hold him liable for the offenses charged against him, and that there was failure to comply with the requirements of due process. THE CSC RULING 15 On August 17, 2001, the CSC issued Resolution No. 011396 dismissing the petitioners appeal. The CSC found that the petitioner failed to provide evidentiary support for the reasons he gave for his failure to return to his post. The CSC noted that he failed to submit the required medical certificate showing that he was sick at that time, nor did he communicate with other members of the MBC when it resumed the canvassing in the afternoon of May 15, 1998 until the completion of the canvass on May 16, 1998. It also noted that the alleged ABB death threat did not exist, since the ABB letter simply warned the petitioner not to commit any irregularity that would impair the results of the election. The CSC found no merit in the claimed denial of due process, since the right to the assistance of counsel is not an indispensable requirement of due process, except during custodial investigation and during the trial of the accused. The CSC, however, modified COMELEC Resolution No. 99-1067 by finding the petitioner guilty of Gross Neglect of Duty and Conduct Grossly Prejudicial to the Best Interest of the Service and imposing on him the penalty of dismissal

from the service. The CSC observed that the petitioners act of leaving his post as Election Officer and Chairman of the MBC was a serious breach that endangered the public welfare, at the same time that it prejudiced the public service; it affected the efficient canvassing of votes and put into question the legality of the winners proclamation. The petitioner moved for a reconsideration of CSC Resolution No. 011396, but the CSC denied the motion in 16 Resolution No. 20015 dated January 3, 2002. The petitioner then elevated his case to the CA through a petition for review under Rule 43 of the Rules of Court. He prayed that all the resolutions of the CSC and the COMELEC be set aside, and the penalty of dismissal imposed upon him be lifted for lack of factual and legal basis. THE CA RULING On September 23, 2004, the CA rendered a decision dismissing the petition on the ground that CSC Resolution No. 011396 had become final and executory without any timely motion for reconsideration having been filed, and could therefore no longer be modified, altered or reversed. The appellate court found that the petitioners motion for reconsideration with the CSC was filed only on October 1, 2001, more than 15 days from September 7, 2001, when the petitioner received a copy of CSC Resolution No. 011396. The petitioner moved but failed to secure reconsideration of the CA decision; hence, he came to us through the present petition. THE PETITION and THE PARTIES POSITIONS The petitioner prays for judicial leniency because at stake is not only his employment with the COMELEC but also his means of livelihood. He contends that he filed his motion for reconsideration on September 25, 2001 as indicated by the date stamped on the motion, not October 1, 2001 as declared by the CA. He further argues that when he filed his motion for reconsideration on September 25, 2001 it was only one day late since the fifteen-day period from September 7, 2001, the day he received CSC Resolution No. 011396, fell on September 22, 2001, a Saturday, and he had until September 24, 2001, a Monday, to file his motion. The petitioner maintains that he is not guilty of abandonment or neglect of duty because his inability to report back for the scheduled resumption of canvass was justified by sickness and death threats from the ABB. In addition, he claims that his request for temporary relief from duty was granted by Atty. Milagros Somera, COMELEC Regional Director for Region IV. The respondents CSC and COMELEC, through the Office of the Solicitor General (OSG), counter-argue that the petition is defective in form and should be dismissed outright, since it improperly impleads the CA as party respondent in violation of Section 4 of Rule 45 of the Rules of Court. The OSG defends the decision of the CA to dismiss the petition by pointing out that the petitioner filed his motion for reconsideration of CSC Resolution No. 011396 beyond the fifteen-day reglementary period. The OSG further submits that the CSC correctly found the petitioner guilty of Gross Neglect of Duty and Conduct Grossly Prejudicial to the Best Interest of the Service, and correctly imposed the penalty of dismissal from the service. It insists that the petitioners failure to perform his assigned duties and legal obligations prejudiced the public service because it hampered the smooth canvassing of votes and impaired the integrity of the results of the canvassing. OUR RULING We find the petition meritorious. We deal first with the issue of form raised by the respondents. Formal defects in petitions are given liberal treatment to dispose of cases on the merits rather than on a technicality We agree with the OSG that the petition erroneously impleads the CA. The correct procedure, as required by Section 4, Rule 45 of the 1997 Rules of Court, is not to implead the lower court that rendered the assailed 17 decision. However, inappropriately impleading the lower court as respondent in the petition for review on certiorari does not automatically mean the dismissal of the appeal; the rule merely authorizes the dismissal of the petition, as 18 19 its violation is a mere formal defect, and even as such is not uncommon. In those cases we merely called the petitioners attention to the defect and proceeded to resolve the cases on their merits. We find no reason why we should not afford the same liberal treatment to the present case. While, unquestionably, we have the discretion to dismiss the appeal for being defective, sound judicial policy dictates that cases are better 20 disposed on the merits rather than on technicality, particularly when the latter approach may result in injustice. This 21 is in accordance with Section 6, Rule 1 of the Rules of Court which encourages a reading of the procedural 22 requirements in a manner that will help secure and not defeat the ends of justice. We now proceed to the main issue, which simply is, did the CA err in dismissing the petitioners petition for review before it for the late filing of the petitioners motion for reconsideration with the CSC? We answer in the affirmative. Finality of Judgment Due to the Failure to Seasonably File a Motion for Reconsideration The CA erred in finding that the petitioners motion for reconsideration with the CSC was filed only on October 1, 2001, or nine (9) days beyond September 22, 2001 deadline. Our own examination of the records shows that the 23 date of filing with the CSC was September 25, 2001, as indicated by date stamped on the motion. Since September 22, 2001 fell on a Saturday, the petitioner actually had until September 24, 2001, a Monday, to file the motion for 24 reconsideration, pursuant to Section 1, Rule 22 of the Rules of Court. Thus, the petitioner was one day late when he filed his motion for reconsideration on September 25, 2001.

On this point, the CA conclusion is correct although it erroneously recognized October 1, 2001 as the date of filing of the motion. Whether with our count or with the CAs, the same result is achieved; the motion was not filed on time, resulting in the finality of the judgment sought to be reconsidered. Other Reasons for Finality; the Doctrine of Finality of Judgments Even if we liberally treat the petitioners one-day tardiness in the filing of his motion for reconsideration, the COMELEC decision nevertheless lapsed into finality for reasons subsequent to the motion for reconsideration. Although the parties did not put these subsequent developments in issue, we are not prevented from delving into 25 these developments, since they affect the jurisdiction of the CSC to entertain the appeal. Jurisprudence teaches us that the perfection of an appeal within the statutory or reglementary period is not only 26 mandatory, but also jurisdictional. This rule is founded upon the principle that the right to appeal is not part of due process of law but is a mere statutory privilege to be exercised only in the manner and in accordance with the 27 provisions of the law. Failure to interpose a timely appeal (or a motion for reconsideration) renders the appealed decision, order or award final and executory and this deprives the appellate body of any jurisdiction to alter the final 28 29 judgment, more so, to entertain the appeal. 30 Rule III of CSC Resolution No. 991936, otherwise known as the Uniform Rules on Administrative Cases in the Civil Service (URACCS), provides the following remedies to a party adversely affected by the decision of the disciplining authority: Section 38. Filing of Motion for Reconsideration. The party adversely affected by the decision may file a motion for reconsideration with the disciplining authority who rendered the same within fifteen (15) days from receipt thereof. xxx Section 41. Limitation. Only one motion for reconsideration shall be entertained. xxx Section 43. Filing of Appeals. Decisions of heads of departments, agencies, provinces, cities, municipalities and other instrumentalities imposing a penalty exceeding thirty (30) days suspension or fine in an amount exceeding thirty days salary, may be appealed to the Commission Proper within a period of fifteen (15) days from receipt thereof. x x x (Emphasis supplied) In the present case, the petitioner, instead of filing a proper appeal with the CSC, filed a second motion for reconsideration with the COMELEC on November 26, 1999 after the denial of his first motion for reconsideration in COMELEC Resolution No. 99-1805 dated October 11, 1999. The petitioner also subsequently filed an Urgent Motion for Reinvestigation. When the petitioner filed his Notice of Appeal with the CSC on April 28, 2000, more than six (6) months had lapsed, and the CSC should have forthwith denied his Notice of Appeal for non-compliance with Rule III of the URACCS. The petitioner's Notice of Appeal on April 28, 2000, having been filed beyond the fifteen-day reglementary period, did not toll COMELEC Resolution No. 99-1067 from becoming final and executory. The settled and firmly established rule is that a decision that has acquired finality becomes immutable and unalterable. This quality of immutability precludes the modification of the judgment, even if the modification is meant to correct erroneous conclusions of fact and law. And this postulate holds true whether the modification is made by 31 the court that rendered it or by the highest court in the land. The orderly administration of justice requires that, at the risk of occasional errors, the judgments/resolutions of a court must reach a point of finality set by the law. The noble purpose is to write finis to disputes once and for all. This is a fundamental principle in our justice system, without which no end to litigations will take place. Utmost respect and adherence to this principle must always be maintained by those who exercise the power of adjudication. Any act that violates such principle must immediately be struck 32 down. Indeed, the principle of conclusiveness of prior adjudications is not confined in its operation to the judgments 33 of courts, but extends as well to those of all other tribunals exercising adjudicatory powers. 1avvphi1 Being an immutable decision, COMELEC Resolution No. 99-1067 may no longer be modified, altered or changed. CSC Resolution No. 011396 which modified a final and executory judgment is a void judgment. As such, it is not entitled to the respect accorded to a valid judgment, but may be entirely disregarded or declared inoperative by any tribunal in which effect is sought to be given to it. It is attended by none of the consequences of a valid 34 adjudication. Thus, CSC Resolution No. 011396 finding the petitioner guilty of Gross Neglect of Duty and Conduct Grossly Prejudicial to the Best Interest of the Service, and the consequent penalty of dismissal from the service is rendered ineffectual. The petitioner is entitled to full backwages from the time he has duly served his six-month suspension under COMELEC Resolution No. 99-1067 until his actual reinstatement. WHEREFORE, premises considered, we hereby REVERSE and SET ASIDE the Decision of the Court of Appeals in CA-G.R. SP No. 68853 dated September 23, 2004. CSC Resolution No. 011396 dated August 17, 2001, having been issued in violation of the rule on immutability of decisions, is ANNULLED and SET ASIDE. Petitioner Arnulfo F. Aguilar is hereby REINSTATED to his former position as Election Officer IV after having duly served his six-month suspension under COMELEC Resolution No. 99-1067 dated May 31, 1999. He is entitled to backwages from the time he completed service of his suspension until his actual reinstatement. SO ORDERED. #19. Dep director something? REPRESENTATIVES GERARDO S. G.R. No. 143855

ESPINA, ORLANDO FUA, JR., PROSPERO AMATONG, ROBERT ACE S. BARBERS, RAUL M. GONZALES, PROSPERO PICHAY, JUAN MIGUEL ZUBIRI and FRANKLIN BAUTISTA, Petitioners, Present: CORONA, C.J., CARPIO, CARPIO MORALES, * VELASCO, JR.,

NACHURA, * LEONARDO-DE CASTRO, * - versus BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, * MENDOZA, and ** SERENO, JJ. HON. RONALDO ZAMORA, JR. (Executive Secretary), HON. MAR ROXAS (Secretary of Trade and Industry), HON. FELIPE MEDALLA (Secretary of National Economic and Development Authority), GOV. RAFAEL BUENAVENTURA (Bangko Sentral ng Pilipinas) and HON. LILIA BAUTISTA (Chairman, Securities and Exchange Commission), Respondents. Promulgated: September 21, 2010 x --------------------------------------------------------------------------------------- x DECISION ABAD, J.:

This case calls upon the Court to exercise its power of judicial review and determine the constitutionality of the Retail Trade Liberalization Act of 2000, which has been assailed as in breach of the constitutional mandate for the development of a self-reliant and independent national economy effectively controlled by Filipinos. The Facts and the Case On March 7, 2000 President Joseph E. Estrada signed into law Republic Act (R.A.) 8762, also known as the Retail Trade Liberalization Act of 2000. It expressly repealed R.A. 1180, which absolutely prohibited foreign nationals from engaging in the retail trade business. R.A. 8762 now allows them to do so under four categories: Category A Less than US$2,500,000.00 US$2,500,000.00 up but less than US$7,500,000.00 Exclusively for Filipino citizens and corporations wholly owned by Filipino citizens. For the first two years of R.A. 8762s effectivity, foreign ownership is allowed up to 60%. After the two-year period, 100% foreign equity shall be allowed. May be wholly owned by foreigners. Foreign investments for establishing a store in Categories B and C shall not be less than the equivalent in Philippine Pesos of US$830,000.00. May be wholly owned by foreigners.

Category B

Category C

US$7,500,000.00 or more

Category D

US$250,000.00 per store of foreign enterprises specializing in high-end

or luxury products

R.A. 8762 also allows natural-born Filipino citizens, who had lost their citizenship and now reside in the Philippines, to engage in the retail trade business with the same rights as Filipino citizens. On October 11, 2000 petitioners Magtanggol T. Gunigundo I, Michael T. Defensor, Gerardo S. Espina, Benjamin S. Lim, Orlando Fua, Jr., Prospero Amatong, Sergio Apostol, Robert Ace S. Barbers, Enrique Garcia, Jr., Raul M. Gonzales, Jaime Jacob, Apolinario Lozada, Jr., Leonardo Montemayor, Ma. Elena PalmaGil, Prospero Pichay, Juan Miguel Zubiri and Franklin Bautista, all members of the House of Representatives, filed the present petition, assailing the constitutionality of R.A. 8762 on the following grounds: First, the law runs afoul of Sections 9, 19, and 20 of Article II of the Constitution which enjoins the State to place the national economy under the control of Filipinos to achieve equal distribution of opportunities, promote industrialization and full employment, and protect Filipino enterprise against unfair competition and trade policies. Second, the implementation of R.A. 8762 would lead to alien control of the retail trade, which taken together with alien dominance of other areas of business, would result in the loss of effective Filipino control of the economy. Third, foreign retailers like Walmart and K-Mart would crush Filipino retailers and sari-sari store vendors, destroy self-employment, and bring about more unemployment. Fourth, the World Bank-International Monetary Fund had improperly imposed the passage of R.A. 8762 on the government as a condition for the release of certain loans. Fifth, there is a clear and present danger that the law would promote monopolies or combinations in restraint of trade. Respondents Executive Secretary Ronaldo Zamora, Jr., Trade and Industry Secretary Mar Roxas, National Economic and Development Authority (NEDA) Secretary Felipe Medalla, Bangko Sentral ng Pilipinas Gov. Rafael Buenaventura, and Securities and Exchange Commission Chairman Lilia Bautista countered that: First, petitioners have no legal standing to file the petition. They cannot invoke the fact that they are taxpayers since R.A. 8762 does not involve the disbursement of public funds. Nor can they invoke the fact that they are members of Congress since they made no claim that the law infringes on their right as legislators. Second, the petition does not involve any justiciable controversy. Petitioners of course claim that, as members of Congress, they represent the small retail vendors in their respective districts but the petition does not allege that the subject law violates the rights of those vendors. Third, petitioners have failed to overcome the presumption of constitutionality of R.A. 8762. Indeed, they could not specify how the new law violates the constitutional provisions they cite. Sections 9, 19, and 20 of Article II of the Constitution are not self-executing provisions that are judicially demandable. Fourth, the Constitution mandates the regulation but not the prohibition of foreign investments. It directs Congress to reserve to Filipino citizens certain areas of investments upon the recommendation of the NEDA and when the national interest so dictates. But the Constitution leaves to the discretion of the Congress whether or not to make such reservation. It does not prohibit Congress from enacting laws allowing the entry of foreigners into certain industries not reserved by the Constitution to Filipino citizens. The Issues Presented Simplified, the case presents two issues: 1. 8762; and 2. Whether or not petitioner lawmakers have the legal standing to challenge the constitutionality of R.A.

Whether or not R.A. 8762 is unconstitutional. The Courts Ruling

One. The long settled rule is that he who challenges the validity of a law must have a standing to do [1] so. Legal standing or locus standi refers to the right of a party to come to a court of justice and make such a challenge. More particularly, standing refers to his personal and substantial interest in that he has suffered or will [2] suffer direct injury as a result of the passage of that law. To put it another way, he must show that he has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some [3] burdens or penalties by reason of the law he complains of. Here, there is no clear showing that the implementation of the Retail Trade Liberalization Act prejudices [4] [5] petitioners or inflicts damages on them, either as taxpayers or as legislators. Still the Court will resolve the question they raise since the rule on standing can be relaxed for nontraditional plaintiffs like ordinary citizens, taxpayers, and legislators when as in this case the public interest so requires or the matter is of transcendental [6] importance, of overarching significance to society, or of paramount public interest. Two. Petitioners mainly argue that R.A. 8762 violates the mandate of the 1987 Constitution for the State to develop a self-reliant and independent national economy effectively controlled by Filipinos. They invoke the provisions of the Declaration of Principles and State Policies under Article II of the 1987 Constitution, which read as follows: Section 9. The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all. xxxx Section 19. The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos. Section 20. The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investments.

Petitioners also invoke the provisions of the National Economy and Patrimony under Article XII of the 1987 Constitution, which reads: Section 10. The Congress shall, upon recommendation of the economic and planning agency, when the national interest dictates, reserve to citizens of the Philippines or to corporations or associations at least sixty per centum of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of investments. The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos. In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities. xxxx Section 12. The State shall promote the preferential use of Filipino labor, domestic materials and locally produced goods, and adopt measures that help make them competitive. Section 13. The State shall pursue a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity.
[7]

But, as the Court explained in Taada v. Angara, the provisions of Article II of the 1987 Constitution, the declarations of principles and state policies, are not self-executing. Legislative failure to pursue such policies cannot give rise to a cause of action in the courts.

The Court further explained in Taada that Article XII of the 1987 Constitution lays down the ideals of economic nationalism: (1) by expressing preference in favor of qualified Filipinos in the grant of rights, privileges and concessions covering the national economy and patrimony and in the use of Filipino labor, domestic materials and locally-produced goods; (2) by mandating the State to adopt measures that help make them competitive; and (3) by [8] requiring the State to develop a self-reliant and independent national economy effectively controlled by Filipinos. In other words, while Section 19, Article II of the 1987 Constitution requires the development of a self-reliant and independent national economy effectively controlled by Filipino entrepreneurs, it does not impose a policy of Filipino monopoly of the economic environment. The objective is simply to prohibit foreign powers or interests from maneuvering our economic policies and ensure that Filipinos are given preference in all areas of development. Indeed, the 1987 Constitution takes into account the realities of the outside world as it requires the pursuit of a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity; and speaks of industries which are competitive in both domestic and foreign markets as well as of the protection of Filipino enterprises against unfair foreign competition and trade practices. Thus, while the Constitution mandates a bias in favor of Filipino goods, services, labor and enterprises, it also recognizes the need for business exchange with the rest of the world on the bases of equality and reciprocity and limits protection of [9] Filipino enterprises only against foreign competition and trade practices that are unfair. In other words, the 1987 Constitution does not rule out the entry of foreign investments, goods, and services. While it does not encourage their unlimited entry into the country, it does not prohibit them either. In fact, it allows an exchange on the basis of equality and reciprocity, frowning only on foreign competition that is [10] unfair. The key, as in all economies in the world, is to strike a balance between protecting local businesses and allowing the entry of foreign investments and services. More importantly, Section 10, Article XII of the 1987 Constitution gives Congress the discretion to reserve to Filipinos certain areas of investments upon the recommendation of the NEDA and when the national interest requires. Thus, Congress can determine what policy to pass and when to pass it depending on the economic exigencies. It can enact laws allowing the entry of foreigners into certain industries not reserved by the Constitution to Filipino citizens. In this case, Congress has decided to open certain areas of the retail trade business to foreign investments instead of reserving them exclusively to Filipino citizens. The NEDA has not opposed such policy. The control and regulation of trade in the interest of the public welfare is of course an exercise of the police power of the State. A persons right to property, whether he is a Filipino citizen or foreign national, cannot be taken from him without due process of law. In 1954, Congress enacted the Retail Trade Nationalization Act or R.A. 1180 that restricts the retail business to Filipino citizens. In denying the petition assailing the validity of such Act for violation of the foreigners right to substantive due process of law, the Supreme Court held that the law constituted a [11] valid exercise of police power. The State had an interest in preventing alien control of the retail trade and R.A. 1180 was reasonably related to that purpose. That law is not arbitrary. Here, to the extent that R.A. 8762, the Retail Trade Liberalization Act, lessens the restraint on the foreigners right to property or to engage in an ordinarily lawful business, it cannot be said that the law amounts to a denial of the Filipinos right to property and to due process of law. Filipinos continue to have the right to engage in the kinds of retail business to which the law in question has permitted the entry of foreign investors. Certainly, it is not within the province of the Court to inquire into the wisdom of R.A. 8762 save when it blatantly violates the Constitution. But as the Court has said, there is no showing that the law has contravened any constitutional mandate. The Court is not convinced that the implementation of R.A. 8762 would eventually lead to alien control of the retail trade business. Petitioners have not mustered any concrete and strong argument to support its thesis. The law itself has provided strict safeguards on foreign participation in that business. Thus First, aliens can only engage in retail trade business subject to the categories above-enumerated; Second, only nationals from, or juridical entities formed or incorporated in countries which allow the entry of Filipino retailers shall be allowed to engage in retail trade business; and Third, qualified foreign retailers shall not be allowed to engage in certain retailing activities outside their accredited stores through the use of mobile or rolling stores or carts, the use of sales representatives, door-to-door selling, restaurants and sari-sari stores and such other similar retailing activities. In sum, petitioners have not shown how the retail trade liberalization has prejudiced and can prejudice the local small and medium enterprises since its implementation about a decade ago. WHEREFORE, the Court DISMISSES the petition for lack of merit. No costs.

SO ORDERED. DENNIS A. B. FUNA, Petitioner, - versus EXECUTIVE SECRETARY EDUARDO R. ERMITA, Office of the President, SEC.LEANDRO R. MENDOZA, in his official capacity as Secretary of the Department of Transportation and Communications, USEC. MARIA ELENA H. BAUTISTA, in her official capacities as Undersecretary of the Department of Transportation and Communications and as Officer-in-Charge of the Maritime Industry Authority (MARINA), Respondents.

G.R. No. 184740 Present: PUNO, C.J., CARPIO, * CORONA, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, and MENDOZA, JJ. Promulgated:

February 11, 2010 x-----------------------------------------------------------------------------------------x DECISION VILLARAMA, JR., J.: This is a petition for certiorari, prohibition and mandamus under Rule 65 with prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction, to declare as unconstitutional the designation of respondent Undersecretary Maria Elena H. Bautista as Officer-in-Charge (OIC) of the Maritime Industry Authority (MARINA).

The Antecedents On October 4, 2006, President Gloria Macapagal-Arroyo appointed respondent Maria Elena H. Bautista (Bautista) as Undersecretary of the Department of Transportation and Communications (DOTC), vice Agustin R. Bengzon. Bautista was designated as Undersecretary for Maritime Transport of the department under Special [1] Order No. 2006-171 dated October 23, 2006. On September 1, 2008, following the resignation of then MARINA Administrator Vicente T. Suazo, Jr., Bautista was designated as Officer-in-Charge (OIC), Office of the Administrator, MARINA, in concurrent capacity as DOTC [2] Undersecretary. On October 21, 2008, Dennis A. B. Funa in his capacity as taxpayer, concerned citizen and lawyer, filed the instant petition challenging the constitutionality of Bautistas appointment/designation, which is proscribed by the prohibition on the President, Vice-President, the Members of the Cabinet, and their deputies and assistants to hold any other office or employment. On January 5, 2009, during the pendency of this petition, Bautista was appointed Administrator of [3] the MARINA vice Vicente T. Suazo, Jr. and she assumed her duties and responsibilities as such on February 2, [4] 2009.

The Case Petitioner argues that Bautistas concurrent positions as DOTC Undersecretary and MARINA OIC is in violation of Section 13, Article VII of the 1987 Constitution, as interpreted and explained by this Court in Civil Liberties [5] [6] Union v. Executive Secretary, and reiterated in Public Interest Center, Inc. v. Elma. He points out that while it was clarified in Civil Liberties Union that the prohibition does not apply to those positions held in ex-officio capacities, the position of MARINA Administrator is not ex-officio to the post of DOTC Undersecretary, as can be gleaned from the [7] provisions of its charter, Presidential Decree (P.D.) No. 474, as amended by Executive Order (EO) No. 125[8] A. Moreover, the provisions on the DOTC in the Administrative Code of 1987, specifically Sections 23 and 24, Chapter 6, Title XV, Book IV do not provide any ex-officio role for the undersecretaries in any of the departments attached agencies. The fact that Bautista was extended an appointment naming her as OIC of MARINA shows that she [9] does not occupy it in an ex-officio capacity since an ex-officio position does not require any further warrant or appoint. Petitioner further contends that even if Bautistas appointment or designation as OIC of MARINA was intended to be merely temporary, still, such designation must not violate a standing constitutional prohibition, citing the [10] rationale in Achacoso v. Macaraig. Section 13, Article VII of the 1987 Constitution does not enumerate temporariness as one (1) of the exceptions thereto. And since a temporary designation does not have a maximum duration, it can go on for months or years. In effect, the temporary appointment/designation can effectively circumvent the prohibition. Allowing undersecretaries or assistant secretaries to occupy other government posts would open a Pandoras Box as to let them feast on choice government positions. Thus, in case of vacancy where no permanent appointment could as yet be made, the remedy would be to designate one (1) of the two (2) Deputy Administrators as the Acting Administrator. Such would be the logical course, the said officers being in a better position in terms of knowledge and experience to run the agency in a temporary capacity. Should none of them merit the Presidents confidence, then the practical remedy would be for Undersecretary Bautista to first resign as Undersecretary in order to qualify her as Administrator of MARINA. As to whether she in fact does not receive or has waived any remuneration, the same does not matter because remuneration is not an element in determining whether [11] there has been a violation of Section 13, Article VII of the 1987 Constitution. Petitioner likewise asserts the incompatibility between the posts of DOTC Undersecretary and MARINA Administrator. The reason is that with respect to the affairs in the maritime industry, the recommendations of the MARINA may be the subject of counter or opposing recommendations from the Undersecretary for Maritime Transport. In this case, the DOTC Undersecretary for Maritime Transport and the OIC of MARINA have become one (1) and the same person. There is no more checking and counter-checking of powers and functions, and therein lies the danger to the maritime industry. There is no longer a person above the Administrator of MARINA who will be reviewing the acts of said agency because the person who should be overseeing MARINA, the Undersecretary for [12] Maritime Transport, has effectively been compromised. Finally, petitioner contends that there is a strong possibility in this case that the challenge herein can be rendered moot through the expediency of simply revoking the temporary appointment/designation. But since a similar violation can be committed in the future, there exists a possibility of evading review, and hence supervening events should not prevent the Court from deciding cases involving grave violation of the 1987 Constitution, as this Court ruled in Public Interest Center. Notwithstanding its mootness therefore, should it occur, there is a compelling [13] reason for this case to be decided: the issue raised being capable of repetition, yet evading review. On the other hand, the respondents argue that the requisites of a judicial inquiry are not present in this case. In fact, there no longer exists an actual controversy that needs to be resolved in view of the appointment of respondent Bautista as MARINA Administrator effective February 2, 2009 and the relinquishment of her post as DOTC Undersecretary for Maritime Transport, which rendered the present petition moot and academic. Petitioners prayer for a temporary restraining order or writ of preliminary injunction is likewise moot and academic since, with this [14] supervening event, there is nothing left to enjoin.

Respondents also raise the lack of legal standing of petitioner to bring this suit. Clear from the standard set in Public Interest Center is the requirement that the party suing as a taxpayer must prove that he has sufficient interest in preventing illegal expenditure of public funds, and more particularly, his personal and substantial interest in the case. Petitioner, however, has not alleged any personal or substantial interest in this case. Neither has he claimed that public funds were actually disbursed in connection with respondent Bautistas designation as MARINA OIC. It is to be noted that respondent Bautista did not receive any salary while she was MARINA OIC. As to the [15] alleged transcendental importance of an issue, this should not automatically confer legal standing on a party. Assuming for the sake of argument that the legal question raised herein needs to be resolved, respondents submit that the petition should still be dismissed for being unmeritorious considering that Bautistas concurrent designation as MARINA OIC and DOTC Undersecretary was constitutional. There was no violation of Section 13, Article VII of the 1987 Constitution because respondent Bautista was merely designated acting head of MARINA on September 1, 2008. She was designated MARINA OIC, not appointed MARINA Administrator. With the resignation of Vicente T. Suazo, Jr., the position of MARINA Administrator was left vacant, and pending the appointment of permanent Administrator, respondent Bautista was designated OIC in a temporary capacity for the purpose of preventing a hiatus in the discharge of official functions. Her case thus falls under the recognized exceptions to the rule against multiple offices, i.e., without additional compensation (she did not receive any emolument as MARINA OIC) and as required by the primary functions of the office. Besides, Bautista held the position for four (4) months only, as in fact when she was appointed MARINA Administrator on February 2, 2009, she relinquished her post as DOTC Undersecretary for Maritime Transport, in acknowledgment of the proscription on the [16] holding of multiple offices. As to petitioners argument that the DOTC Undersecretary for Maritime Transport and MARINA Administrator [17] are incompatible offices, respondents cite the test laid down in People v. Green, which held that [T]he offices must subordinate, one [over] the other, and they must, per se, have the right to interfere, one with the other, before they are compatible at common law. Thus, respondents point out that any recommendation by the MARINA Administrator concerning issues of policy and administration go to the MARINA Board and not the Undersecretary for Maritime Transport. The Undersecretary for Maritime Transport is, in turn, under the direct supervision of the DOTC Secretary. Petitioners fear that there is no longer a person above the Administrator of MARINA who will be [18] reviewing the acts of said agency (the Undersecretary for Maritime Transport) is, therefore, clearly unfounded. In his Reply, petitioner contends that respondents argument on the incompatibility of positions was made on the mere assumption that the positions of DOTC Undersecretary for Maritime Transport and the administratorship of MARINA are closely related and is governed by Section 7, paragraph 2, Article IX -B of the 1987 Constitution rather than by Section 13, Article VII. In other words, it was a mere secondary argument. The fact [19] remains that, incompatible or not, Section 13, Article VII still does not allow the herein challenged designation. The sole issue to be resolved is whether or not the designation of respondent Bautista as OIC of MARINA, concurrent with the position of DOTC Undersecretary for Maritime Transport to which she had been appointed, violated the constitutional proscription against dual or multiple offices for Cabinet Members and their deputies and assistants. Our Ruling The petition is meritorious. Requisites for Judicial Review The courts power of judicial review, like almost all other powers conferred by the Constitution, is subject to several limitations, namely: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have standing to challenge; he must have a personal and substantial interest in the case, such that he has sustained or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest possible opportunity; and (4) the issue of constitutionality [20] must be the very lis mota of the case. Respondents assert that the second requisite is absent in this case. 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 [21] to the challenged action; and (3) the injury is likely to be redressed by a favorable action. The question on standing is whether such parties have 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 [22] illumination of difficult constitutional questions. [23] In David v. Macapagal-Arroyo, summarizing the rules culled from jurisprudence, we held that taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided that the following requirements are met: (1) cases involve constitutional issues; (2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional; (3) for voters, there must be a showing of obvious interest in the validity of the election law in question; (4) for concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be settled early; and

for legislators, there must be a claim that the official action complained of infringes upon their prerogatives as legislators. [EMPHASIS SUPPLIED.] Petitioner having alleged a grave violation of the constitutional prohibition against Members of the Cabinet, their deputies and assistants holding two (2) or more positions in government, the fact that he filed this suit as a concerned citizen sufficiently confers him with standing to sue for redress of such illegal act by public officials. The other objection raised by the respondent is that the resolution of this case had been overtaken by events considering the effectivity of respondent Bautistas appointment as MARINA Administrator effective February 2, 2009 and her relinquishment of her former position as DOTC Undersecretary for Maritime Transport. A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value. Generally, courts decline jurisdiction over [24] such case or dismiss it on ground of mootness. However, as we held in Public Interest Center, Inc. v. [25] Elma, supervening events, whether intended or accidental, cannot prevent the Court from rendering a decision if there is a grave violation of the Constitution. Even in cases where supervening events had made the cases moot, this Court did not hesitate to resolve the legal or constitutional issues raised to formulate controlling principles to [26] guide the bench, bar, and public. As a rule, the writ of prohibition will not lie to enjoin acts already done. However, as an exception to the rule on [27] 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 or designation of a Department Undersecretary as officer -in-charge of an attached agency [28] will arise in every such appointment. Undersecretary Bautistas designation as MARINA OIC falls under the stricter prohibition under Section 13, Article VII of the 1987 Constitution. Resolution of the present controversy hinges on the correct application of Section 13, Article VII of the 1987 Constitution, which provides: SEC. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office. On the other hand, Section 7, paragraph (2), Article IX-B reads: SEC. 7. x x x Unless otherwise allowed by law or the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. In Civil Liberties Union, a constitutional challenge was brought before this Court to nullify EO No. 284 issued by then President Corazon C. Aquino on July 25, 1987, which included Members of the Cabinet, undersecretaries and assistant secretaries in its provisions limiting to two (2) the positions that appointive officials of the Executive Department may hold in government and government corporations. Interpreting the above provisions in the light of the history and times and the conditions and circumstances under which the Constitution was framed, this Court struck down as unconstitutional said executive issuance, saying that it actually allows them to hold multiple offices or employment in direct contravention of the express mandate of Section 13, Article VII of the 1987 Constitution prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself. Noting that the prohibition imposed on the President and his official family is all-embracing, the disqualification was held to be absolute, as the holding of any other office is not qualified by the phrase in the Government unlike in Section 13, Article VI prohibiting Senators and Members of the House of Representatives from holding any other office or employment in the Government; and when compared with other officials and employees such as members of the armed forces and civil service employees, we concluded thus: These sweeping, all-embracing prohibitions imposed on the President and his official family, which prohibitions are not similarly imposed on other public officials or employees such as the Members of Congress, members of the civil service in general and members of the armed forces, are proof of the intent of the 1987 Constitution to treat the President and his official family as a class by itself and to impose upon said class stricter prohibitions.

(5)

Such intent of the 1986 Constitutional Commission to be stricter with the President and his official family was also succinctly articulated by Commissioner Vicente Foz after Commissioner Regalado Maambong noted during the floor deliberations and debate that there was no symmetry between the Civil Service prohibitions, originally found in the General Provisions and the anticipated report on the Executive Department. Commissioner Foz Commented, We actually have to be stricter with the President and the members of the Cabinet because they exercise more powers and, therefore, more checks and restraints on them are called for because there is more possibility of abuse in their case. Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the government during their tenure when such is allowed by law or by the primary functions of their positions, members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution itself. In other words, Section 7, Article IX-B is meant to lay down the general rule applicable to all elective and appointive public officials and employees, while Section 13, Article VII is meant to be the exception applicable only to the President, the Vice-President, Members of the Cabinet, their deputies and assistants. xxxx Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the President, Vice-President, members of the Cabinet, their deputies and assistants with respect to holding multiple offices or employment in the government during their tenure, the exception to this prohibition must be read with equal severity. On its face, the language of Section 13, Article VII is prohibitory so that it must be understood as intended to be a positive and unequivocal negation of the privilege of holding multiple government offices or employment. Verily, wherever the language used in the constitution is prohibitory, it is to be understood as intended to be a positive and unequivocal negation. The phrase unless otherwise provided in this Constitution must be given a literal interpretation to refer only to those particular instances cited in the Constitution itself, to wit: the Vice-President being appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or acting as President in those instances provided under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice being ex-officio member [29] of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII. [EMPHASIS SUPPLIED.] Respondent Bautista being then the appointed Undersecretary of DOTC, she was thus covered by the stricter prohibition under Section 13, Article VII and consequently she cannot invoke the exception provided in Section 7, paragraph 2, Article IX-B where holding another office is allowed by law or the primary functions of the position. Neither was she designated OIC of MARINA in an ex-officio capacity, which is the exception recognized in Civil Liberties Union. The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the 1987 Constitution was held inapplicable to posts occupied by the Executive officials specified therein, without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of said office. The reason is that these posts do not comprise any other office within the contemplation of the constitutional [30] prohibition but are properly an imposition of additional duties and functions on said officials. Apart from their bare assertion that respondent Bautista did not receive any compensation when she was OIC of MARINA, respondents failed to demonstrate clearly that her designation as such OIC was in an ex-officio capacity as required by the primary functions of her office as DOTC Undersecretary for Maritime Transport . MARINA was created by virtue of P.D. No. 474 issued by President Ferdinand E. Marcos on June 1, 1974. It is mandated to undertake the following: (a) Adopt and implement a practicable and coordinated Maritime Industry Development Program which shall include, among others, the early replacement of obsolescent and uneconomic vessels; modernization and expansion of the Philippine merchant fleet, enhancement of domestic capability for shipbuilding, repair and maintenance; and the development of reservoir of trained manpower; (b) Provide and help provide the necessary; (i) financial assistance to the industry through public and private financing institutions and instrumentalities; (ii) technological assistance; and (iii) in general, a favorable climate for expansion of domestic and foreign investments in shipping enterprises; and (c) Provide for the effective supervision, regulation and rationalization of the organizational management, ownership and operations of all water transport utilities, and other maritime [31] enterprises. The management of MARINA is vested in the Maritime Administrator, who shall be directly assisted by the Deputy Administrator for Planning and a Deputy Administrator for Operations, who shall be appointed by the President for a term of six (6) years. The law likewise prescribes the qualifications for the office, including such adequate training and experience in economics, technology, finance, law, management, public utility, or in other phases or aspects of the [32] maritime industry, and he or she is entitled to receive a fixed annual salary. The Administrator shall be directly

responsible to the Maritime Industry Board, MARINAs governing body, and shall have powers, functions and duties as provided in P.D. No. 474, which provides, under Sections 11 and 12, for his or her general and specific functions, respectively, as follows: SEC. 11. General Powers and Functions of the Administrator. Subject to the general supervision and control of the Board, the Administrators shall have the following general powers, functions and duties; a. To implement, enforce and apply the policies, programs, standards, guidelines, procedures, decisions and rules and regulations issued, prescribed or adopted by the Board pursuant to this Decree; b. To undertake researches, studies, investigations and other activities and projects, on his own initiative or upon instructions of the Board, and to submit comprehensive reports and appropriate recommendations to the Board for its information and action; c. To undertake studies to determine present and future requirements for port development including navigational aids, and improvement of waterways and navigable waters in consultation with appropriate agencies; d. To pursue continuing research and developmental programs on expansion and modernization of the merchant fleet and supporting facilities taking into consideration the needs of the domestic trade and the need of regional economic cooperation schemes; and e. To manage the affairs of the Authority subject to the provisions of this Decree and applicable laws, orders, rules and regulations of other appropriate government entities. SEC. 12. Specific Powers and Functions of the Administrator. In addition to his general powers and functions, the Administrator shall; a. Issue Certificate of Philippine Registry for all vessels being used in Philippine waters, including fishing vessels covered by Presidential Decree No. 43 except transient civilian vessels of foreign registry, vessels owned and/or operated by the Armed Forces of the Philippines or by foreign governments for military purposes, and bancas, sailboats and other watercraft which are not motorized, of less than three gross tons; b. Provide a system of assisting various officers, professionals, technicians, skilled workers and seamen to be gainfully employed in shipping enterprises, priority being given to domestic needs; c. In collaboration and coordination with the Department of Labor, to look into, and promote improvements in the working conditions and terms of employment of the officers and crew of vessels of Philippine registry, and of such officers and crew members who are Philippine citizens and employed by foreign flag vessels, as well as of personnel of other shipping enterprises, and to assist in the settlement of disputes between the shipowners and ship operators and such officers and crew members and between the owner or manager of other shipping enterprises and their personnel; d. To require any public water transport utility or Philippine flag vessels to provide shipping services to any coastal areas in the country where such services are necessary for the development of the area, to meet emergency sealift requirements, or when public interest so requires; e. Investigate by itself or with the assistance of other appropriate government agencies or officials, or experts from the private sector, any matter within its jurisdiction, except marine casualties or accidents which shall be undertaken by the Philippine Coast Guard; f. Impose, fix, collect and receive in accordance with the schedules approved by the Board, from any shipping enterprise or other persons concerned, such fees and other charges for the payment of its services; g. Inspect, at least annually, the facilities of port and cargo operators and recommend measures for adherence to prescribed standards of safety, quality and operations; h. Approve the sale, lease or transfer of management of vessels owned by Philippine Nationals to foreign owned or controlled enterprises; i. Prescribe and enforce rules and regulations for the prevention of marine pollution in bays, harbors and other navigable waters of the Philippines, in coordination with the government authorities concerned; j. Establish and maintain, in coordination with the appropriate government offices and agencies, a system of regularly and promptly producing, collating, analyzing and disseminating traffic flows, port operations, marine insurance services and other information on maritime matters; k. Recommend such measures as may be necessary for the regulation of the importation into and exportation from the Philippines of vessels, their equipment and spare parts; l. Implement the rules and regulations issued by the Board of Transportation;

Compile and codify all maritime laws, orders, rules and regulations, decisions in leasing cases of courts and the Authoritys procedures and other requirements relative to shipping and other shipping enterprises, make them available to the public, and, whenever practicable to publish such materials; n. Delegate his powers in writing to either of the Deputy Administrators or any other ranking officials of the Authority; Provided, That he informs the Board of such delegation promptly; and o. Perform such other duties as the Board may assign, and such acts as may be necessary and proper to implement this Decree. With the creation of the Ministry (now Department) of Transportation and Communications by virtue of EO No. 546, MARINA was attached to the DOTC for policy and program coordination on July 23, 1979. Its regulatory function was likewise increased with the issuance of EO No. 1011 which abolished the Board of Transportation and transferred the quasi-judicial functions pertaining to water transportation to MARINA. On January 30, 1987, EO No. 125 (amended by EO No. 125-A) was issued reorganizing the DOTC. The powers and functions of the department and the agencies under its umbrella were defined, further increasing the responsibility of MARINA to the industry. Republic Act No. 9295, otherwise known as the The Domestic Shipping Development Act of [33] 2004, further strengthened MARINAs regulatory powers and functions in the shipping sector. Given the vast responsibilities and scope of administration of the Authority, we are hardly persuaded by respondents submission that respondent Bautistas designation as OIC of MARINA was merely an imposition of additional duties related to her primary position as DOTC Undersecretary for Maritime Transport. It appears that the DOTC Undersecretary for Maritime Transport is not even a member of the Maritime Industry Board, which includes the DOTC Secretary as Chairman, the MARINA Administrator as Vice-Chairman, and the following as members: Executive Secretary (Office of the President), Philippine Ports Authority General Manager, Department of National Defense Secretary, Development Bank of the Philippines General Manager, and the Department of Trade and Industry [34] Secretary. Finally, the Court similarly finds respondents theory that being just a designation, and temporary at that, respondent Bautista was never really appointed as OIC Administrator of MARINA, untenable. In Binamira v. [35] Garrucho, Jr., we distinguished between the terms appointment and designation, as follows: Appointment may be defined as the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office. When completed, usually with its confirmation, the appointment results in security of tenure for the person chosen unless he is replaceable at pleasure because of the nature of his office. Designation, on the other hand, connotes merely the imposition by law of additional duties on an incumbent official, as where, in the case before us, the Secretary of Tourism is designated Chairman of the Board of Directors of the Philippine Tourism Authority, or where, under the Constitution, three Justices of the Supreme Court are designated by the Chief Justice to sit in the Electoral Tribunal of the Senate or the House of Representatives. It is said that appointment is essentially executive while designation is legislative in nature. Designation may also be loosely defined as an appointment because it likewise involves the naming of a particular person to a specified public office. That is the common understanding of the term. However, where the person is merely designated and not appointed, the implication is that he shall hold the office only in a temporary capacity and may be replaced at will by the appointing authority. In this sense, the designation is considered only an acting or temporary [36] appointment, which does not confer security of tenure on the person named. [EMPHASIS SUPPLIED.] Clearly, respondents reliance on the foregoing definitions is misplaced considering that the above-cited case addressed the issue of whether petitioner therein acquired valid title to the disputed position and so had the right to security of tenure. It must be stressed though that while the designation was in the nature of an acting and temporary capacity, the words hold the office were employed. Such holding of office pertains to both appointment and designation because the appointee or designate performs the duties and functions of the office. The 1987 Constitution in prohibiting dual or multiple offices, as well as incompatible offices, refers to the holding of the office, and not to the nature of the appointment or designation, words which were not even found in Section 13, Article VII nor in Section 7, paragraph 2, Article IX-B. To [37] hold an office means to possess or occupy the same, or to be in possession and administration, which implies nothing less than the actual discharge of the functions and duties of the office. The disqualification laid down in Section 13, Article VII is aimed at preventing the concentration of powers in the Executive Department officials, specifically the President, Vice-President, Members of the Cabinet and their deputies and assistants. Civil Liberties Union traced the history of the times and the conditions under which the Constitution was framed, and construed the Constitution consistent with the object sought to be accomplished by adoption of such provision, and the evils sought to be avoided or remedied. We recalled the practice, during the Marcos regime, of designating members of the Cabinet, their deputies and assistants as members of the governing bodies or boards of various government agencies and instrumentalities, including government-owned or controlled corporations. This

m.

practice of holding multiple offices or positions in the government led to abuses by unscrupulous public officials, who took advantage of this scheme for purposes of self-enrichment. The blatant betrayal of public trust evolved into one of the serious causes of discontent with the Marcos regime. It was therefore quite inevitable and in consonance with the overwhelming sentiment of the people that the 1986 Constitutional Commission would draft into the proposed Constitution the provisions under consideration, which were envisioned to remedy, if not correct, the evils that flow [38] from the holding of multiple governmental offices and employment. Our declaration in that case cannot be more explicit: But what is indeed significant is the fact that although Section 7, Article IX-B already contains a blanket prohibition against the holding of multiple offices or employment in the government subsuming both elective and appointive public officials, the Constitutional Commission should see it fit to formulate another provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-President, members of the Cabinet, their deputies and assistants from holding any other office or employment during their tenure, unless otherwise provided in the Constitution itself. Evidently, from this move as well as in the different phraseologies of the constitutional provisions in question, the intent of the framers of the Constitution was to impose a stricter prohibition on the President and his official family in so far as holding other offices or [39] employment in the government or elsewhere is concerned. [EMPHASIS SUPPLIED.] Such laudable intent of the law will be defeated and rendered sterile if we are to adopt the semantics of respondents. It would open the veritable floodgates of circumvention of an important constitutional disqualification of officials in the Executive Department and of limitations on the Presidents power of appointment in the guise of temporary designations of Cabinet Members, undersecretaries and assistant secretaries as officers-in-charge of government agencies, instrumentalities, or government-owned or controlled corporations. As to respondents contention that the concurrent positions of DOTC Undersecretary for Maritim e Transport and MARINA OIC Administrator are not incompatible offices, we find no necessity for delving into this matter. Incompatibility of offices is irrelevant in this case, unlike in the case of PCGG Chairman Magdangal Elma [40] in Public Interest Center, Inc. v. Elma. Therein we held that Section 13, Article VII is not applicable to the PCGG Chairman or to the Chief Presidential Legal Counsel, as he is not a cabinet member, undersecretary or assistant [41] secretary. WHEREFORE, the petition is GRANTED. The designation of respondent Ma. Elena H. Bautista as Officer-inCharge, Office of the Administrator, Maritime Industry Authority, in a concurrent capacity with her position as DOTC Undersecretary for Maritime Transport, is hereby declared UNCONSTITUTIONAL for being violative of Section 13, Article VII of the 1987 Constitution and therefore, NULL and VOID. No costs. SO ORDERED. RTURO M. DE CASTRO vs. JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL ARROYO G.R. No. 191002, March 17, 2010 FACTS: The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010 occurs just days after the coming presidential elections on May 10, 2010. These cases trace their genesis to the controversy that has arisen from the forthcoming compulsory retirement of Chief Justice Puno on May 17, 2010, or seven days after the presidential election. Under Section 4(1), in relation to Section 9, Article VIII, that vacancy shall be filled within ninety days from the occurrence thereof from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Also considering that Section 15, Article VII (Executive Department) of the Constitution prohibits the President or Acting President from making appointments within two months immediately before the next presidential elections and up to the end of his term, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. The JBC, in its en banc meeting of January 18, 2010, unanimously agreed to start the process of filling up the position of Chief Justice. Conformably with its existing practice, the JBC automatically considered for the position of Chief Justice the five most senior of the Associate Justices of the Court, namely: Associate Justice Antonio T. Carpio; Associate Justice Renato C. Corona; Associate Justice Conchita Carpio Morales; Associate Justice Presbitero J. Velasco, Jr.; and Associate Justice Antonio Eduardo B. Nachura. However, the last two declined their nomination through letters dated January 18, 2010 and January 25, 2010, respectively. The OSG contends that the incumbent President may appoint the next Chief Justice, because the prohibition under Section 15, Article VII of the Constitution does not apply to appointments in the Supreme Court. It argues that any vacancy in the Supreme Court must be filled within 90 days from its occurrence, pursuant to Section 4(1), Article VIII of the Constitution; that had the framers intended the prohibition to apply to Supreme Court appointments, they could have easily expressly stated so in the Constitution, which explains why the prohibition found in Article VII (Executive Department) was not written in Article VIII (Judicial Department); and that the framers also incorporated in Article VIII ample restrictions or limitations on the Presidents power to appoint members of the Supreme Court to ensure its independence from political vicissitudes and its insulation from political pressures, such as stringent qualifications

for the positions, the establishment of the JBC, the specified period within which the President shall appoint a Supreme Court Justice. A part of the question to be reviewed by the Court is whether the JBC properly initiated the process, there being an insistence from some of the oppositors-intervenors that the JBC could only do so once the vacancy has occurred (that is, after May 17, 2010). Another part is, of course, whether the JBC may resume its process until the short list is prepared, in view of the provision of Section 4(1), Article VIII, which unqualifiedly requires the President to appoint one from the short list to fill the vacancy in the Supreme Court (be it the Chief Justice or an Associate Justice) within 90 days from the occurrence of the vacancy. ISSUE: Whether the incumbent President can appoint the successor of Chief Justice Puno upon his retirement. HELD: Prohibition under Section 15, Article VII does not apply to appointments to fill a vacancy in the Supreme Court or to other appointments to the Judiciary. Two constitutional provisions are seemingly in conflict. The first, Section 15, Article VII (Executive Department), provides: Section 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. The other, Section 4 (1), Article VIII (Judicial Department), states: Section 4. (1). The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof. Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme Court, they could have explicitly done so. They could not have ignored the meticulous ordering of the provisions. They would have easily and surely written the prohibition made explicit in Section 15, Article VII as being equally applicable to the appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such specification was not done only reveals that the prohibition against the President or Acting President making appointments within two months before the next presidential elections and up to the end of the Presidents or Acting Presidents term does not refer to the Members of the Supreme Court. Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme Court, they could have explicitly done so. They could not have ignored the meticulous ordering of the provisions. They would have easily and surely written the prohibition made explicit in Section 15, Article VII as being equally applicable to the appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such specification was not done only reveals that the prohibition against the President or Acting President making appointments within two months before the next presidential elections and up to the end of the Presidents or Acting Presidents term does not refer to the Members of the Supreme Court. Section 14, Section 15, and Section 16 are obviously of the same character, in that they affect the power of the President to appoint. The fact that Section 14 and Section 16 refer only to appointments within the Executive Department renders conclusive that Section 15 also applies only to the Executive Department. This conclusion is consistent with the rule that every part of the statute must be interpreted with reference to the context, i.e. that every part must be considered together with the other parts, and kept subservient to the general intent of the whole enactment. It is absurd to assume that the framers deliberately situated Section 15 between Section 14 and Section 16, if they intended Section 15 to cover all kinds of presidential appointments. If that was their intention in respect of appointments to the Judiciary, the framers, if only to be clear, would have easily and surely inserted a similar prohibition in Article VIII, most likely within Section 4 (1) thereof. ARTURO M. DE CASTRO, G. R. No. 191002 Petitioner, - versus JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL ARROYO, Respondents. x-----------------------x JAIME N. SORIANO, Petitioner, - versus JUDICIAL AND BAR COUNCIL (JBC), Respondent. x-----------------------x PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA),

G.R. No. 191032

Petitioner, - versus JUDICIAL AND BAR COUNCIL (JBC), Respondent. x-----------------------x IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE CONSTITUTION TO APPOINTMENTS TO THE JUDICIARY, ESTELITO P. MENDOZA, Petitioner, x-----------------------x JOHN G. PERALTA, Petitioner, - versus JUDICIAL AND BAR COUNCIL (JBC). Respondent. x - - - - - - - - - - - - - - - - - - - - - - - -x PETER IRVING CORVERA; CHRISTIAN ROBERT S. LIM; ALFONSO V. TAN, JR.; NATIONAL UNION OF PEOPLES LAWYERS; MARLOU B. UBANO; INTEGRATED BAR OF THE PHILIPPINES-DAVAO DEL SUR CHAPTER, represented by its Immediate Past President, ATTY. ISRAELITO P. TORREON, and the latter in his own personal capacity as a MEMBER of the PHILIPPINE BAR; MITCHELL JOHN L. BOISER; BAGONG ALYANSANG BAYAN (BAYAN) CHAIRMAN DR. CAROLINA P. ARAULLO; BAYAN SECRETARY GENERAL RENATO M. REYES, JR.; CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCE-MENT OF GOVERNMENT EMPLOYEES (COURAGE) CHAIRMAN FERDINAND GAITE; KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY) SECRETARY GENERAL GLORIA ARELLANO; ALYANSA NG NAGKAKAISANG KABATAAN NG SAMBAYANAN PARA SA KAUNLARAN (ANAKBAYAN) CHAIRMAN KEN LEONARD RAMOS; TAYO ANG PAG-ASA CONVENOR ALVIN PETERS; LEAGUE OF FILIPINO STUDENTS (LFS) CHAIRMAN JAMES MARK TERRY LACUANAN RIDON; NATIONAL UNION OF STUDENTS OF THE PHILIPPINES (NUSP) CHAIRMAN EINSTEIN RECEDES; COLLEGE EDITORS GUILD OF THE PHILIPPINES (CEGP) CHAIRMAN VIJAE ALQUISOLA; and STUDENT CHRISTIAN MOVEMENT OF THE PHILIPPINES (SCMP) CHAIRMAN MA. CRISTINA ANGELA GUEVARRA; WALDEN F. BELLO and LORETTA ANN P.

G.R. No. 191057

A.M. No. 10-2-5-SC

G.R. No. 191149

ROSALES; WOMEN TRIAL LAWYERS ORGANIZATION OF THE PHILIPPINES, represented by YOLANDA QUISUMBINGJAVELLANA; BELLEZA ALOJADO DEMAISIP; TERESITA GANDIONCO-OLEDAN; MA. VERENA KASILAG-VILLANUEVA; MARILYN STA. ROMANA; LEONILA DE JESUS; and GUINEVERE DE LEON. Intervenors. x - - - - - - - - - - - - - - - - - - - - - - - -x ATTY. AMADOR Z. TOLENTINO, JR., (IBP GovernorSouthern Luzon), and ATTY. ROLAND B. INTING (IBP GovernorEastern Visayas), Petitioners, - versus -

JUDICIAL AND BAR COUNCIL (JBC), Respondent. x-----------------------x PHILIPPINE BAR ASSOCIATION, INC., Petitioner,

- versus -

JUDICIAL AND BAR COUNCIL and HER EXCELLENCY GLORIA MACAPAGAL-ARROYO, Respondents.

G.R. No. 191342

G.R. No. 191420 Present: PUNO, C.J., CARPIO, CORONA, CARPIO MORALES, VELASCO, JR.,

NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, and MENDOZA, JJ. Promulgated: March 17, 2010 x-----------------------------------------------------------------------------------------x DECISION BERSAMIN, J.: The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010 occurs just days after the coming presidential elections on May 10, 2010. Even before the event actually happens, it is giving rise to many legal dilemmas. May the incumbent President appoint his successor, considering that Section 15, Article VII (Executive Department) of the Constitution prohibits the President or Acting President from making appointments within two months immediately before the next presidential elections and up to the end of his term, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety? What is the relevance of Section 4 (1), Article VIII (Judicial Department) of the Constitution, which provides that any vacancy in the Supreme Court shall be filled within 90 days from the occurrence thereof, to the matter of the appointment of his successor? May the Judicial and Bar Council (JBC) resume the process of screening the candidates nominated or being considered to succeed Chief Justice Puno, and submit the list of nominees to the incumbent President even during the period of the prohibition under Section 15, Article VII? Does mandamus lie to compel the submission of the shortlist of nominees by the JBC? Precs of the Consolidated Cases Petitioners Arturo M. De Castro and John G. Peralta respectively commenced G.R. No. 191002 and G.R. [2] No. 191149 as special civil actions for certiorariand mandamus, praying that the JBC be compelled to submit to the incumbent President the list of at least three nominees for the position of the next Chief Justice. In G.R. No. 191032, Jaime N. Soriano, via his petition for prohibition, proposes to prevent the JBC from conducting its search, selection and nomination proceedings for the position of Chief Justice. In G.R. No. 191057, a special civil action for mandamus, the Philippine Constitution Association (PHILCONSA) wants the JBC to submit its list of nominees for the position of Chief Justice to be vacated by Chief Justice Puno upon his retirement on May 17, 2010, because the incumbent President is not covered by the prohibition that applies only to appointments in the Executive Department. In Administrative Matter No. 10-2-5-SC, petitioner Estelito M. Mendoza, a former Solicitor General, seeks a ruling from the Court for the guidance of the JBC on whether Section 15, Article VII applies to appointments to the Judiciary. In G.R. No. 191342, which the Court consolidated on March 9, 2010 with the petitions earlier filed, petitioners Amador Z. Tolentino, Jr. and Roland B. Inting, Integrated Bar of the Philippines (IBP) Governors for Southern Luzon and Eastern Visayas, respectively, want to enjoin and restrain the JBC from submitting a list of nominees for the position of Chief Justice to the President for appointment during the period provided for in Section 15, Article VII. All the petitions now before the Court pose as the principal legal question whether the incumbent President can appoint the successor of Chief Justice Puno upon his retirement. That question is undoubtedly impressed with transcendental importance to the Nation, because the appointment of the Chief Justice is any Presidents most important appointment. A precedent frequently cited is In Re Appointments Dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional Trial Court of Branch 62, Bago City and of Branch 24,
[6] [5] [4] [3] [1]

Cabanatuan City, respectively (Valenzuela), by which the Court held that Section 15, Article VII prohibited the exercise by the President of the power to appoint to judicial positions during the period therein fixed. In G.R. No. 191002, De Castro submits that the conflicting opinions on the issue expressed by legal luminaries one side holds that the incumbent President is prohibited from making appointments within two months immediately before the coming presidential elections and until the end of her term of office as President on June 30, 2010, while the other insists that the prohibition applies only to appointments to executive positions that may influence the election and, anyway, paramount national interest justifies the appointment of a Chief Justice during the election ban has impelled the JBC to defer the decision to whom to send its list of at least three nominees, whether [8] to the incumbent President or to her successor. He opines that the JBC is thereby arrogating unto itself the judicial function that is not conferred upon it by the Constitution, which has limited it to the task of recommending appointees to the Judiciary, but has not empowered it to finally resolve constitutional questions, which is the power vested only in the Supreme Court under the Constitution. As such, he contends that the JBC acted with grave abuse of discretion in deferring the submission of the list of nominees to the President; and that a final and definitive resolution of the constitutional questions raised above would diffuse ( sic) the tension in the legal community that [9] would go a long way to keep and maintain stability in the judiciary and the pol itical system. In G.R. No. 191032, Soriano offers the view that the JBC committed a grave abuse of discretion amounting to lack or excess of its jurisdiction when it resolved unanimously on January 18, 2010 to open the search, nomination, and selection process for the position of Chief Justice to succeed Chief Justice Puno, because the appointing authority for the position of Chief Justice is the Supreme Cour t itself, the Presidents authority being limited to the appointment of the Members of the Supreme Court. Hence, the JBC should not intervene in the process, unless a [10] nominee is not yet a Member of the Supreme Court. For its part, PHILCONSA observes in its petition in G.R. No. 191057 that unorthodox and exceptional circumstances spawned by the discordant interpretations, due perhaps to a perfunctory understanding, of Sec. 15, Art. VII in relation to Secs. 4(1), 8(5) and 9, Art. VIII of the Constitution have bred a frenzied inflammatory legal debate on the constitutional provisions mentioned that has divided the bench and the bar and the general public as well, because of its dimensional impact to the nation and the people, thereby fashioning transcendental questions or issues affecting the JBCs proper exercise of its principal function of recommending appointees to the Judiciary by submitting only to the President (not to the next President) a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy from which the members of the Supreme Court and judges of the lower courts [11] may be appointed. PHILCONSA further believes and submits that now is the time to revisit and [12] review Valenzuela, the strange and exotic Decision of the Court en banc. Peralta states in his petition in G.R. No. 191149 that mandamus can compel the JBC to immediately transmit to the President, within a reasonable time, its nomination list for the position of chief justice upon the mandatory retirement of Chief Justice Reynato S. Puno, in compliance with its mandated duty under the Constitution in the event that the Court resolves that the President can appoint a Chief Justice even during the election ban under [13] Section 15, Article VII of the Constitution. The petitioners in G.R. No. 191342 insist that there is an actual contro versy, considering that the JBC has initiated the process of receiving applications for the position of Chief Justice and has in fact begun the evaluation process for the applications to the position, and is perilously near completing the nomination pro cess and coming up with a list of nominees for submission to the President, entering into the period of the ban on midnight appointments on March 10, 2010, which only highlights the pressing and compelling need for a writ of prohibition to enjoin such alleged ministerial function of submitting the list, especially if it will be cone within the period of the ban on midnight [14] appointments. Antecedents These cases trace their genesis to the controversy that has arisen from the forthcoming compulsory retirement of Chief Justice Puno on May 17, 2010, or seven days after the presidential election. Under Section 4(1), in relation to Section 9, Article VIII, that vacancy shall be filled within ninety days from the occurrence thereof from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. On December 22, 2009, Congressman Matias V. Defensor, an ex officio member of the JBC, addressed a letter to the JBC, requesting that the process for nominations to the office of the Chief Justice be commenced immediately. In its January 18, 2010 meeting en banc, therefore, the JBC passed a resolution,
[15]

[7]

which reads:

The JBC, in its en banc meeting of January 18, 2010, unanimously agreed to start the process of filling up the position of Chief Justice to be vacated on May 17, 2010 upon the retirement of the incumbent Chief Justice Honorable Reynato S. Puno. It will publish the opening of the position for applications or recommendations; deliberate on the list of candidates; publish the names of candidates; accept comments on or opposition to the applications; conduct public interviews of candidates; and prepare the shortlist of candidates. As to the time to submit this shortlist to the proper appointing authority, in the light of the Constitution, existing laws and jurisprudence, the JBC welcomes and will consider all views on the matter. 18 January 2010.

(sgd.) MA. LUISA D. VILLARAMA Clerk of Court & Ex-Officio Secretary Judicial and Bar Council

As a result, the JBC opened the position of Chief Justice for application or recommendation, and published for [16] that purpose its announcement dated January 20, 2010, viz:

The Judicial and Bar Council (JBC) announces the opening for application or recommendation, of the position of CHIEF JUSTICE OF THE SUPREME COURT, which will be vacated on 17 May 2010 upon the retirement of the incumbent Chief Justice, HON. REYNATO S. PUNO. Applications or recommendations for this position must be submitted not later than 4 February 2010 (Thursday) to the JBC Secretariat xxx:
[17]

The announcement was published on January 20, 2010 in the Philippine Daily Inquirer and The Philippine

Star.

Conformably with its existing practice, the JBC automatically considered for the position of Chief Justice the five most senior of the Associate Justices of the Court, namely: Associate Justice Antonio T. Carpio; Associate Justice Renato C. Corona; Associate Justice Conchita Carpio Morales; Associate Justice Presbitero J. Velasco, Jr.; and Associate Justice Antonio Eduardo B. Nachura. However, the last two declined their nomination through letters [18] dated January 18, 2010 and January 25, 2010, respectively. Others either applied or were nominated. Victor Fernandez, the retired Deputy Ombudsman for Luzon, applied, but later formally withdrew his name from consideration through his letter dated February 8, 2010. Candidates who accepted their nominations without conditions were Associate Justice Renato C. Corona; Associate Justice Teresita J. Leonardo-De Castro; Associate Justice Arturo D. Brion; and Associate Justice Edilberto G. Sandoval (Sandiganbayan). Candidates who accepted their nominations with conditions were Associate Justice Antonio T. [19] Carpio and Associate Justice Conchita Carpio Morales. Declining their nominations were Atty. Henry Villarica (via telephone conversation with the Executive Officer of the JBC on February 5, 2010) and Atty. Gregorio M. Batiller, [20] Jr. (via telephone conversation with the Executive Officer of the JBC on February 8, 2010). The JBC excluded from consideration former RTC Judge Florentino Floro (for failure to meet the standards set by the JBC rules); and Special Prosecutor Dennis Villa-Ignacio of the Office of the Ombudsman (due to cases [21] pending in the Office of the Ombudsman). In its meeting of February 8, 2010, the JBC resolved to proceed to the next step of announcing the names of the following candidates to invite the public to file their sworn complaint, written report, or opposition, if any, not later than February 22, 2010, to wit: Associate Justice Carpio, Associate Justice Corona, Associate Justice Carpio

Morales, Associate Justice Leonardo-De Castro, Associate Justice Brion, and Associate Justice Sandoval. [22] The announcement came out in thePhilippine Daily Inquirer and The Philippine Star issues of February 13, 2010. Issues Although it has already begun the process for the filling of the position of Chief Justice Puno in accordance with its rules, the JBC is not yet decided on when to submit to the President its list of nominees for the position due to the controversy now before us being yet unresolved. In the meanwhile, time is marching in quick step towards May 17, 2010 when the vacancy occurs upon the retirement of Chief Justice Puno. The actions of the JBC have sparked a vigorous debate not only among legal luminaries, but also among non-legal quarters, and brought out highly disparate opinions on whether the incumbent President can appoint the next Chief Justice or not. Petitioner Mendoza notes that in Valenzuela, which involved the appointments of two judges of the Regional Trial Court, the Court addressed this issue now before us as an administrative matter to avoid any possible polemics concerning the matter, but he opines that the polemics leading to Valenzuela would be miniscule [sic] compared to the polemics that have now erupted in regard to the current controversy, and that unless put to a halt, and this may only be achieved by a ruling from the Court, the integrity of the process and the [23] credibility of whoever is appointed to the position of Chief Justice, may irreparably be impaired. Accordingly, we reframe the issues as submitted by each petitioner in the order of the chronological filing of their petitions.

G.R. No. 191002

a. Does the JBC have the power and authority to resolve the constitutional question of whether the incumbent President can appoint a Chief Justice during the election ban period? b. Does the incumbent President have the power and authority to appoint during the election ban the successor of Chief Justice Puno when he vacates the position of Chief Justice on his retirement on May 17, 2010? G.R. No. 191032 a. Is the power to appoint the Chief Justice vested in the Supreme Court en banc? G.R. No. 191057 a. Is the constitutional prohibition against appointment under Section 15, Article VII of the Constitution applicable only to positions in the Executive Department? b. Assuming that the prohibition under Section 15, Article VII of the Constitution also applies to members of the Judiciary, may such appointments be excepted because they are impressed with public interest or are demanded by the exigencies of public service, thereby justifying these appointments during the period of prohibition? c. Does the JBC have the authority to decide whether or not to include and submit the names of nominees who manifested interest to be nominated for the position of Chief Justice on the understanding that his/her nomination will be submitted to the next President in view of the prohibition against presidential appointments from March 11, 2010 until June 30, 2010? A. M. No. 10-2-5-SC a. Does Section 15, Article VII of the Constitution apply to appointments to positions in the Judiciary under Section 9, Article VIII of the Constitution? b. May President Gloria Macapagal-Arroyo make appointments to the Judiciary after March 10, 2010, including that for the position of Chief Justice after Chief Justice Puno retires on May 17, 2010?

G.R. No. 191149 a. Does the JBC have the discretion to withhold the submission of the short list to President Gloria Macapagal-Arroyo? G.R. No. 191342 a. Does the JBC have the authority to submit the list of nominees to the incumbent President without committing a grave violation of the Constitution and jurisprudence prohibiting the incumbent President from making midnight appointments two months immediately preceding the next presidential elections until the end of her term? Is any act performed by the JBC, including the vetting of the candidates for the position of Chief Justice, constitutionally invalid in view of the JBCs illegal composition allowing each member from the Senate and the House of Representatives to have one vote each?

b.

On February 16, 2010, the Court directed the JBC and the Office of the Solicitor General (OSG) to comment on the consolidated petitions, except that filed inG.R. No. 191342. On February 26, 2010, the JBC submitted its comment, reporting therein that the next stage of the process for the selection of the nominees for the position of Chief Justice would be the public interview of the candidates and the preparation of the short list of candidates, including the interview of the constitutional experts, as may be [24] [25] needed. It stated: Likewise, the JBC has yet to take a position on when to submit the shortlist to the proper appointing authority, in light of Section 4 (1), Article VIII of the Constitution, which provides that vacancy in the Supreme Court shall be filled within ninety (90) days from the occurrence thereof, Section 15, Article VII of the Constitution concerning the ban on Presidential appointments two (2) months immediately before the next presidential elections and up to the end of his t erm and Section 261 (g), Article XXII of the Omnibus Election Code of the Philippines. 12. Since the Honorable Supreme Court is the final interpreter of the Constitution, the JBC will be guided by its decision in these consolidated Petitions and Administrative Matter.

On February 26, 2010, the OSG also submitted its comment, essentially stating that the incumbent President can appoint the successor of Chief Justice Puno upon his retirement by May 17, 2010. The OSG insists that: (a) a writ of prohibition cannot issue to prevent the JBC from performing its principal function under the Constitution to recommend appointees in the Judiciary; ( b) the JBCs function to recommend is a continuing process, which does not begin with each vacancy or end with each nomination, because the goal is to [26] submit the list of nominees to Malacaang on the very day the vacancy arises; the JBC was thus acting within its jurisdiction when it commenced and set in motion the process of selecting the nominees to be submitted to the [27] President for the position of Chief Justice to be vacated by Chief Justice Puno; (c) petitioner Sorianos theory that it is the Supreme Court, not the President, who has the power to appoint the Chief Justice, is incorrect, and proceeds from his misinterpretation of the phrase members of the Supreme Court found in Section 9, Article VIII of the [28] Constitution as referring only to the Associate Justices, to the exclusion of the Chief Justice; (d) a writ of mandamus can issue to compel the JBC to submit the list of nominees to the President, considering that its duty to prepare the list of at least three nominees is unqualified, and the submission of the list is a ministerial act that the JBC is mandated to perform under the Constitution; as such, the JBC, the nature of whose principal function is executive, is not vested with the power to resolve who has the authority to appoint the next Chief Justice and, therefore, has no [29] discretion to withhold the list from the President; and (e) a writ of mandamus cannot issue to compel the JBC to include or exclude particular candidates as nominees, considering that there is no imperative duty on its part to include in or exclude from the list particular individuals, but, on the contrary, the JBCs determination of who it [30] nominates to the President is an exercise of a discretionary duty. The OSG contends that the incumbent President may appoint the next Chief Justice, because the prohibition under Section 15, Article VII of the Constitution does not apply to appointments in the Supreme Court. It

argues that any vacancy in the Supreme Court must be filled within 90 days from its occurrence, pursuant to Section [31] 4(1), Article VIII of the Constitution; that in their deliberations on the mandatory period for the appointment of Supreme Court Justices, the framers neither mentioned nor referred to the ban against midnight appointments, or its [32] effects on such period, or vice versa; that had the framers intended the prohibition to apply to Supreme Court appointments, they could have easily expressly stated so in the Constitution, which explains why the prohibition found in Article VII (Executive Department) was not written in Article VIII (Judicial Department); and that the framers also incorporated in Article VIII ample restrictions or limitations on the Presidents power to appoint mem bers of the Supreme Court to ensure its independence from political vicissitudes and its insulation from political [33] pressures, such as stringent qualifications for the positions, the establishment of the JBC, the specified period within which the President shall appoint a Supreme Court Justice. The OSG posits that although Valenzuela involved the appointment of RTC Judges, the situation now refers to the appointment of the next Chief Justice to which the prohibition does not apply; that, at any rate, Valenzuela even recognized that there might be the imperative need for an appointment during the period of the ban, like when the membership of the Supreme Court should be so reduced that it will have no quorum, or [34] should the voting on a particular important question requiring expeditious resolution be divided; and that Valenzuela also recognized that the filling of vacancies in the Judiciary is undoubtedly in the public interest, most especially if there is any compelling reason to justify the making of the appointments during the period of the [35] prohibition. Lastly, the OSG urges that there are now undeniably compelling reasons for the incumbent President to appoint the next Chief Justice, to wit: (a) a deluge of cases involving sensitive political issues is quite [36] expected; (b) the Court acts as the Presidential Electoral Tribunal (PET), which, sitting en banc, is the sole judge of all contests relating to the election, returns, and qualifications of the President and Vice President and, as such, [37] has the power to correct manifest errors on the statement of votes (SOV) and certificates of canvass (COC); (c) if history has shown that during ordinary times the Chief Justice was appointed immediately upon the occurrence of the vacancy, from the time of the effectivity of the Constitution, there is now even more reason to appoint the next Chief [38] Justice immediately upon the retirement of Chief Justice Puno; and (d) should the next Chief Justice come from among the incumbent Associate Justices of the Supreme Court, thereby causing a vacancy, it also becomes incumbent upon the JBC to start the selection process for the filling up of the vacancy in accordance with the [39] constitutional mandate. On March 9, 2010, the Court admitted the following comments/oppositions-in-intervention, to wit: (a) The opposition-in-intervention dated February 22, 2010 of Atty. Peter Irving Corvera [40] (Corvera); (b) The opposition-in-intervention dated February 22, 2010 of Atty. Christian Robert S. Lim (Lim); (c) The opposition-in-intervention dated February 23, 2010 of Atty. Alfonso V. Tan, Jr. (Tan); (d) The comment/opposition-in-intervention dated March 1, 2010 of the National Union of Peoples Lawyers (NUPL); (e) The opposition-in-intervention dated February 25, 2010 of Atty. Marlou B. Ubano (Ubano); (f) The opposition-in-intervention dated February 25, 2010 of Integrated Bar of the PhilippinesDavao del Sur Chapter and its Immediate Past President, Atty. Israelito P. Torreon (IBPDavao del Sur); (g) The opposition-in-intervention dated February 26, 2010 of Atty. Mitchell John L. Boiser (Boiser); (h)The consolidated comment/opposition-in-intervention dated February 26, 2010 of BAYAN Chairman Dr. Carolina P. Araullo; BAYAN Secretary General Renato M. Reyes, Jr.; Confederation for Unity, Recognition and Advancement of Government Employees (COURAGE) Chairman Ferdinand Gaite; Kalipunan ng Damayang Mahihirap (KADAMAY) Secretary General Gloria Arellano; Alyansa ng Nagkakaisang Kabataan ng Samayanan Para sa Kaunlaran (ANAKBAYAN) Chairman Ken Leonard Ramos; Tayo ang Pag-asa Convenor Alvin Peters; League of Filipino Students (LFS) Chairman James Mark Terry Lacuanan Ridon; National Union of Students of the Philippines (NUSP) Chairman Einstein Recedes, College Editors Guild of the Philippines (CEGP) Chairman Vijae Alquisola; and Student Christian Movement of the Philippines (SCMP) Chairman Ma. Cristina Angela Guevarra (BAYAN et al.);

(i)

The opposition-in-intervention dated March 3, 2010 of Walden F. Bello and Loretta Ann P. Rosales (Bello et al.); and

(j) The consolidated comment/opposition-in-intervention dated March 4, 2010 of the Women Trial Lawyers Organization of the Philippines (WTLOP), represented by Atty. Yolanda QuisumbingJavellana; Atty. Belleza Alojado Demaisip; Atty. Teresita Gandionco-Oledan; Atty. Ma. Verena Kasilag-Villanueva; Atty. Marilyn Sta. Romana; Atty. Leonila de Jesus; and Atty. Guinevere de Leon (WTLOP).

Intervenors Tan, WTLOP, BAYAN et al., Corvera, IBP Davao del Sur, and NUPL take the position that De Castros petition was bereft of any basis, because under Section 15, Article VII, the outgoing President is constitutionally banned from making any appointments from March 10, 2010 until June 30, 2010, including the appointment of the successor of Chief Justice Puno. Hence, mandamus does not lie to compel the JBC to submit the list of nominees to the outgoing President if the constitutional prohibition is already in effect. Tan adds that the prohibition against midnight appointments was applied by the Court to the appointments to the Judiciary made by then President Ramos, with the Court holding that the duty of the President to fill the vacancies within 90 days from occurrence of the vacancies (for the Supreme Court) or from the submission of the list (for all other courts) was not an excuse to violate the constitutional prohibition. Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al., and Bello et al. oppose the insistence that Valenzuela recognizes the possibility that the President may appoint the next Chief Justice if exigent circumstances warrant the appointment, because that recognition is obiter dictum; and aver that the absence of a Chief Justice or even an Associate Justice does not cause epic damage or absolute disruption or paralysis in the operations of the Judiciary. They insist that even without the successor of Chief Justice Puno being appointed by the incumbent President, the Court is allowed to sit and adjudge en banc or in divisions of three, five or seven members at its discretion; that a full membership of the Court is not necessary; that petitioner De Castros fears are unfounded and baseless, being based on a mere possibility, the occurrence of which is entirely unsure; that it is not in the national interest to have a Chief Justice whose appointment is unconstitutional and, therefore, void; and that such a situation will create a crisis in the judicial system and will worsen an already vulnerable political situation. ice is imperative for the stability of the judicial system and the political situation in the country when the electionrelated questions reach the Court as false, because there is an existing law on filling the void brought about by a vacancy in the office of Chief Justice; that the law is Section 12 of the Judiciary Act of 1948, which has not been repealed by Batas Pambansa Blg. 129 or any other law; that a temporaryor an acting Chief Justice is not anathema to judicial independence; that the designation of an acting Chief Justice is not only provided for by law, but is also dictated by practical necessity; that the practice was intended to be enshrined in the 1987 Constitution, but the Commissioners decided not to write it in the Constitution on account of the settled practice; that the practice was followed under the 1987 Constitution, when, in 1992, at the end of the term of Chief Justice Marcelo B. Fernan, Associate Justice Andres Narvasa assumed the position as Acting Chief Justice prior to his official appointment as Chief Justice; that said filling up of a vacancy in the office of the Chief Justice was acknowledged and even used by analogy in the case of the vacancy of the Chairman of the Commission on Elections, per Brillantes v. Yorac, 192 SCRA 358; and that the history of the Supreme Court has shown that this rule of succession has been repeatedly observed and has become a part of its tradition. Intervenors Ubano, Boiser, NUPL, Corvera, and Lim maintain that the Omnibus Election Code penalizes as an election offense the act of any government official who appoints, promotes, or gives any increase in salary or remuneration or privilege to any government official or employee during the period of 45 days before a regular election; that the provision covers all appointing heads, officials, and officers of a government office, agency or instrumentality, including the President; that for the incumbent President to appoint the next Chief Justice upon the retirement of Chief Justice Puno, or during the period of the ban under the Omnibus Election Code,constitutes an election offense; that even an appointment of the next Chief Justice prior to the election ban is fundamentally invalid and without effect because there can be no appointment until a vacancy occurs; and that the vacancy for the position can occur only by May 17, 2010. Intervenor Boiser adds that De Castros prayer to compel the submission of nominees by the JBC to the incumbent President is off-tangent because the position of Chief Justice is still not vacant; that to speak of a list, much more a submission of such list, before a vacancy occurs is glaringly premature; that the proposed advance appointment by the incumbent President of the next Chief Justice will be unconstitutional; and that no list of nominees can be submitted by the JBC if there is no vacancy.

All the intervenors-oppositors submit that Section 15, Article VII makes no distinction between the kinds of appointments made by the President; and that the Court, in Valenzuela, ruled that the appointments by the President of the two judges during the prohibition period were void. Intervenor WTLOP posits that Section 15, Article VII of the 1987 Constitution does not apply only to the appointments in the Executive Department, but also to judicial appointments, contrary to the submission of PHILCONSA; that Section 15 does not distinguish; and that Valenzuela already interpreted the prohibition as applicable to judicial appointments. Intervenor WTLOP further posits that petitioner Sorianos contention that the power to appoint the Chief Justice is vested, not in the President, but in the Supreme Court, is utterly baseless, because the Chief Justice is also a Member of the Supreme Court as contemplated under Section 9, Article VIII; and that, at any rate, the term members was interpreted in Vargas v. Rillaroza (G.R. No. L-1612, February 26, 1948) to refer to the Chief Justice and the Associate Justices of the Supreme Court; that PHILCONSAs prayer that the Court pass a reso lution declaring that persons who manifest their interest as nominees, but with conditions, shall not be considered nominees by the JBC is diametrically opposed to the arguments in the body of its petition; that such glaring inconsistency between the allegations in the body and the relief prayed for highlights the lack of merit of PHILCONSAs petition; that the role of the JBC cannot be separated from the constitutional prohibition on the President; and that the Court must direct the JBC to follow the rule of law, that is, to submit the list of nominees only to the next duly elected President after the period of the constitutional ban against midnight appointments has expired. Oppositor IBP Davao del Sur opines that the JBC because it is neither a judicial nor a quasi-judicial body has no duty under the Constitution to resolve the question of whether the incumbent President can appoint a Chief Justice during the period of prohibition; that even if the JBC has already come up with a short list, it still has to bow to the strict limitations under Section 15, Article VII; that should the JBC defer submission of the list, it is not arrogating unto itself a judicial function, but simply respecting the clear mandate of the Constitution; and that the application of the general rule in Section 15, Article VII to the Judiciary does not violate the principle of separation of powers, because said provision is an exception. Oppositors NUPL, Corvera, Lim and BAYAN et al. state that the JBCs act of nominating appointees to the Supreme Court is purely ministerial and does not involve the exercise of judgment; that there can be no default on the part of the JBC in submitting the list of nominees to the President, considering that the call for applications only begins from the occurrence of the vacancy in the Supreme Court; and that the commencement of the process of screening of applicants to fill the vacancy in the office of the Chief Justice only begins from the retirement on May 17, 2010, for, prior to this date, there is no definite legal basis for any party to claim that the submission or nonsubmission of the list of nominees to the President by the JBC is a matter of right under law. The main question presented in all the filings herein because it involves two seemingly conflicting provisions of the Constitution imperatively demands the attention and resolution of this Court, the only authority that can resolve the question definitively and finally. The imperative demand rests on the ever-present need, first, to safeguard the independence, reputation, and integrity of the entire Judiciary, particularly this Court, an institution that has been unnecessarily dragged into the harsh polemics brought on by the controversy; second, to settle once and for all the doubt about an outgoing Presidents power to appoint to the Judiciary within the long period starting two months before the presidential elections until the end of the presidential term; and third, to set a definite guideline for the JBC to follow in the discharge of its primary office of screening and nominating qualified persons for appointment to the Judiciary. Thus, we resolve. Ruling of the Court Locus Standi of Petitioners The preliminary issue to be settled is whether or not the petitioners have locus standi. Black defines locus standi as a right of appearance in a court of justice on a given question. In public or constitutional litigations, the Court is often burdened with the determination of the locus standi of the petitioners due to the ever-present need to regulate the invocation of the intervention of the Court to correct any official action or policy in order to avoid obstructing the efficient functioning of public officials and offices involved in public service. It is required, therefore, that the petitioner must have a personal stake in the outcome of the controversy, for, as indicated [42] in Agan, Jr. v. Philippine International Air Terminals Co., Inc.:
[41]

The question on legal standing is whether such parties have 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 [43] illumination of difficult constitutional questions. Accordingly, it has been held that the interest of a person assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only that the law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties [44] by reason of the statute or act complained of. It is true that as early as in 1937, in People v. Vera, the Court adopted the direct injury test for determining whether a petitioner in a public action had locus standi. There, the Court held that the person who would assail the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will [46] sustain direct injury as a result. Vera was followed in Custodio v. President of the Senate, Manila Race Horse [47] [48] Trainers Association v. De la Fuente, Anti-Chinese League of the Philippines v. Felix, and Pascual v. Secretary [49] of Public Works. Yet, the Court has also held that the requirement of locus standi, being a mere procedural technicality, can [50] be waived by the Court in the exercise of its discretion. For instance, in 1949, in Araneta v. Dinglasan, the Court liberalized the approach when the cases had transcendental importance. Some notable controversies whose petitioners did not pass the direct injury test were allowed to be treated in the same way as in Araneta v. [51] Dinglasan. In the 1975 decision in Aquino v. Commission on Elections, this Court decided to resolve the issues raised by the petition due to their far-reaching implications, even if the petitioner had no personality to file the suit. The liberal approach of Aquino v. Commission on Elections has been adopted in several notable cases, permitting ordinary citizens, legislators, and civic [53] organizations to bring their suits involving the constitutionality or validity of laws, regulations, and rulings. However, the assertion of a public right as a predicate for challenging a supposedly illegal or unconstitutional executive or legislative action rests on the theory that the petitioner represents the public in general. Although such petitioner may not be as adversely affected by the action complained against as are others, it is enough that he sufficiently demonstrates in his petition that he is entitled to protection or relief from the Court in the vindication of a public right. Quite often, as here, the petitioner in a public action sues as a citizen or taxpayer to gain locus standi. That is not surprising, for even if the issue may appear to concern only the public in general, such capacities nonetheless [54] equip the petitioner with adequate interest to sue. In David v. Macapagal-Arroyo, the Court aptly explains why: Case law in most jurisdictions now allows both citizen and taxpayer standing in public [55] actions. The distinction was first laid down in Beauchamp v. Silk, where it was held that the plaintiff in a taxpayers suit is in a different category from the plaintiff in a citizens suit. In the former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is but the mere instrument of the public concern. As held by the New York Supreme Court [56] in People ex rel Case v. Collins: In matter of mere public right, howeverthe people are the real partiesIt is at least the right, if not the duty, of every citizen to interfere and see that a public offence be properly pursued and punished, and that a public grievance be remedied. [57] With respect to taxpayers suits, Terr v. Jordan held that the right of a citizen and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds to his injury [58] cannot be denied.
[52] [45]

Petitioners De Castro (G.R. No. 191002), Soriano (G.R. No. 191032) and Peralta (G.R. No. 191149) all assert their right as citizens filing their petitions on behalf of the public who are directly affected by the issue of the appointment of the next Chief Justice. De Castro and Soriano further claim standing as taxpayers, with Soriano averring that he is affected by the continuing proceedings in the JBC, which involve unnecessary, if not, illegal [59] disbursement of public funds.

PHILCONSA alleges itself to be a non-stock, non-profit organization existing under the law for the purpose of defending, protecting, and preserving the Constitution and promoting its growth and flowering. It also alleges that [60] the Court has recognized its legal standing to file cases on constitutional issues in several cases. In A.M. No. 10-2-5-SC, Mendoza states that he is a citizen of the Philippines, a member of the Philippine Bar engaged in the active practice of law, and a former Solicitor General, former Minister of Justice, former Member of the Interim Batasang Pambansa and the Regular Batasang Pambansa, and former member of the Faculty of the College of Law of the University of the Philippines. The petitioners in G.R. No. 191342 are the Governors of the Integrated Bar of the Philippines (IBP) for Southern Luzon and Eastern Visayas. They allege that they have the legal standing to enjoin the submission of the list of nominees by the JBC to the President, for [a]n adjudication of the proper interpretation and application of the constitutional ban on midnight appointments with regard to respondent JBCs function in submitting the lis t of nominees is well within the concern of petitioners, who are duty bound to ensure that obedience and respect for the Constitution is upheld, most especially by government offices, such as respondent JBC, who are specifically tasked to perform crucial functions in the whole scheme of our democratic institution. They further allege that, reposed in them as members of the Bar, is a clear legal interest in the process of selecting the members of the Supreme Court, and in the selection of the Chief Justice, considering that the person appointed becomes a member of the body that [61] has constitutional supervision and authority over them and other members of the legal profession. The Court rules that the petitioners have each demonstrated adequate interest in the outcome of the controversy as to vest them with the requisite locus standi.The issues before us are of transcendental importance to the people as a whole, and to the petitioners in particular. Indeed, the issues affect everyone (including the petitioners), regardless of ones personal interest in life, because they co ncern that great doubt about the authority of the incumbent President to appoint not only the successor of the retiring incumbent Chief Justice, but also others who may serve in the Judiciary, which already suffers from a far too great number of vacancies in the ranks of trial judges throughout the country. In any event, the Court retains the broad discretion to waive the requirement of legal standing in favor of any petitioner when the matter involved has transcendental importance, or otherwise requires a liberalization of the [62] requirement. Yet, if any doubt still lingers about the locus standi of any petitioner, we dispel the doubt now in order to remove any obstacle or obstruction to the resolution of the essential issue squarely presented herein. We are not to shirk from discharging our solemn duty by reason alone of an obstacle more technical than otherwise. In Agan, Jr. [63] v. Philippine International Air Terminals Co., Inc., we pointed out: Standing is a peculiar concept in constitutional law because in some cases, suits are not brought by parties who have been personally injured by the operation of a law or any other government act but by concerned citizens, taxpayers or voters who actually sue in the public interest. But even if, strictly speaking, the petitioners are not covered by the definition, it is st ill within the wide discretion of the Court to waive the requirement and so remove the impediment to its addressing and resolving the [64] serious constitutional questions raised. Justiciability Intervenor NUPL maintains that there is no actual case or controversy that is appropriate or ripe for adjudication, considering that although the selection process commenced by the JBC is going on, there is yet no final list of nominees; hence, there is no imminent controversy as to whether such list must be submitted to the incumbent President, or reserved for submission to the incoming President. Intervenor Tan raises the lack of any actual justiciable controversy that is ripe for judicial determination, pointing out that petitioner De Castro has not even shown that the JBC has already completed its selection process and is now ready to submit the list to the incumbent President; and that petitioner De Castro is merely presenting a hypothetical scenario that is clearly not sufficient for the Court to exercise its power of judicial review. Intervenors Corvera and Lim separately opine that De Castros petition rests on an overbroad and vague allegation of political tension, which is insufficient basis for the Court to exercise its power of judicial review. Intervenor BAYAN et al. contend that the petitioners are seeking a mere advisory opinion on what the JBC and the President should do, and are not invoking any issues that are justiciable in nature. Intervenors Bello et al. submit that there exist no conflict of legal rights and no assertion of opposite legal claims in any of the petitions; that PHILCONSA does not allege any action taken by the JBC, but simply avers that

the conditional manifestations of two Members of the Court, accented by the divided opinions and interpretations of legal experts, or associations of lawyers and law students on the issues published in the daily newspapers are matters of paramount and transcendental importance to the bench, bar and general public; that PHILCONSA fails not only to cite any legal duty or allege any failure to perform the duty, but also to indicate what specific action should be done by the JBC; that Mendoza does not even attempt to portray the matter as a controversy or conflict of rights, but, instead, prays that the Court should rule for the guidance of the JBC; that the fact that the Court supervises the JBC does not automatically imply that the Court can rule on the issues presented in the Mendoza petition, because supervision involves oversight, which means that the subordinate officer or body must first act, and if such action is not in accordance with prescribed rules, then, and only then, may the person exercising oversight order the action to be redone to conform to the prescribed rules; that the Mendoza petition does not allege that the JBC has performed a specific act susceptible to correction for being illegal or unconstitutional; and that the Mendoza petition asks the Court to issue an advisory ruling, not to exercise its power of supervision to correct a wrong act by the JBC, but to declare the state of the law in the absence of an actual case or controversy. We hold that the petitions set forth an actual case or controversy that is ripe for judicial determination. The reality is that the JBC already commenced the proceedings for the selection of the nominees to be included in a short list to be submitted to the President for consideration of which of them will succeed Chief Justice Puno as the next Chief Justice. Although the position is not yet vacant, the fact that the JBC began the process of nomination pursuant to its rules and practices, although it has yet to decide whether to submit the list of nominees to the incumbent outgoing President or to the next President, makes the situation ripe for judicial determination, because the next steps are the public interview of the candidates, the preparation of the short list of candidates, and the inter view of constitutional experts, as may be needed. A part of the question to be reviewed by the Court is whether the JBC properly initiated the process, there being an insistence from some of the oppositors-intervenors that the JBC could only do so once the vacancy has occurred (that is, after May 17, 2010). Another part is, of course, whether the JBC may resume its process until the short list is prepared, in view of the provision of Section 4(1), Article VIII, which unqualifiedly requires the President to appoint one from the short list to fill the vacancy in the Supreme Court (be it the Chief Justice or an Associate Justice) within 90 days from the occurrence of the vacancy. The ripeness of the controversy for judicial determination may not be doubted. The challenges to the authority of the JBC to open the process of nomination and to continue the process until the submission of the list of nominees; the insistence of some of the petitioners to compel the JBC through mandamus to submit the short list to the incumbent President; the counter-insistence of the intervenors to prohibit the JBC from submitting the short list to the incumbent President on the ground that said list should be submitted instead to the next President; the strong position that the incumbent President is already prohibited under Section 15, Article VII from making any appointments, including those to the Judiciary, starting on May 10, 2010 until June 30, 2010; and the contrary position that the incumbent President is not so prohibited are only some of the real issues for determination. All such issues establish the ripeness of the controversy, considering that for some the short list must be submitted before the vacancy actually occurs by May 17, 2010. The outcome will not be an abstraction, or a merely hypothetical exercise. The resolution of the controversy will surely settle with finality the nagging questions that are preventing the JBC from moving on with the process that it already began, or that are reasons persuading the JBC to desist from the rest of the process. We need not await the occurrence of the vacancy by May 17, 2010 in order for the principal issue to ripe for judicial determination by the Court. It is enough that one alleges conduct arguably affected with a constitutional interest, but seemingly proscribed by the Constitution. A reasonable certainty of the occurrence of the perceived threat to a constitutional interest is sufficient to afford a basis for bringing a challenge, provided the Court has [65] sufficient facts before it to enable it to intelligently adjudicate the issues. Herein, the facts are not in doubt, for only legal issues remain. Substantive Merits I Prohibition under Section 15, Article VII does not apply to appointments to fill a vacancy in the Supreme Court or to other appointments to the Judiciary

Two constitutional provisions are seemingly in conflict. The first, Section 15, Article VII (Executive Department), provides:

Section 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments , except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.

The other, Section 4 (1), Article VIII (Judicial Department), states: Section 4. (1). The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof.

In the consolidated petitions, the petitioners, with the exception of Soriano, Tolentino and Inting, submit that the incumbent President can appoint the successor of Chief Justice Puno upon his retirement on May 17, 2010, on the ground that the prohibition against presidential appointments under Section 15, Article VII does not extend to appointments in the Judiciary.

The Court agrees with the submission. First. The records of the deliberations of the Constitutional Commission reveal that the framers devoted time to meticulously drafting, styling, and arranging the Constitution. Such meticulousness indicates that the organization and arrangement of the provisions of the Constitution were not arbitrarily or whimsically done by the framers, but purposely made to reflect their intention and manifest their vision of what the Constitution should contain. The Constitution consists of 18 Articles, three of which embody the allocation of the awesome powers of government among the three great departments, the Legislative (Article VI), the Executive (Article VII), and the Judicial Departments (Article VIII). The arrangement was a true recognition of the principle of separation of powers that underlies the political structure, as Constitutional Commissioner Adolfo S. Azcuna (later a worthy member of the Court) explained in his sponsorship speech: We have in the political part of this Constitution opted for the separation of powers in government because we believe that the only way to protect freedom and liberty is to separate and divide the awesome powers of government. Hence, we return to the separation of powers doctrine [66] and the legislative, executive and judicial departments.

As can be seen, Article VII is devoted to the Executive Department, and, among others, it lists the powers vested by the Constitution in the President. The presidential power of appointment is dealt with in Sections 14, 15 and 16 of the Article. Article VIII is dedicated to the Judicial Department and defines the duties and qualifications of Members of the Supreme Court, among others. Section 4(1) and Section 9 of this Article are the provisions specifically providing for the appointment of Supreme Court Justices. In particular, Section 9 states that the appointment of Supreme Court Justices can only be made by the President upon the submission of a list of at least three nominees by the JBC; Section 4(1) of the Article mandates the President to fill the vacancy within 90 days from the occurrence of the vacancy. Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme Court, they could have explicitly done so. They could not have ignored the meticulous ordering of the provisions. They would have easily and surely written the prohibition made explicit in Section 15, Article VII as being equally applicable to the appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such specification was not done only reveals that the prohibition against the President or Acting President making appointments within two months before the next presidential elections and up to the end of the Presidents or Acting Presidents term does not refer to the Members of the Supreme Court.

Although Valenzuela came to hold that the prohibition covered even judicial appointments, it cannot be disputed that the Valenzuela dictum did not firmly rest on the deliberations of the Constitutional Commission. Thereby, the confirmation made to the JBC by then Senior Associate Justice Florenz D. Regalado of this Court, a former member of the Constitutional Commission, about the prohibition not being intended to apply to the appointments to the Judiciary, which confirmationValenzuela even expressly mentioned, should prevail. Relevantly, Valenzuela adverted to the intent of the framers in the genesis of Section 4 (1), Article VIII, viz: V . Intent of the Constitutional Commission

[67]

The journal of the Commission which drew up the present Constitution discloses that the original proposal was to have an eleven-member Supreme Court. Commissioner Eulogio Lerum wanted to increase the number of Justices to fifteen. He also wished to ensure that that number would not be reduced for any appreciable length of time (even only temporarily), and to this end proposed that any vacancy must be filled within two months from the date that the vacancy occurs. His proposal to have a 15-member Court was not initially adopted. Persisting however in his desire to make certain that the size of the Court would not be decreased for any substantial period as a result of vacancies, Lerum proposed the insertion in the provision (anent the Courts membership) of the same mandate that IN CASE OF ANY VACANCY, THE SAME SHALL BE FILLED WITHIN TWO MONTHS FROM OCCURRENCE THEREOF. He later agreed to suggestions to make the period three, instead of two, months. As thus amended, the proposal was approved. As it turned out, however, the Commission ultimately agreed on a fifteen-member Court. Thus it was that the section fixing the composition of the Supreme Court came to include a command to fill up any vacancy therein within 90 days from its occurrence . In this connection, it may be pointed out that that instruction that any vacancy shall be filled within ninety days (in the last sentence of Section 4 (1) of Art icle VIII) contrasts with the prohibition in Section 15, Article VII, which is couched in stronger negative language - that a President or Acting President shall not make appointments The commission later approved a proposal of Commissioner Hilario G. Davide, Jr. (now a Member of this Court) to add to what is now Section 9 of Article VIII, the following paragraph: WITH RESPECT TO LOWER COURTS, THE PRESIDENT SHALL ISSUE THE APPOINTMENT WITHIN NINETY DAYS FROM THE SUBMISSION OF THE LIST (of nominees by the Judicial and Bar Council to the President). Davide stated that his purpose was to provide a uniform rule for lower courts. According to him, the 90-day period should be counted from submission of the list of nominees to the President in view of the possibility that the President might reject the list submitted to him and the JBC thus need more time to submit a new one. On the other hand, Section 15, Article VII - which in effect deprives the President of his appointing power two months immediately before the next presidential elections up to the end [68] of his term - was approved without discussion. However, the reference to the records of the Constitutional Commission did not advance or support the result in Valenzuela. Far to the contrary, the records disclosed the express intent of the framers to enshrine in the Constitution, upon the initiative of Commissioner Eulogio Lerum, a command [to the President] to fill up any vacancy [69] therein within 90 days from its occurrence, which even Valenzuela conceded. The exchanges during deliberations of the Constitutional Commission on October 8, 1986 further show that the filling of a vacancy in the Supreme Court within the 90-day period was a true mandate for the President, viz: MR. DE CASTRO. I understand that our justices now in the Supreme Court, together with the Chief Justice, are only 11. MR. CONCEPCION. Yes. MR. DE CASTRO. And the second sentence of this subsection reads: Any vacancy shall be filled within ninety days from the occurrence thereof. MR. CONCEPCION. That is right. MR. DE CASTRO. Is this now a mandate to the executive to fill the vacancy?

MR. CONCEPCION. That is right. That is borne out of the fact that in the past 30 years, [70] seldom has the Court had a complete complement. Moreover, the usage in Section 4(1), Article VIII of the word shall an imperative, operating to impose a [71] duty that may be enforced should not be disregarded. Thereby, Sections 4(1) imposes on the President the imperative duty to make an appointment of a Member of the Supreme Court within 90 days from the occurrence of the vacancy. The failure by the President to do so will be a clear disobedience to the Constitution. The 90-day limitation fixed in Section 4(1), Article VIII for the President to fill the vacancy in the Supreme Court was undoubtedly a special provision to establish a definite mandate for the President as the appointing power, and cannot be defeated by mere judicial interpretation in Valenzuela to the effect that Section 15, Article VII prevailed because it was couched in stronger negative language. Such interpretation even turned out to be conjectural, in light of the records of the Constitutional Commissions deliberations on Section 4 (1), Article VIII. How Valenzuela justified its pronouncement and result is hardly warranted. According to an authority on [72] statutory construction: xxx the court should seek to avoid any conflict in the provisions of the statute by endeavoring to harmonize and reconcile every part so that each shall be effective. It is not easy to draft a statute, or any other writing for that matter, which may not in some manner contain conflicting provisions. But what appears to the reader to be a conflict may not have seemed so to the drafter. Undoubtedly, each provision was inserted for a definite reason. Often by considering the enactment in its entirety, what appears to be on its face a conflict may be cleared up and the provisions reconciled. Consequently, that construction which will leave every word operative will be favored over one which leaves some word or provision meaningless because of inconsistency. But a word should not be given effect, if to do so gives the statute a meaning contrary to the intent of the legislature. On the other hand, if full effect cannot be given to the words of a statute, they must be made effective as far as possible. Nor should the provisions of a statute which are inconsistent be harmonized at a sacrifice of the legislative intention. It may be that two provisions are irreconcilable; if so, the one which expresses the intent of the law-makers should control. And the arbitrary rule has been frequently announced that where there is an irreconcilable conflict between the different provisions of a statute, the provision last in order of position will prevail, since it is the latest expression of the legislative will. Obviously, the rule is subject to deserved criticism. It is seldom applied, and probably then only where an irreconcilable conflict exists between different sections of the same act, and after all other means of ascertaining the meaning of the legislature have been exhausted. Where the conflict is between two statutes, more may be said in favor of the rules application, largely because of the principle of implied repeal. In this connection, PHILCONSAs urging of a revisit and a review of Valenzuela is timely and appropriate. Valenzuela arbitrarily ignored the express intent of the Constitutional Commission to have Section 4 (1), Article VIII stand independently of any other provision, least of all one found in Article VII. It further ignored that the two provisions had no irreconcilable conflict, regardless of Section 15, Article VII being couched in the negative. As judges, we are not to unduly interpret, and should not accept an interpretation that defeats the intent of the [73] framers. Consequently, prohibiting the incumbent President from appointing a Chief Justice on the premise that Section 15, Article VII extends to appointments in the Judiciary cannot be sustained. A misinterpretation [74] like Valenzuela should not be allowed to last after its false premises have been exposed. It will not do to merely distinguish Valenzuela from these cases, for the result to be reached herein is entirely incompatible with what Valenzuela decreed. Consequently, Valenzuela nowdeserves to be quickly sent to the dustbin of the unworthy and forgettable. We reverse Valenzuela. Second. Section 15, Article VII does not apply as well to all other appointments in the Judiciary. There is no question that one of the reasons underlying the adoption of Section 15 as part of Article VII was to eliminate midnight appointments from being made by an outgoing Chief Executive in the mold of the appointments [75] dealt with in the leading case of Aytona v. Castillo. In fact, in Valenzuela, the Court so observed, stating that:

xxx it appears that Section 15, Article VII is directed against two types of appointments: (1) those made for buying votes and (2) those made for partisan considerations. The first refers to those appointments made within the two months preceding a Presidential election and are similar to those which are declared election offenses in the Omnibus Election Code, viz.: xxx The second type of appointments prohibited by Section 15, Article VII consists of the socalled midnight appointments. In Aytona v. Castillo, it was held that after the proclamation of Diosdado Macapagal as duly elected President, President Carlos P. Garcia, who was defeated in his bid for reelection, became no more than a caretaker administrator whose duty was to prepare for the orderly transfer of authority to the incoming President. Said the Court: The filling up of vacancies in important positions, if few, and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and appointee's qualifications may undoubtedly be permitted. But the issuance of 350 appointments in one night and the planned induction of almost all of them in a few hours before the inauguration of the new President may, with some reason, be regarded by the latter as an abuse of Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all vacant positions irrespective of fitness and other conditions, and thereby to deprive the new administration of an opportunity to make the corresponding appointments. As indicated, the Court recognized that there may well be appointments to important positions which have to be made even after the proclamation of the new President. Such appointments, so long as they are few and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and the appointees qualifications, can be made by the outgoing President. Accordingly, several appointments made by President Garcia, which were shown to have been well considered, were upheld. Section 15, Article VII has a broader scope than the Aytona ruling. It may not unreasonably be deemed to contemplate not only midnight appointments those made obviously for partisan reasons as shown by their number and the time of their making but also appointments presumed made for the purpose of influencing the outcome of the Presidential election. On the other hand, the exception in the same Section 15 of Article VII allowing appointments to be made during the period of the ban therein provided is much narrower than that recognized in Aytona. The exception allows only the making of temporary appointments to executive positions when continued vacancies will prejudice public service or endanger public safety. Obviously, the article greatly restricts the appointing power of the President during the period of the ban. Considering the respective reasons for the time frames for filling vacancies in the courts and the restriction on the President's power of appointment, it is this Courts view that, as a general proposition, in case of conflict, the former should yield to the latter. Surely, the prevention of votebuying and similar evils outweighs the need for avoiding delays in filling up of court vacancies or the disposition of some cases. Temporary vacancies can abide the period of the ban which, incidentally and as earlier pointed out, comes to exist only once in every six years. Moreover, those occurring in the lower courts can be filled temporarily by designation. But prohibited appointments are long-lasting and permanent in their effects. They may, as earlier pointed out, in fact influence the results of elections and, for that reason, their making is considered an election [76] offense.

Given the background and rationale for the prohibition in Section 15, Article VII, we have no doubt that the Constitutional Commission confined the prohibition to appointments made in the Executive Department. The framers did not need to extend the prohibition to appointments in the Judiciary, because their establishment of the JBC and their subjecting the nomination and screening of candidates for judicial positions to the unhurried and

deliberate prior process of the JBC ensured that there would no longer be midnight appointments to the Judiciary. If midnight appointments in the mold of Aytona were made in haste and with irregularities, or made by an outgoing Chief Executive in the last days of his administration out of a desire to subvert the policies of the incoming President [77] or for partisanship, the appointments to the Judiciary made after the establishment of the JBC would not be suffering from such defects because of the JBCs prior processing of candidates. Indeed, it is axiomatic in statutory construction that the ascertainment of the purpose of the enactment is a step in the process of ascertaining the intent or meaning of the enactment, because the reason for the enactment must necessarily shed considerable light on the law of the statute, i.e., the intent; hence, the enactment should be construed with reference to its intended scope and [78] purpose, and the court should seek to carry out this purpose rather than to defeat it. Also, the intervention of the JBC eliminates the danger that appointments to the Judiciary can be made for the purpose of buying votes in a coming presidential election, or of satisfying partisan considerations. The experience from the time of the establishment of the JBC shows that even candidates for judicial positions at any level backed by people influential with the President could not always be assured of being recommended for the consideration of the President, because they first had to undergo the vetting of the JBC and pass muster there. Indeed, the creation of the JBC was precisely intended to de-politicize the Judiciary by doing away with the intervention of the Commission on Appointments. This insulating process was absent from the Aytona midnight appointment. Third. As earlier stated, the non-applicability of Section 15, Article VII to appointments in the Judiciary was confirmed by then Senior Associate Justice Regalado to the JBC itself when it met on March 9, 1998 to discuss the question raised by some sectors about the constitutionality of xxx appointments to the Court of Appeals in light of the forthcoming presidential elections. He assured that on the basis of the (Constitutional) Commissions records, the [79] election ban had no application to appointments to the Court of Appeals. This confirmation was accepted by the JBC, which then submitted to the President for consideration the nominations for the eight vacancies in the Court of [80] Appeals. The fault of Valenzuela was that it accorded no weight and due consideration to the confirmation of Justice Regalado. Valenzuela was weak, because it relied on interpretation to determine the intent of the framers rather than on the deliberations of the Constitutional Commission. Much of the unfounded doubt about the Presidents power to appoint during the period of prohibition in Section 15, Article VII could have been dispelled since its promulgation on November 9, 1998, hadValenzuela properly acknowledged and relied on the confirmation of a distinguished member of the Constitutional Commission like Justice Regalado. Fourth. Of the 23 sections in Article VII, three (i.e., Section 14, Section15, and Section 16) concern the appointing powers of the President. Section 14 speaks of the power of the succeeding President to revoke appointments made by an Acting [81] President, and evidently refers only to appointments in the Executive Department. It has no application to appointments in the Judiciary, because temporary or acting appointments can only undermine the independence of [82] the Judiciary due to their being revocable at will. The letter and spirit of the Constitution safeguard that independence. Also, there is no law in the books that authorizes the revocation of appointments in the Judiciary. Prior to their mandatory retirement or resignation, judges of the first and second level courts and the Justices of the third level courts may only be removed for cause, but the Members of the Supreme Court may be removed only by impeachment. Section 16 covers only the presidential appointments that require confirmation by the Commission on Appointments. Thereby, the Constitutional Commission restored the requirement of confirmation by the Commission on Appointments after the requirement was removed from the 1973 Constitution. Yet, because of Section 9 of Article [83] VIII, the restored requirement did not include appointments to the Judiciary. Section 14, Section 15, and Section 16 are obviously of the same character, in that they affect the power of the President to appoint. The fact that Section 14 and Section 16 refer only to appointments within the Executive Department renders conclusive that Section 15 also applies only to the Executive Department. This conclusion is consistent with the rule that every part of the statute must be interpreted with reference to the context, i.e. that every part must be considered together with the other parts, and kept subservient to the general intent of the whole [84] enactment. It is absurd to assume that the framers deliberately situated Section 15 betweenSection 14 and Section 16, if they intended Section 15 to cover all kinds of presidential appointments. If that was their intention in respect of appointments to the Judiciary, the framers, if only to be clear, would have easily and surely inserted a similar prohibition in Article VIII, most likely within Section 4 (1) thereof. Fifth. To hold like the Court did in Valenzuela that Section 15 extends to appointments to the Judiciary further undermines the intent of the Constitution of ensuring the independence of the Judicial Department from the

Executive and Legislative Departments. Such a holding will tie the Judiciary and the Supreme Court to the fortunes or misfortunes of political leaders vying for the Presidency in a presidential election. Consequently, the wisdom of having the new President, instead of the current incumbent President, appoint the next Chief Justice is itself suspect, and cannot ensure judicial independence, because the appointee can also become beholden to the appointing authority. In contrast, the appointment by the incumbent President does not run the same risk of compromising judicial independence, precisely because her term will end by June 30, 2010. Sixth. The argument has been raised to the effect that there will be no need for the incumbent President to appoint during the prohibition period the successor of Chief Justice Puno within the context of Section 4 (1), Article VIII, because anyway there will still be about 45 days of the 90 days mandated in Section 4(1), Article VIII remaining. The argument is flawed, because it is focused only on the coming vacancy occurring from Chief Justice Punos retirement by May 17, 2010. It ignores the need to apply Section 4(1) to every situation of a vacancy in the Supreme Court. The argument also rests on the fallacious assumption that there will still be time remaining in the 90-day period under Section 4(1), Article VIII. The fallacy is easily demonstrable, as the OSG has shown in its comment. Section 4 (3), Article VII requires the regular elections to be held on the second Monday of May, letting the elections fall on May 8, at the earliest, or May 14, at the latest. If the regular presidential elections are held on May 8, the period of the prohibition is 115 days. If such elections are held on May 14, the period of the prohibition is 109 days. Either period of the prohibition is longer than the full mandatory 90-day period to fill the vacancy in the Supreme Court. The result is that there are at least 19 occasions (i.e., the difference between the shortest possible period of the ban of 109 days and the 90-day mandatory period for appointments) in which the outgoing President would be in no position to comply with the constitutional duty to fill up a vacancy in the Supreme Court. It is safe to assume that the framers of the Constitution could not have intended such an absurdity. In fact, in their deliberations on the mandatory period for the appointment of Supreme Court Justices under Section 4 (1), Article VIII, the framers neither discussed, nor mentioned, nor referred to the ban against midnight appointments under Section 15, Article VII, or its effects on the 90-day period, or vice versa. They did not need to, because they never intended Section 15, Article VII to apply to a vacancy in the Supreme Court, or in any of the lower courts. Seventh. As a matter of fact, in an extreme case, we can even raise a doubt on whether a JBC list is necessary at all for the President any President to appoint a Chief Justice if the appointee is to come from the ranks of the sitting justices of the Supreme Court. Sec. 9, Article VIII says: xxx. The Members of the Supreme Court xxx shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for any vacancy. Such appointments need no confirmation. xxx

The provision clearly refers to an appointee coming into the Supreme Court from the outside, that is, a nonmember of the Court aspiring to become one. It speaks of candidates for the Supreme Court, not of those who are already members or sitting justices of the Court, all of whom have previously been vetted by the JBC. Can the President, therefore, appoint any of the incumbent Justices of the Court as Chief Justice? The question is not squarely before us at the moment, but it should lend itself to a deeper analysis if and when circumstances permit. It should be a good issue for the proposed Constitutional Convention to consider in the light of Senate President Juan Ponce Enriles statement that the President can appoint the Chief Justice from among the sitting justices of the Court even without a JBC list. II The Judiciary Act of 1948 The posture has been taken that no urgency exists for the President to appoint the successor of Chief Justice Puno, considering that the Judiciary Act of 1948 can still address the situation of having the next President appoint the successor.

Section 12 of the Judiciary Act of 1948 states:

Section 12. Vacancy in Office of Chief Justice. In case of a vacancy in the office of Chief Justice of the Supreme Court or of his inability to perform the duties and powers of his office, they shall devolve upon the Associate Justice who is first in precedence, until such disability is removed, or another Chief Justice is appointed and duly qualified. This provision shall apply to every Associate Justice who succeeds to the office of Chief Justice.

The provision calls for an Acting Chief Justice in the event of a vacancy in the office of the Chief Justice, or in the event that the Chief Justice is unable to perform his duties and powers. In either of such circumstances, the duties and powers of the office of the Chief Justice shall devolve upon the Associate Justice who is first in precedence until a new Chief Justice is appointed or until the disability is removed . Notwithstanding that there is no pressing need to dwell on this peripheral matter after the Court has hereby resolved the question of consequence, we do not find it amiss to confront the matter now. We cannot agree with the posture. A review of Sections 4(1) and 9 of Article VIII shows that the Supreme Court is composed of a Chief Justice and 14 Associate Justices, who all shall be appointed by the President from a list of at least three nominees prepared by the JBC for every vacancy, which appointments require no confirmation by the Commission on Appointments. With reference to the Chief Justice, he or she is appointed by the President as Chief Justice, and the appointment is never in an acting capacity. The express reference to a Chief Justice abhors the idea that the framers contemplated an Acting Chief Justice to head the membership of the Supreme Court. Otherwise, they would have simply written so in the Constitution. Consequently, to rely on Section 12 of the Judiciary Act of 1948 in order to forestall the imperative need to appoint the next Chief Justice soonest is to defy the plain intent of the Constitution. For sure, the framers intended the position of Chief Justice to be permanent, not one to be occupied in an acting or temporary capacity. In relation to the scheme of things under the present Constitution, Section 12 of the Judiciary Act of 1948 only responds to a rare situation in which the new Chief Justice is not yet appointed, or in which the incumbent Chief Justice is unable to perform the duties and powers of the office. It ought to be remembered, however, that it was enacted because the Chief Justice appointed under the 1935 Constitution was subject to the confirmation of the Commission on Appointments, and the confirmation process might take longer than expected. The appointment of the next Chief Justice by the incumbent President is preferable to having the Associate Justice who is first in precedence take over. Under the Constitution, the heads of the Legislative and Executive Departments are popularly elected, and whoever are elected and proclaimed at once become the leaders of their respective Departments. However, the lack of any appointed occupant of the office of Chief Justice harms the independence of the Judiciary, because the Chief Justice is the head of the entire Judiciary. The Chief Justice performs functions absolutely significant to the life of the nation. With the entire Supreme Court being the Presidential Electoral Tribunal, the Chief Justice is the Chairman of the Tribunal. There being no obstacle to the appointment of the next Chief Justice, aside from its being mandatory for the incumbent President to make within the 90-day period from May 17, 2010, there is no justification to insist that the successor of Chief Justice Puno be appointed by the next President. Historically, under the present Constitution, there has been no wide gap between the retirement and the resignation of an incumbent Chief Justice, on one hand, and the appointment to and assumption of office of his successor, on the other hand. As summarized in the comment of the OSG, the chronology of succession is as follows: 1. When Chief Justice Claudio Teehankee retired on April 18, 1988, Chief Justice Pedro Yap was appointed on the same day; When Chief Justice Yap retired on July 1, 1988, Chief Justice Marcelo Fernan was appointed on the same day; When Chief Justice Fernan resigned on December 7, 1991, Chief Justice Andres Narvasa was appointed the following day, December 8, 1991; When Chief Justice Narvasa retired on November 29, 1998, Chief Justice Hilario Davide, Jr. was sworn into office the following early morning ofNovember 30, 1998;

2.

3.

4.

5.

When Chief Justice Davide retired on December 19, 2005, Chief Justice Artemio Panganiban was appointed the next day, December 20, 2005; and When Chief Justice Panganiban retired on December 6, 2006, Chief Justice Reynato S. Puno [85] took his oath as Chief Justice at midnight of December 6, 2006. III Writ of mandamus does not lie against the JBC

6.

May the JBC be compelled to submit the list of nominees to the President? Mandamus shall issue when any tribunal, corporation, board, officer or person unlawfully neglects the [86] performance of an act that the law specifically enjoins as a duty resulting from an office, trust, or station. It is proper when the act against which it is directed is one addressed to the discretion of the tribunal or officer. Mandamus is not [87] available to direct the exercise of a judgment or discretion in a particular way. For mandamus to lie, the following requisites must be complied with: (a) the plaintiff has a clear legal right to the act demanded; (b) it must be the duty of the defendant to perform the act, because it is mandated by law; ( c) the defendant unlawfully neglects the performance of the duty enjoined by law; (d) the act to be performed is ministerial, not discretionary; and (e) there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law. Section 8(5) and Section 9, Article VIII, mandate the JBC to submit a list of at least three nominees to the President for every vacancy in the Judiciary: Section 8. xxx (5) The Council shall have the principal function of recommending appointees to the Judiciary. xxx Section 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation. For the lower courts, the President shall issue the appointments within ninety days from the submission of the list.

However, Section 4(1) and Section 9, Article VIII, mandate the President to fill the vacancy in the Supreme Court within 90 days from the occurrence of the vacancy, and within 90 days from the submission of the list, in the case of the lower courts. The 90-day period is directed at the President, not at the JBC. Thus, the JBC should start the process of selecting the candidates to fill the vacancy in the Supreme Court before the occurrence of the vacancy. Under the Constitution, it is mandatory for the JBC to submit to the President the list of nominees to fill a vacancy in the Supreme Court in order to enable the President to appoint one of them within the 90-day period from the occurrence of the vacancy. The JBC has no discretion to submit the list to the President after the vacancy occurs, because that shortens the 90-day period allowed by the Constitution for the President to make the appointment. For the JBC to do so will be unconscionable on its part, considering that it will thereby effectively and illegally deprive the President of the ample time granted under the Constitution to reflect on the qualifications of the nominees named in the list of the JBC before making the appointment. The duty of the JBC to submit a list of nominees before the start of the Presidents mandatory 90-day period to appoint is ministerial, but its selection of the candidates whose names will be in the list to be submitted to the President lies within the discretion of the JBC. The object of the petitions for mandamus herein should only refer to the duty to submit to the President the list of nominees for every vacancy in the Judiciary, because in order to [88] constitute unlawful neglect of duty, there must be an unjustified delay in performing that duty. For mandamus to lie against the JBC, therefore, there should be an unexplained delay on its part in recommending nominees to the Judiciary, that is, in submitting the list to the President. The distinction between a ministerial act and a discretionary one has been delineated in the following manner:

The distinction between a ministerial and discretionary act is well delineated. A purely ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done. If the law imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be performed, such duty is discretionary and not ministerial. Theduty is ministerial only when the discharge of the same requires neither the exercise of official [89] discretion or judgment.

Accordingly, we find no sufficient grounds to grant the petitions for mandamus and to issue a writ of mandamus against the JBC. The actions for that purpose are premature, because it is clear that the JBC still has until May 17, 2010, at the latest, within which to submit the list of nominees to the President to fill the vacancy created by the compulsory retirement of Chief Justice Puno.

IV Writ of prohibition does not lie against the JBC

In light of the foregoing disquisitions, the conclusion is ineluctable that only the President can appoint the Chief Justice. Hence, Sorianos petition for prohibition in G.R. No. 191032, which proposes to prevent the JBC from intervening in the process of nominating the successor of Chief Justice Puno, lacks merit. On the other hand, the petition for prohibition in G.R. No. 191342 is similarly devoid of merit. The challenge mounted against the composition of the JBC based on the allegedly unconstitutional allocation of a vote each to the ex officio members from the Senate and the House of Representatives, thereby prejudicing the chances of some candidates for nomination by raising the minimum number of votes required in accordance with the rules of the JBC, is not based on the petitioners actual interest, because they have not alleged in their petition that they were nominated to the JBC to fill some vacancies in the Judiciary. Thus, the petitioners lack locus standion that issue.

WHEREFORE, the Court: 1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and G.R. No. 191149, and the petition for mandamus in G.R. No. 191057 for being premature; 2. 3. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No. 191342 for lack of merit; and Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the Judicial and Bar Council:

(a) To resume its proceedings for the nomination of candidates to fill the vacancy to be created by the compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010; (b) To prepare the short list of nominees for the position of Chief Justice; (c) To submit to the incumbent President the short list of nominees for the position of Chief Justice on or before May 17, 2010; and (d) To continue its proceedings for the nomination of candidates to fill other vacancies in the Judiciary and submit to the President the short list of nominees corresponding thereto in accordance with this decision. SO ORDERED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 186228 March 15, 2010

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ANTONIO LAUGA Y PINA ALIAS TERIO, Accused-Appellant. DECISION PEREZ, J.: Before Us for final review is the trial courts conviction of the appellant for the rape of his thirteen -year old daughter. 1 Consistent with the ruling of this Court in People v. Cabalquinto, the real name and the personal circumstances of the victim, and any other information tending to establish or compromise her identity, including those of her immediate family or household members, are not disclosed in this decision. The Facts 2 In an Information dated 21 September 2000, the appellant was accused of the crime of QUALIFIED RAPE allegedly committed as follows: That on or about the 15th day of March 2000, in the evening, at Barangay xxx, municipality of xxx, province of Bukidnon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being the father of AAA with lewd design, with the use of force and intimidation, did then and there, willfully, unlawfully and criminally 3 have carnal knowledge with his own daughter AAA, a 13 year[s]old minor against her will. 4 On 12 October 2000, appellant entered a plea of not guilty. During the pre-trial conference, the prosecution and the defense stipulated and admitted: (a) the correctness of the findings indicated in the medical certificate of the physician who examined AAA; (b) that AAA was only thirteen (13) years old when the alleged offense was committed; 5 and (c) that AAA is the daughter of the appellant. On trial, three (3) witnesses testified for the prosecution, namely: 6 7 8 victim AAA; her brother BBB; and one Moises Boy Banting, a "bantay bayan" in the barangay. Their testimonies revealed the following: 9 In the afternoon of 15 March 2000, AAA was left alone at home. AAAs father, the appellant, was having a drinking 10 spree at the neighbors place. Her mother decided to leave because when appellant gets drunk, he has the habit of 11 12 mauling AAAs mother. Her only brother BBB also went out in the company of some neighbors. 13 At around 10:00 oclock in the evening, appellant woke AAA up; removed his pants, slid inside the blanket covering 14 AAA and removed her pants and underwear; warned her not to shout for help while threatening her with his 15 16 fist; and told her that he had a knife placed above her head. He proceeded to mash her breast, kiss her 17 repeatedly, and "inserted his penis inside her vagina." 18 19 Soon after, BBB arrived and found AAA crying. Appellant claimed he scolded her for staying out late. BBB 20 decided to take AAA with him. While on their way to their maternal grandmothers house, AAA recounted her 21 harrowing experience with their father. Upon reaching their grandmothers house, they told their grandmother and 22 23 uncle of the incident, after which, they sought the assistance of Moises Boy Banting. 24 Moises Boy Banting found appellant in his house wearing only his underwear. He invited appellant to the police 25 station, to which appellant obliged. At the police outpost, he admitted to him that he raped AAA because he was 26 unable to control himself. 27 The following day, AAA submitted herself to physical examination. Dra. Josefa Arlita L. Alsula, Municipal Health Officer of x x x, Bukidnon, issued the Medical Certificate, which reads: hyperemic vulvae with 4 oclock & 6 oclock freshly lacerated hymen; (+) minimal to moderate bloody discharges 2 to 28 an alleged raping incident On the other hand, only appellant testified for the defense. He believed that the charge against him was ill-motivated 29 because he sometimes physically abuses his wife in front of their children after engaging in a heated argument, and 30 beats the children as a disciplinary measure. He went further to narrate how his day was on the date of the alleged rape. 31 He alleged that on 15 March 2000, there was no food prepared for him at lunchtime. Shortly after, AAA 32 33 34 arrived. She answered back when confronted. This infuriated him that he kicked her hard on her buttocks. 35 36 Appellant went back to work and went home again around 3 oclock in the afternoon. Finding nobody at home, he 37 prepared his dinner and went to sleep. Later in the evening, he was awakened by the members of the " Bantay Bayan" headed by Moises Boy 38 39 Banting. They asked him to go with them to discuss some matters. He later learned that he was under detention 40 because AAA charged him of rape. 41 On 8 July 2006, the Regional Trial Court, Branch 9, Malaybalay City, Bukidnon, rendered its decision in Criminal Case No. 10372-0, finding appellant guilty of rape qualified by relationship and minority, and sentenced him to suffer 42 the penalty of reclusion perpetua. It also ordered him to indemnify AAA P50,000.00 as moral damages, 43 and P50,000.00 as civil indemnity with exemplary damages of P25,000.00. 44 On 30 September 2008, the decision of the trial court was AFFIRMED with MODIFICATIONS by the Court of 45 Appeals in CA-G.R. CR HC No. 00456-MIN. The appellate court found that appellant is not eligible for parole and it 46 increased both the civil indemnity and moral damages from P50,000.00 to P75,000.00. 47 On 24 November 2008, the Court of Appeals gave due course to the appellants notice of appeal. This Court 48 required the parties to simultaneously file their respective supplemental briefs, but both manifested that they will no 49 longer file supplemental pleadings.

The lone assignment of error in the appellants brief is that, the trial court gravely erred in finding him guilty as 50 charged despite the failure of the prosecution to establish his guilt beyond reasonable doubt, because: (1) there 51 were inconsistencies in the testimonies of AAA and her brother BBB; (2) his extrajudicial confession before Moises 52 Boy Banting was without the assistance of a counsel, in violation of his constitutional right; and (3) AAAs 53 accusation was ill-motivated. Our Ruling Appellant contests the admissibility in evidence of his alleged confession with a " bantay bayan" and the credibility of the witnesses for the prosecution. Admissibility in Evidence of an Extrajudicial Confession before a "Bantay Bayan" Appellant argues that even if he, indeed, confessed to Moises Boy Banting, a "bantay bayan," the confession was inadmissible in evidence because he was not assisted by a lawyer and there was no valid waiver of such 54 requirement. 55 The case of People v. Malngan is the authority on the scope of the Miranda doctrine provided for under Article III, 56 57 Section 12(1) and (3) of the Constitution. In Malngan, appellant questioned the admissibility of her extrajudicial confessions given to the barangay chairman and a neighbor of the private complainant. This Court distinguished. Thus: Arguably, the barangay tanods, including the Barangay Chairman, in this particular instance, may be deemed as law enforcement officer for purposes of applying Article III, Section 12(1) and (3), of the Constitution. When accusedappellant was brought to the barangay hall in the morning of 2 January 2001, she was already a suspect, actually the only one, in the fire that destroyed several houses x x x. She was, therefore, already under custodial investigation and the rights guaranteed by x x x [the] Constitution should have already been observed or applied to her. Accusedappellants confession to Barangay Chairman x x x was made in response to the interrogation made by the latter admittedly conducted without first informing accused-appellant of her rights under the Constitution or done in the presence of counsel. For this reason, the confession of accused-appellant, given to Barangay Chairman x x x, as well as the lighter found x x x in her bag are inadmissible in evidence against her x x x. 1avvphi1 [But such does] not automatically lead to her acquittal. x x x [T]he constitutional safeguards during custodial investigations do not apply to those not elicited through questioning by the police or their agents but given in an ordinary manner whereby the accused verbally admits x x x as x x x in the case at bar when accused-appellant 58 admitted to Mercedita Mendoza, one of the neighbors x x x [of the private complainant]. (Emphasis supplied) Following the rationale behind the ruling in Malngan, this Court needs to ascertain whether or not a " bantay bayan" may be deemed a law enforcement officer within the contemplation of Article III, Section 12 of the Constitution. 59 In People of the Philippines v. Buendia, this Court had the occasion to mention the nature of a " bantay bayan," that is, "a group of male residents living in [the] area organized for the purpose of keeping peace in their 60 community[,which is] an accredited auxiliary of the x x x PNP." Also, it may be worthy to consider that pursuant to Section 1(g) of Executive Order No. 309 issued on 11 November 1987, as amended, a Peace and Order Committee in each barangay shall be organized "to serve as implementing 61 arm of the City/Municipal Peace and Order Council at the Barangay level." The composition of the Committee includes, among others: (1) the Punong Barangay as Chairman; (2) the Chairman of the Sangguniang Kabataan; (3) a Member of the Lupon Tagapamayapa; (4) a Barangay Tanod; and (5) at least three (3) Members of existing Barangay-Based Anti-Crime or neighborhood Watch Groups or a Non Government Organization Representative well62 known in his community. This Court is, therefore, convinced that barangay-based volunteer organizations in the nature of watch groups, as in the case of the "bantay bayan," are recognized by the local government unit to perform functions relating to the preservation of peace and order at the barangay level. Thus, without ruling on the legality of the actions taken by Moises Boy Banting, and the specific scope of duties and responsibilities delegated to a " bantay bayan," particularly on the authority to conduct a custodial investigation, any inquiry he makes has the color of a state-related function and objective insofar as the entitlement of a suspect to his constitutional rights provided for under Article III, Section 12 of the Constitution, otherwise known as the Miranda Rights, is concerned. We, therefore, find the extrajudicial confession of appellant, which was taken without a counsel, inadmissible in evidence. Be that as it may, We agree with the Court of Appeals that the conviction of the appellant was not deduced solely from the assailed extrajudicial confession but "from the confluence of evidence showing his guilt beyond reasonable 63 doubt." Credibility of the Witnesses for the Prosecution Appellant assails the inconsistencies in the testimonies of AAA and her brother BBB. AAA testified that BBB accompanied her to the house of their grandmother. Thereafter, they, together with her relatives, proceeded to look for a "bantay bayan." On the other hand, BBB testified that he brought her sister to the house of their "bantay bayan" after he learned of the incident. 64 Citing Bartocillo v. Court of Appeals, appellant argues that "where the testimonies of two key witnesses cannot 65 stand together, the inevitable conclusion is that one or both must be telling a lie, and their story a mere concoction." The principle, however, is not applicable in the case at bar. In Bartocillo, the two testimonies could not simply stand together because:

On one hand, if we are to believe Susan, Orlando could not have possibly seen the hacking incident since he had accompanied Vicente home. On the other hand, if we are to accept the testimony of Orlando, then Susan could not have possibly witnessed the hacking incident since she was with Vicente at that time. Here, the testimony of AAA does not run contrary to that of BBB. Both testified that they sought the help of a " bantay bayan." Their respective testimonies differ only as to when the help was sought for, which this Court could well attribute to the nature of the testimony of BBB, a shortcut version of AAAs testimony that dispensed with a detailed account of the incident. At any rate, the Court of Appeals is correct in holding that the assailed inconsistency is too trivial to affect the veracity 66 of the testimonies. In fact, inconsistencies which refer to minor, trivial or inconsequential circumstances even strengthen the credibility of the witnesses, as they erase doubts that such testimonies have been coached or 67 rehearsed. Appellants contention that AAA charged him of rape only because she bore grudges against him is likewise unmeritorious. This Court is not dissuaded from giving full credence to the testimony of a minor complainant by 68 motives of feuds, resentment or revenge. As correctly pointed out by the Court of Appeals: Indeed, mere disciplinary chastisement is not strong enough to make daughters in a Filipino family invent a charge that would not only bring shame and humiliation upon them and their families but also bring their fathers into the 69 gallows of death. The Supreme Court has repeatedly held that it is unbelievable for a daughter to charge her own father with rape, exposing herself to the ordeal and embarrassment of a public trial and subjecting her private parts to 70 examination if such heinous crime was not in fact committed. No person, much less a woman, could attain such height of cruelty to one who has sired her, and from whom she owes her very existence, and for which she naturally 71 feels loving and lasting gratefulness. Even when consumed with revenge, it takes a certain amount of psychological depravity for a young woman to concoct a story which would put her own father to jail for the most of his remaining 72 life and drag the rest of the family including herself to a lifetime of shame. It is highly improbable for [AAA] against whom no proof of sexual perversity or loose morality has been shown to fake charges much more against her own father. In fact her testimony is entitled to greater weight since her accusing words were directed against a close 73 relative. Elements of Rape Having established the credibility of the witnesses for the prosecution, We now examine the applicability of the Anti74 Rape Law of 1997 to the case at bar. The law provides, in part, that rape is committed, among others, "[b]y a man who shall have carnal knowledge of a 75 woman" "through force, threat or intimidation." The death penalty shall be imposed if it is committed with aggravating/qualifying circumstances, which include, "[w]hen the victim is under eighteen (18) years of age and the 76 offender is a parent." The consistent and forthright testimony of AAA detailing how she was raped, culminating with the penetration of appellants penis into her vagina, suffices to prove that appellant had carnal knowledge of her. When a woman states 77 that she has been raped, she says in effect all that is necessary to show that rape was committed. Further, when such testimony corresponds with medical findings, there is sufficient basis to conclude that the essential requisites of 78 carnal knowledge have been established. The Court of Appeals pointed out that the element of force or intimidation is not essential when the accused is the father of the victim, inasmuch as his superior moral ascendancy or influence substitutes for violence and 79 intimidation. At any rate, AAA was actually threatened by appellant with his fist and a knife allegedly placed above 80 AAAs head. It may be added that the self-serving defense of appellant cannot prevail over the positive and straightforward testimony of AAA. Settled is the rule that, "alibi is an inherently weak defense that is viewed with suspicion because it 81 is easy to fabricate." "Alibi and denial must be supported by strong corroborative evidence in order to merit 82 credibility." Moreover, for the defense of alibi to prosper, the accused must establish two elements (1) he was not at the locus delicti at the time the offense was committed; and (2) it was physically impossible for him to be at the 83 scene at the time of its commission. Appellant failed in this wise. Aggravating/Qualifying Circumstances The presence of the qualifying circumstances of minority and relationship with the offender in the instant case has likewise been adequately established. Both qualifying circumstances were specifically alleged in the Information, stipulated on and admitted during the pre-trial conference, and testified to by both parties in their respective testimonies. Also, such stipulation and admission, as correctly pointed out by the Court of Appeals, are binding upon this Court because they are judicial admissions within the contemplation of Section 4, Rule 129 of the Revised Rules of Court. It provides: Sec. 4. Judicial admissions. - An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. Penalty Finally, in increasing the amount of civil indemnity and damages each from P50,000.00 to P75,000.00, the Court of Appeals correctly considered controlling jurisprudence to the effect that where, as here, the rape is committed with any of the qualifying/aggravating circumstances warranting the imposition of the death penalty, the victim is entitled

to P75,000.00 as civil indemnity ex delicto and P75,000.00 as moral damages. However, the award of exemplary 86 damages should have been increased from P25,000.00 to P30,000.00. Also, the penalty of reclusion perpetua in lieu of death was correctly imposed considering that the imposition of the death penalty upon appellant would have been appropriate were it not for the enactment of Republic Act No. 9346, or An Act Prohibiting the Imposition of 87 Death Penalty in the Philippines. We further affirm the ruling of the Court of Appeals on appellants non -eligibility for parole. Sec. 3 of Republic Act No. 9346 clearly provides that "persons convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua by reason of the law, shall not be eligible for parole." WHEREFORE, the Decision of the Court of Appeals dated 30 September 2008 in CA-G.R. CR HC No. 00456-MIN is hereby AFFIRMED. Appellant Antonio Lauga is GUILTY beyond reasonable doubt of qualified rape, and is hereby sentenced to suffer the penalty of reclusion perpetua without eligibility for parole and to pay AAAP75,000.00 as civil indemnity, P75,000.00 as moral damages, and P30,000.00 as exemplary damages. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R No. 188078 January 25, 2010 VICTORINO B. ALDABA, CARLO JOLETTE S. FAJARDO, JULIO G. MORADA, and MINERVA ALDABA MORADA, Petitioners, vs. COMMISSION ON ELECTIONS, Respondent. DECISION CARPIO, J.: The Case This is an original action for Prohibition to declare unconstitutional Republic Act No. 9591 (RA 9591), creating a legislative district for the city of Malolos, Bulacan, for violating the minimum population requirement for the creation of a legislative district in a city. Antecedents Before 1 May 2009, the province of Bulacan was represented in Congress through four legislative districts. The First 1 Legislative District comprised of the city of Malolos and the municipalities of Hagonoy, Calumpit, Pulilan, Bulacan, 2 and Paombong. On 1 May 2009, RA 9591 lapsed into law, amending Malolos City Charter, by creating a separate legislative district for the city. At the time the legislative bills for RA 9591 were filed in Congress in 2007, namely, House Bill No. 3162 (later converted to House Bill No. 3693) and Senate Bill No. 1986, the population of Malolos City was 223,069. The population of Malolos City on 1 May 2009 is a contested fact but there is no dispute that House Bill No. 3693 relied on an undated certification issued by a Regional Director of the National Statistics Office (NSO) that "the projected population of the Municipality of Malolos will be 254,030 by the year 2010 using the population growth 3 rate of 3.78 between 1995 to 2000." Petitioners, taxpayers, registered voters and residents of Malolos City, filed this petition contending that RA 9591 is unconstitutional for failing to meet the minimum population threshold of 250,000 for a city to merit representation in Congress as provided under Section 5(3), Article VI of the 1987 Constitution and Section 3 of the Ordinance appended to the 1987 Constitution. In its Comment to the petition, the Office of the Solicitor General (OSG) contended that Congress use of projected population is non-justiciable as it involves a determination on the "wisdom of the standard adopted by the legislature 4 to determine compliance with [a constitutional requirement]." The Ruling of the Court We grant the petition and declare RA 9591 unconstitutional for being violative of Section 5(3), Article VI of the 1987 Constitution and Section 3 of the Ordinance appended to the 1987 Constitution The 1987 Constitution requires that for a city to have a legislative district, the city must have "a population of at least 5 two hundred fifty thousand." The only issue here is whether the City of Malolos has a population of at least 250,000, whether actual or projected, for the purpose of creating a legislative district for the City of Malolos in time for the 10 May 2010 elections. If not, then RA 9591 creating a legislative district in the City of Malolos is unconstitutional. House Bill No. 3693 cites the undated Certification of Regional Director Alberto N. Miranda of Region III of the National Statistics Office (NSO) as authority that the population of the City of Malolos "will be 254,030 by the year 2010." The Certification states that the population of "Malolos, Bulacan as of May 1, 2000 is 175,291." The Certification further states that it was "issued upon the request of Mayor Danilo A. Domingo of the City of Malolos in 6 connection with the proposed creation of Malolos City as a lone congressional district of the Province of Bulacan." The Certification of Regional Director Miranda, which is based on demographic projections, is without legal effect because Regional Director Miranda has no basis and no authority to issue the Certification. The Certification is also void on its face because based on its own growth rate assumption, the population of Malolos will be less than 250,000 in the year 2010. In addition, intercensal demographic projections cannot be made for the entire year. In any

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event, a city whose population has increased to 250,000 is entitled to have a legislative district only in the 7 "immediately following election" after the attainment of the 250,000 population. First, certifications on demographic projections can be issued only if such projections are declared official by the National Statistics Coordination Board (NSCB). Second, certifications based on demographic projections can be issued only by the NSO Administrator or his designated certifying officer. Third, intercensal population projections must be as of the middle of every year. 8 Section 6 of Executive Order No. 135 dated 6 November 1993 issued by President Fidel V. Ramos provides: SECTION 6. Guidelines on the Issuance of Certification of Population sizes Pursuant to Section 7, 386, 442, 450, 452, and 461 of the New Local Government Code. (a) The National Statistics Office shall issue certification on data that it has collected and processed as well as on statistics that it has estimated. (b) For census years, certification on population size will be based on actual population census counts; while for the intercensal years, the certification will be made on the basis of a set of demographic projections or estimates declared official by the National Statistical Coordination Board (NSCB). (c) Certification of population census counts will be made as of the census reference date, such as May 1, 1990, while those of intercensal population estimates will be as of middle of every year. (d) Certification of population size based on projections may specify the range within which the true count is deemed likely to fall. The range will correspond to the official low and high population projections. (e) The smallest geographic area for which a certification on population size may be issued will be the barangay for census population counts, and the city or municipality for intercensal estimates. If an LGU wants to conduct its own population census, during offcensus years, approval must be sought from the NSCB and the conduct must be under the technical supervision of NSO from planning to data processing. (f) Certifications of population size based on published census results shall be issued by the Provincial Census Officers or by the Regional Census Officers. Certifications based on projections or estimates, however, will be issued by the NSO Administrator or his designated certifying officer. (Emphasis supplied) The Certification of Regional Director Miranda does not state that the demographic projections he certified have been declared official by the NSCB. The records of this case do not also show that the Certification of Regional Director Miranda is based on demographic projections declared official by the NSCB. The Certification, which states that the population of Malolos "will be 254,030 by the year 2010," violates the requirement that intercensal demographic projections shall be "as of the middle of every year." In addition, there is no showing that Regional Director Miranda has been designated by the NSO Administrator as a certifying officer for demographic projections in Region III. In the absence of such official designation, only the certification of the NSO Administrator can be given credence by this Court. Moreover, the Certification states that "the total population of Malolos, Bulacan as of May 1, 2000 is 175,291." The Certification also states that the population growth rate of Malolos is 3.78% per year between 1995 and 2000. Based on a growth rate of 3.78% per year, the population of Malolos of 175,291 in 2000 will grow to only 241,550 in 2010. 9 Also, the 2007 Census places the population of Malolos at 223,069 as of 1 August 2007. Based on a growth rate of 3.78%, the population of Malolos will grow to only 248,365 as of 1 August 2010. Even if the growth rate is compounded yearly, the population of Malolos of 223,069 as of 1 August 2007 will grow to only 249,333 as of 1 10 August 2010. All these conflict with what the Certification states that the population of Malolos "will be 254,030 by the year 2010." Based on the Certifications own growth rate assumption, the population of Malolos will be less than 250,000 before the 10 May 2010 elections. Incidentally, the NSO has no published population projections for individual municipalities 11 or cities but only for entire regions and provinces. Executive Order No. 135 cannot simply be brushed aside. The OSG, representing respondent Commission on Elections, invoked Executive Order No. 135 in its Comment, thus: Here, based on the NSO projection, "the population of the Municipality of Malolos will be 254,030 by the year 2010 using the population growth rate of 3.78 between 1995-2000." This projection issued by the authority of the NSO Administrator is recognized under Executive Order No. 135 (The Guidelines on the Issuance of Certification of Population Sizes), which states: xxx (d) Certification of population size based on projections may specify the range within which the true count is deemed likely to fall. The range will correspond to the official low and high population projections. xxx (f) Certifications of population size based on published census results shall be issued by the Provincial Census Officers or by the Regional Census Officers. Certifications based on projections or estimates, however, will be issued 12 by the NSO Administrator or his designated certifying officer. (Emphasis supplied) Any population projection forming the basis for the creation of a legislative district must be based on an official and credible source. That is why the OSG cited Executive Order No. 135, otherwise the population projection would be unreliable or speculative. Section 3 of the Ordinance appended to the 1987 Constitution provides:

Any province that may 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. xxx. (Emphasis supplied) A city that has attained a population of 250,000 is entitled to a legislative district only in the "immediately following election." In short, a city must first attain the 250,000 population, and thereafter, in the immediately following election, such city shall have a district representative. There is no showing in the present case that the City of Malolos has attained or will attain a population of 250,000, whether actual or projected, before the 10 May 2010 elections. Clearly, there is no official record that the population of the City of Malolos will be at least 250,000, actual or projected, prior to the 10 May 2010 elections, the immediately following election after the supposed attainment of such population. Thus, the City of Malolos is not qualified to have a legislative district of its own under Section 5(3), Article VI of the 1987 Constitution and Section 3 of the Ordinance appended to the 1987 Constitution. On the OSGs contention that Congress choice of means to comply with the population requirement in the creation of a legislative district is non-justiciable, suffice it to say that questions calling for judicial determination of compliance with constitutional standards by other branches of the government are fundamentally justiciable. The resolution of such questions falls within the checking function of this Court under the 1987 Constitution to determine whether there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or 13 instrumentality of the Government. Even under the 1935 Constitution, this Court had already ruled, "The overwhelming weight of authority is that district 14 apportionment laws are subject to review by the courts." Compliance with constitutional standards on the creation of legislative districts is important because the "aim of legislative apportio nment is to equalize population and voting 15 power among districts." WHEREFORE, we GRANT the petition. We DECLARE Republic Act No. 9591 UNCONSTITUTIONAL for being violative of Section 5(3), Article VI of the 1987 Constitution and Section 3 of the Ordinance appended to the 1987 Constitution. SO ORDERED. ANTONIO T. CARPIO Associate Justice Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 170365 February 2, 2010 ABDUL GAFFAR P.M. DIBARATUN, Petitioner, vs. COMMISSION ON ELECTIONS and ABDUL CARIM MALA ABUBAKAR, Respondents. DECISION PERALTA, J.: 1 This is a petition for certiorari of the Resolution of the Commission on Elections (COMELEC) en banc dated October 17, 2005 in SPA No. 02-481, which declared a failure of elections in Precinct No. 6A/7A, Barangay Bagoainguid, 2 Municipality of Tugaya, Lanao del Sur and annulled the proclamation of petitioner Abdul Gaffar P.M. Dibaratun as the duly elected Punong Barangay of Barangay Bagoainguid in the July 15, 2002 Synchronized Barangay and Sangguniang Kabataan Elections. The facts are as follows: 3 Respondent Abdulcarim Mala Abubakar, a re-electionist candidate for the position of Punong Barangay of Barangay 4 Bagoainguid, Tugaya, Lanao del Sur, filed a petition before the COMELEC to declare a failure of elections in Precinct No. 6A/7A, Barangay Bagoainguid, Tugaya, Lanao del Sur and to annul the proclamation of petitioner Abdul Gaffar P.M. Dibaratun as the duly elected Punong Barangay of Barangay Bagoainguid in the July 15, 2002 Synchronized Barangay and Sangguniang Kabataan Elections. In his petition, respondent Abubakar alleged: xxxx 3. That on July 15, 2002 at around 10:30 o clock in the morning, the casting of votes in the above named precinct was commenced at its designated Polling Place in Cayagan Elementary School and while only ten (10) voters had actually voted, a certain ALIPECRY ACOP GAFFAR, who is the son of respondent Punong Barangay candidate ABDULGAFFAR DIBARATUN got inside the polling place and was caught in possession of Three (3) filled up ballots where candidate ABDULGAFFAR DIBARATUN were voted which he wanted to place or insert inside the ballot box for official (sic). 4. That when said ALIPECRY GAFFAR was confronted by the petitioners watcher and ot her watchers confronted him of said official ballots, he got mad and flared up and committed violence which disrupted and stopped the casting of votes and because of the commotion, the chairman left the ballot box which was held by the companions of Alipecry Acop Gaffar and destroyed the said ballot box, took the official ballot contained therein and inserted, placed therein a bundle of substituted ballots.

5. That due to the facts adverted to above, the casting of votes was stopped and it was never resumed nor continued. Only Ten (10) voters had actually voted out of One Hundred Fifty One (151) registered voters. 6. That even candidates for Barangay Chairmen and Barangay Kagawad were unable to cast their votes because the casting of votes was illegally disturbed, disrupted, interrupted and stopped by Alipecry Acop Gaffar despite the presence of numerous registered voters ready to cast their votes. xxxx 9. The Election Officer knowing fully that there was really a failure of election in the said precinct recommended that a special election be called for the said precinct. 10. That unknown to the petitioner, the respondent Board of Election Inspectors, in conspiracy and connivance with respondent Abdulgaffar Dibaratun, surreptitiously and clandestinely canvassed the election returns and then illegally proclaimed the respondent Abdulgaffar Dibaratun and issued Certificate of Canvass of Votes and Proclamation of Winning Candidates dated July 16, 2002 which was ant[e]dated 5 xerox copy of which is hereto attached as Annex "C" hereof. Respondents therein filed their Answer denying the allegations of herein private respondent. They contended that as 10 voters had actually voted, there was no failure of elections in the aforementioned precinct. They further contended that the petition was filed out of time. In the Resolution dated October 17, 2005, the COMELEC en banc granted the petition, the dispositive portion of which reads: WHEREFORE, premises considered, the Commission (en banc) RESOLVED, as it hereby RESOLVES, to GIVE DUE COURSE to the instant petition. ACCORDINGLY, the proclamation of respondent Abdulgaffar P.M. Dibaratun as the duly elected Punong Barangay of Barangay Bagoainguid, Tugaya, Lanao del Sur is hereby ANNULLED and he is thus ORDERED to CEASE AND DESIST from exercising the powers and responsibilities of the said office. Pending the conduct of the special elections yet to be scheduled by this Commission and until no Punong Barangay has been duly elected and qualified, the incumbent Punong Barangay shall continue to exercise the powers and duties of such office in a hold-over capacity in accordance with Section 5 of R.A. No. 9164 (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). Let the Office of the Deputy Executive Director for Operations (ODEDO), this Commission, furnish a copy of this 6 Resolution to the Provincial Election Supervisor of Lanao del Sur for the implementation of the same upon its finality. Dibaratun filed this petition, raising the following issues: 1) The COMELEC en banc gravely abused its discretion amounting to lack or excess of jurisdiction when it unjustly gave due course to the unmeritorious petition of respondent Abubakar for the simple reason that it was filed out of time and the validity of the proclamation of petitioner Dibaratun on July 16, 2002 can no longer be legally assailed after the expiration of ten (10) days. 2) Private respondent Abubakar is estopped to assert whatever rights he has in the election laws/rules of procedure when he desparately failed to make the proper objections during the casting, counting and canvassing of votes, and, therefore, the COMELEC en banc gravely abused its discretion amounting to lack or excess of jurisdiction when it erroneously heard and considered the unmeritorious petition of respondent Abubakar. 3) Public respondent COMELEC en banc gravely abused its discretion amounting to lack or excess of jurisdiction when it erroneously declared failure of elections in Precinct No. 6A/7A of Barangay Bagoainguid, 7 Tugaya, Lanao del Sur and called for special elections in the said precinct. The main issue is whether or not the COMELEC en banc committed grave abuse of discretion amounting to lack or excess of jurisdiction in declaring a failure of elections in Precinct No. 6A/7A of Barangay Bagoainguid, Tugaya, Lanao del Sur and in annulling the proclamation of petitioner as the elected Punong Barangay. The petition is unmeritorious. The 1987 Constitution vests in the COMELEC the broad power to enforce all the laws and regulations relative to the conduct of elections, as well as the plenary authority to decide all questions affecting elections except the question as 8 to the right to vote. Section 6 of the Omnibus Election Code provides for the instances when the COMELEC may declare failure of elections, thus: SEC. 6. Failure of election. If, on account of force majeure, violence, terrorism, fraud, or other analogous causes the election in any polling place has 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 any 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. Sec. 6 of the Omnibus Election Code is reflected in Sec. 2, Rule 26 of the COMELEC Rules of Procedure.

In its Resolution, the COMELEC en banc, citing Banaga, Jr. v. Commission on Elections, enumerated the three instances when a failure of elections may be declared by the Commission: (1) the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud or other analogous causes; (2) the election in any polling place had been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud or other analogous causes; or (3) after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect on account of force majeure, violence, terrorism, fraud or other analogous causes.1avvphi1 Before the COMELEC can act on a verified petition seeking to declare a failure of elections, two conditions must concur: (1) no voting took place in the precinct or precincts on the date fixed by law, or even if there was voting, the 10 election resulted in a failure to elect; and (2) the votes not cast would have affected the result of the elections. The cause of such failure of election could only be any of the following: force majeure, violence, terrorism, fraud or other 11 analogous causes. The COMELEC en banc based its decision to declare a failure of elections in Precinct No. 6A/7A on the second instance stated in Section 6 of the Omnibus Election Code, that is, the election in any polling place had been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud or other analogous causes. The COMELEC en banc held that in this case, it was undisputed that after only 10 registered voters cast their votes, the voting was suspended before the hour fixed by law by reason of violence. This was supported by the affidavits submitted by both petitioner and private respondent, who only disagreed as to the perpetrator of the violence as each party blamed the other party. In its Resolution, the COMELEC en banc averred: The letter of Mayor Abdul Jabbar Mangawan A.P. Balindong, Municipal Mayor of Tugaya, Lanao Del Sur, addressed to Chairman Benjamin Abalos, Sr., the Joint Affidavit of Norhata M. Ansari and Sahara T. Guimba, Poll Clerk and Third Member, respectively, of the Board of Election Inspectors of Precinct No. 6A/7A of Barangay Bagoainguid and the Joint Affidavit of PO1 Yahya M. Dirindigun and PO1 Casary C. Modasir all state that it is the petitioner and his relatives and followers who started the violence that caused the suspension of the voting. Meanwhile, the affidavits submitted by the witnesses of the petitioner all state that it is respondent Dibaratun and his followers and relatives who were the cause of the violence which resulted in the suspension of the election after only 12 ten (10) people managed to vote. The COMELEC en banc ruled that since both parties agreed that the elections were suspended before the hour fixed by law due to violence caused by undetermined persons, there was obviously a failure of elections in the 13 aforementioned precinct. The findings of fact of the COMELEC en banc are binding on this Court. The grounds for failure of election (i.e., force majeure, violence, terrorism, fraud, or other analogous cases) involve questions of fact, which can only be 14 determined by the COMELEC en banc after due notice to and hearing of the parties. An application for certiorari 15 against actions of the COMELEC is confined to instances of grave abuse of discretion, amounting to lack or excess of jurisdiction. The COMELEC, as the administrative agency and specialized constitutional body charged with the enforcement and administration of all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall, has the expertise in its field so that its findings and conclusions are generally respected by 16 and conclusive on the Court. Thus, the Court agrees with the COMELEC that the elections in Precinct No. 6A/7A were suspended before the hour fixed by law for the closing of the voting due to violence. Only 10 voters were able to cast their votes out of 151 registered voters; hence, the votes not cast would have affected the result of the elections. The concurrence of these two conditions caused the COMELEC en banc to declare a failure of elections. When there is failure of elections, the 17 COMELEC is empowered to annul the elections and to call for special elections. Public respondent, therefore, did not commit grave abuse of discretion in its resolution of the case. Moreover, petitioner contends that respondent Abubakars petition for the declaration of failure of elections and to annul the proclamation of petitioner was in the nature of a pre-proclamation controversy under Sec. 241 of the Omnibus Election Code, but respondent failed to comply with the procedures therefor. Petitioner also contends that the petition was filed out of time, and that respondent failed to pay the docket fees on time. Petitioners arguments lack merit. Respondent Abubakars petition for declaration of failure of elections falls under Sec. 6 of the Omnibus Election Code. The allegations in respondents petition constitute one of the instances for the declaration by the COMELEC of failure of elections in Precinct No. 6A/7A. Hence, the COMELEC en banc took cognizance of the petition pursuant to 18 Sec. 4 of Republic Act No. 7166, thus: SEC. 4. Postponement, Failure of Elections and Special Elections.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 19 failure of election may occur before or after the casting of votes or on the day of the election.

The Court finds the petition for declaration of failure of elections under Section 6 of the Omnibus Election Code to be in order, and it was properly disposed of by the COMELEC en banc. Hence, petitioner erred in contending that the petition of respondent Abubakar was in the nature of a pre-proclamation controversy under Sec. 241 of the Omnibus Election Code, but failed to comply with the procedures therefor. The issue addressed by the COMELEC en banc was whether the evidence submitted supported the allegations in the petition that violence suspended the elections in Precinct No. 6A/7A, Barangay Bagoainguid, Tugaya, Lanao del Sur, before the hour fixed by law for the closing of the voting on July 15, 2002, which resulted in failure of elections. The issue does not fall under pre-proclamation controversies. The issues that may be ventilated in a pre-proclamation controversy are enumerated in Sec. 243 of the 20 Omnibus Election Code, thus: 1. Illegal composition or proceedings of the board of canvassers; 2. The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of the Omnibus Election Code; 3. The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and 4. When substitute or fraudulent returns in controverted polling places were canvassed, the results of which 21 materially affected the standing of the aggrieved candidate or candidates. A petition to declare a failure of elections is neither a pre-proclamation controversy as classified under Sec. 5 (h), 22 Rule 1 of the Revised COMELEC Rules of Procedure, nor an election case. Further, petitioners basis for the allegation that private respondents petition was filed out of time is Sec. 252 of the 23 Omnibus Election Code, covering election contests for barangay offices, wherein a petition is filed with the proper municipal or metropolitan trial court within ten days after the proclamation of the results of the election. Granting that the petition filed was for an election contest, it would have been filed on time, since it was filed on July 26, 2002, which was within the ten-day period from the proclamation of petitioner on July 16, 2002. However, the petition filed by private respondent was not for an election contest under Sec. 252 of the Omnibus Election Code, but for the declaration of failure of elections under Section 6 of the same Code. The Court notes that 24 the provisions on failure of elections in Section 6 of the Omnibus Election Code and Sec. 2, Rule 26 of the COMELEC Rules of Procedure do not provide for a prescriptive period for the filing of a petition for declaration of failure of elections. It appears that the COMELEC en banc has the discretion whether or not to take cognizance of such petition. In this case, the petition was filed 11 days after the scheduled election. In its Resolution, the COMELEC en banc declared that petitioners allegation that the petition was filed out of time was rendered moot and academic 25 by the fact that the petition was already heard by the Commission and submitted for resolution. The COMELECs resolution of private respondents petition was in keeping with its function to ensure the holding of free, orderly, honest, peaceful, and credible elections. Lastly, petitioners allegation that private respondent failed to pay the docket fee on time does not appear to have been raised before the COMELEC; hence, it cannot be raised for the first time on appeal. Petitioners allegation of grave abuse of discretion by public respondent COMELEC en banc implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction or, in other words, the exercise of the power in an arbitrary manner by reason of passion, prejudice, or personal hostility; and it must be so patent or gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in 26 contemplation of law. It is not present in this case, as public respondent issued the COMELEC Resolution dated October 17, 2005 based on the evidence on record and the law on the matter. WHEREFORE, the instant petition for certiorari is hereby DISMISSED. SO ORDERED. EN BANC PHILIPPINE COCONUT PRODUCERS FEDERATION, INC. (COCOFED), MANUEL V. DEL ROSARIO, DOMINGO P. ESPINA, SALVADOR P. BALLARES, JOSELITO A. MORALEDA, PAZ M. YASON, VICENTE A. CADIZ, CESARIA DE LUNA TITULAR, and RAYMUNDO C. DE VILLA, Petitioners, - versus REPUBLIC OF THE PHILIPPINES, Respondent. JOVITO R. SALONGA, WIGBERTO E. TAADA, OSCAR F. SANTOS, ANA THERESIA HONTIVEROS, and TEOFISTO L. GUINGONA III, Oppositors-Intervenors. G.R. Nos. 177857-58

Present: PUNO, C.J., CARPIO, CORONA, CARPIO MORALES, VELASCO, JR., * NACHURA, * LEONARDO-DE CASTRO, BRION, * PERALTA, BERSAMIN, DEL CASTILLO,

WIGBERTO E. TAADA, OSCAR F. SANTOS, SURIGAO DEL SUR FEDERATION OF AGRICULTURAL COOPERATIVES (SUFAC) and MORO FARMERS ASSOCIATION OF ZAMBOANGA DEL SUR (MOFAZS), represented by ROMEO C. ROYANDOYAN; and PAMBANSANG KILUSAN NG MGA SAMAHAN NG MAGSASAKA (PAKISAMA), represented by VICENTE FABE, Movants-Intervenors. x---------------------------------------------x DANILO B. URUSA, Petitioner, - versusREPUBLIC OF THE PHILIPPINES, Respondent. x---------------------------------------------x EDUARDO M. COJUANGCO, JR., Petitioner, - versusREPUBLIC OF THE PHILIPPINES, Respondent.

ABAD, VILLARAMA, JR., PEREZ, and MENDOZA, JJ.

G.R. No. 178193

G.R. No. 180705

Promulgated: February 11, 2010 x-----------------------------------------------------------------------------------------x RESOLUTION VELASCO, JR., J.:

[1]

Before us is the motion for reconsideration of the Resolution of the Court dated September 17, 2009, interposed by oppositors-intervenors Jovito R. Salonga, Wigberto E. Taada, Oscar F. Santos, Ana Theresa Hontiveros, and Teofisto L. Guingona III. As may be recalled, the Court, in its resolution adverted to, approved, upon motion of petitioner Philippine Coconut Producers Federation, Inc. (COCOFED), the conversion of the sequestered 753,848,312 Cla ss A and B common shares of San Miguel Corporation (SMC), registered in the name of Coconut Industry Investment Fund (CIIF) Holding Companies (hereunder referred to as SMC Common Shares), into 753,848,312 SMC Series 1 Preferred Shares. Oppositors-intervenors Salonga, et al. anchor their plea for reconsideration on the following submission or issues: 1 The conversion of the shares is patently disadvantageous to the government and the coconut farmers, given that SMCs option to redeem ensures that the shares will be bought at less than their market value. 2

The honorable court overlooks the value of the fact that the government, as opposed to the current administration, is the winning party in the case below and thus has no incentive to [2] convert. The Court is not inclined to reconsider. The two (2) issues and the arguments and citations in support thereof are, for the most part and with slight variations, clearly replications of oppositors-intervenors previous position presented in opposition to COCOFEDs motion for approval of the conversion in question. They have been amply considered, discussed at length, and found to be bereft of merit. Oppositors-intervenors harp on the perceived economic disadvantages and harm that the government would likely suffer by the approval of the proposed conversion. Pursuing this point, it is argued that the Court missed the fact that the current value of the shares in question is increasing and the perceived advantages of pegging the issue [3] price at PhP 75 are dwindling on a daily basis. Oppositors-intervenors concerns, encapsulated above, have been adequately addressed in some detail in the resolution subject of this motion. For reference we reproduce what we wrote: Salonga, et al. also argue that the proposed redemption is a right to buy the preferred shares at less than the market value. That the market value of the preferred shares may be higher than the issue price of PhP 75 per share at the time of redemption is possible. But then the opposite scenario is also possible. Again, the Court need not delve into policy decisions of government agencies because of their expertise and special knowledge of these matters. Suffice it to say that all indications show that SMC will redeem said preferred shares in the third year and not later because the dividend rate of 8% it has to pay on said shares is higher than the interest it will pay to the banks in case it simply obtains a loan. When market prices of shares are low, it is possible that interest rate on loans will likewise be low. On the other hand, if SMC has available cash, it would be prudent for it to use such cash to redeem the shares than place it in a regular bank deposit which will earn lower interests. It is plainly expensive and costly for SMC to keep on paying the 8% dividend rate annually in the hope that the market value of the shares will go up before it redeems the shares. Likewise, the conclusion that respondent Republic will suffer a loss corresponding to the difference between a high market value and the issue price does not take into account the dividends to be earned by the preferred shares for the three years prior to redemption. The guaranteed PhP 6 per share dividend multiplied by three years will amount to PhP 18. If one adds PhP 18 to the issue price of PhP 75, then the holders of the preferred shares will have actually attained a price of PhP 93 which hews closely to the speculative [4] PhP 100 per share price indicated by movants-intervenors. (Emphasis added.)

Elaborating on how the value of the sequestered shares will be preserved and conserved, we said: Moreover, the conversion may be viewed as a sound business strategy to preserve and conserve the value of the governments interests in CIIF SMC shares. Preservation is attained by fixing the value today at a significant premium over the market price and ensuring that such value is not going to decline despite negative market conditions. Conservation is realized thru an improvement in the earnings value via the 8% per annum dividends versus the uncertain and most likely lower dividends on common shares.

In this recourse, it would appear that oppositors-intervenors seem unable to accept, in particular, the soundness angle of the conversion. But as we have explained, the conversion of the shares along with the safeguards attached thereto will ensure that the value of the shares will be preserved. In effect, due to the nature of stocks in general and the prevailing business conditions, the government, through the Presidential Commission on Good Government (PCGG), chose not to speculate with the CIIF SMC shares, as prima facie public property, in the hope that there would be a brighter economy in the future, and that the value of the shares would increase. We must respect the decision of the executive department, absent a clear showing of grave abuse of discretion. Next, oppositors-intervenors argue that: The very reason why the PCGG and the OSG [Office of Solicitor General] are before this Honorable Court is precisely because, on their own, they have no authority to alter the nature of the

sequestered shares. This fact ought not to be novel to this Honorable Court because it is the Court itself that established such jurisprudence. Thus, the reference to separation of powers is rather [5] gratuitous.

The Court to be sure agrees with the thesis that, under present state of things, the PCGG and the Office of the Solicitor General have no power, by themselves, to convert the sequestered shares of stock. That portion, however, about the reference to the separation of powers being gratuitous does not commend itself for concurrence. As may be noted, the reference to the separation of powers concept was made in the context that the ownership of the subject sequestered shares is the subject of a case before this Court; hence, the need of the Courts approval for the desired conversion is effected. Apropos the separation of powers doctrine and its relevance to this case, it may well be appropriate to again [6] quote the following excerpts from our decision inJG Summit Holdings, Inc. v. Court of Appeals, to wit: The role of the Courts is to ascertain whether a branch or instrumentality of the Government has transgressed its constitutional boundaries. But the Courts will not interfere with executive or legislative discretion exercised within those boundaries. Otherwise, it strays into the realm of policy decision-making.
[7]

and our complementary holding in Ledesma v. Court of Appeals,

thus:

x x x [A] court is without power to directly decide matters over which full discretionary authority has been delegated to the legislative or executive branch of the government. It is not empowered to substitute its judgment for that of Congress or of the President. It may, however, look into the question of whether such exercise has been made in grave abuse of discretion.

The point, in fine, is: while it may, in appropriate cases, look into the question of whether or not the PCGG acted in grave abuse of discretion, the Court is not empowered to review and go into the wisdom of the policy decision or choices of PCGG and other executive agencies of the government. This is the limited mandate of this Court. And as we have determined in our Resolution, the PCGG thoroughly studied and considered the effects of conversion and, based upon such study, concluded that it would best serve the purpose of maintaining and preserving the value of the shares of stock to convert the same. It was proved that the PCGG had exercised proper diligence in reviewing the pros and cons of the conversion. The efforts PCGG have taken with respect to the desired stock conversion argue against the notion of grave abuse of discretion. Anent the second issue that it is the government, as opposed to the current administration of President Gloria Macapagal-Arroyo, that is the winning party in the case below and has no incentive to convert, the Court finds that this argument has no merit. The current administration, or any administration for that matter, cannot be detached from the government. In the final analysis, the seat of executive powers is located in the sitting President who heads the government and/or the administration. Under the government established under the Constitution, it is the executive branch, either pursuant to the residual power of the President or by force of her enumerated powers under the laws, that has control over all matters pertaining to the disposition of government property or, in this case, sequestered assets under the administration of the PCGG. Surely, such control is neither legislative nor judicial. As the Court aptly held in Springer [8] v. Government of the Philippine Islands, resolving the issue as to which between the Governor-General, as head of the executive branch, and the Legislature may vote the shares of stock held by the government: It is clear that they are not legislative in character, and still more clear that they are not judicial. The fact that they do not fall within the authority of either of these two constitutes legal ground for concluding that they do fall within that of the remaining one among which the powers of the government are divided. The executive branch, through the PCGG, has given its assent to the conversion and such decision may be deemed to be the decision of the government. The notion suggested by oppositors-intervenors that the current administration, thru the PCGG, is without power to decide and act on the conversion on the theory that the head of the current administration is not government, cannot be sustained for lack of legal basis.

Likewise, before the Court is the Motion to Admit Motion for Reconsideration with Motion for [9] Reconsideration [Re: Conversion of SMC Shares]dated October 16, 2009 filed by movants-intervenors Wigberto E. Taada; Oscar F. Santos; Surigao del Sur Federation of Agricultural Cooperatives (SUFAC) and Moro Farmers Association of Zamboanga del Sur (MOFAZS); and Pambansang Kilusan ng mga Samahan ng Magsasaka (PAKISAMA). In filing their motion, movants-intervenors explain that: Messrs. Taada and Santos earlier joined an opposition filed by a group led by former Senate President Jovito R. Salonga, by way of solidarity and without desire or intent of trifling with judicial processes as, in fact, the instant Motion for Reconsideration is filed by herein movantsintervenors, through counsel, Atty. Taada, and also by way of supplement and support to the Opposition earlier filed by Salonga, et al., and the Opposition originally intended to be filed by [10] herein Movants-intervenors. (Emphasis supplied.)

Movants-intervenors argue further that the Court allowed them to intervene in a Resolution in G.R. No. 180702, which also arose from Sandiganbayan Civil Case No. 0033-F and, thus, should similarly be allowed to [11] intervene in the instant case. This motion of Taada, et al. must fail. As it were, Atty. Taada and Oscar Santos admit having joined oppositors-intervenors Salonga, et al. in the latters October 7, 2009 motion for reconsideration. Accordingly, they should have voiced out all their arguments in the Salonga motion for reconsideration following the Omnibus Motion Rule. The filing of yet another motion for reconsideration by way of supplement to the Salonga motion for reconsideration is a clear deviation from the Omnibus Motion Rule and cannot be countenanced. Even the joinder of SUFAC, MOFAZS, and PAKISAMA with co-intervenors Taada and Santos will not cure [12] the flawed motion. In Heirs of Geronimo Restrivera v. De Guzman, the Court explained why: Indeed, the right of intervention should be accorded to any one having title to property which is the subject of litigation, provided that his right will be substantially affected by the direct legal operation and effect of the decision, and provided also that it is reasonably necessary for him to safeguard an interest of his own which no other party on record is interested in protecting. (Emphasis supplied.)

SUFAC, MOFAZS, and PAKISAMA all failed to demonstrate that none of the existing parties, that are similarly situated as they, would not defend their common interest. In the instant case, COCOFED, the federation of farmers associations recognized by the Philippine Coconut Authority, has actively participated in the instant case, vigorously defending their rights and those of all the coconut farmers who are supposedly stockholders of SMC. The Court can extend to the instant motion of Taada, et al. the benefit of the liberal application of procedural rules and entertain the motion and resolve the issues therein. Nonetheless, an examination of the issues raised in the Taada motion for reconsideration would show that the same have been more than adequately addressed in our Resolution of September 19, 2009. Movants-intervenors contend that the challenged resolution violates the Courts holding in San Miguel [13] Corporation v. Sandiganbayan, as the conversion of the sequestered common shares into treasury shares would destroy the character of the shares of stock. The invocation of San Miguel Corporation is quite misplaced, it being inapplicable since it is not on all fours factually with the instant case. San Miguel Corporation involved the sale by the 14 CIIF Companies, through the United Coconut Planters Bank (UCPB), of 33,133,266 SMC shares, to the SMC. Before the perfection of the sale, however, the said shares were sequestered. Thus, the SMC group suspended payment of the purchase price of the shares, while the UCPB group rescinded the sale. Later, the SMC and UCPB groups entered into a Compromise Agreement and Amicable Settlement, whereby they undertook to continue with the sale of the subject shares of stock. The parties, over the opposition of both the Republic and the COCOFED, then moved for the approval of this agreement by the Sandiganbayan where the case was then pending. Later, UCPB and the SMC groups implemented their agreement

extra-judicially, withdrawing, at the same time, their petition for the approval of their aforementioned compromise agreement. Thereafter, the Sandiganbayan issued an Order dated August 5, 1991, directing the SMC to deliver to the graft court the sequestered SMC shares that it bought from UCPB. This was followed by another Order dated March 18, 1992, for the delivery to the court of dividends pertaining to the subject SMC shares. It was these two delivery Orders that were submitted for the consideration of the Court. An examination of the facts of San Miguel Corporation would show the factual dissimilarities of such case to the instant controversy. First, in San Miguel Corporation, the Court did not even pass upon the validity of the Compromise Agreement, while, in the instant case, the Court approved the conversion. Second, in the instant case, court approval was sought before the execution of the conversion, while in San Miguel Corporation, no court approval was sought for the Compromise Agreement. And third, in San Miguel Corporation, both the Republic and COCOFED opposed the Compromise Agreement, while, in the instant case, they both agreed to the conversion. Clearly, San Miguel Corporation finds no application to the instant case. Moreover, our ruling in San Miguel Corporation did not per se forbid the conversion of sequestered common shares into preferred/treasury shares. As we held thereat, the changes that are unacceptable are those of any permanent character that will alter their being sequestered shares and, therefore, in custodia legis, that is to say, under the control and disposition of this Court. Here , the SMC Series 1 Preferred Shares will also be sequestered in exchange for the common shares originally sequestered. Thus, the approval of the conversion of the subject SMC shares in the instant case does not run counter, as movants insist otherwise, to the ruling in San Miguel Corporation. Movants-intervenors also assail the conversion of the SMC shares from common to preferred on another angle, thus:

Simply, there is no right to vote: There is no greater alteration of the very nature of a common share. In a very real sense, therefore, a common share with all its rights, is reduced to a mere promissory note; worse, an unsecured and conditional promissory note, the returns on which is [14] dependent on available retained earnings and the over-all viability of SMC.

The assault is without merit. Again, by their very nature, shares of common stock, while giving the stockholder the right to vote, do not guarantee that the vote of the stockholder will prevail. That is non sequitur. This we explained in the Resolution subject of reconsideration: The mere presence of four (4) PCGG nominated directors in the SMC Board does not mean it can prevent board actions that are viewed to fritter away the company assets. Even under the status quo, PCGG has no controlling sway in the SMC Board, let alone a veto power at 24% of the stockholdings. In relinquishing the voting rights, the government, through the PCGG, is not in reality ceding control. Moreover, PCGG has ample powers to address alleged strategies to thwart recovery of illgotten wealth. Thus, the loss of voting rights has no significant effect on PCGGs function to [15] recover ill-gotten wealth or prevent dissipation of sequestered assets.

Movants-intervenors likewise challenge the legality of the conversion in light of Commission on Audit (COA) Circular No. 89-296, which provides that the divestment or disposal of government property shall be undertaken primarily through public auction. The postulation has no merit, for there is, in the first place, no divestment or disposal of the SMC shares. The CIIF companies shall remain the registered owners of the SMC Series 1 Preferred Shares after conversion, although the shares are still subject of sequestration. To state the obvious, these SMC shares are not yet government assets as ownership thereof are still to be peremptorily determined. Hence, COA Circular No. 89-296, which covers only the disposition of government property, cannot plausibly be made to govern the conversion of the SMC shares in question, assuming for the nonce that the challenged conversion is equivalent to disposition. As explained in the September 17, 2009 Resolution, the sequestered assets are akin to property subject of preliminary attachment or receivership. As stated in the assailed resolution, the Court is authorized to allow the conversion of the subject shares under Rule 57, Sec. 11, in relation to Rule 59, Sec. 6 of the Rules of Court. And as may be recalled, the Court, [16] in Palm Avenue Realty Development Corporation v. PCGG, allowed the sale of sequestered properties without an

auction sale given that, as here, the sequestered assets would not have fetched the correct market price. In the instant case, the same is also true. It is highly doubtful that anyone other than SMC would purchase the sequestered shares at market value. Finally, Taada, et al. posit the view that the conversion of shares needs the acquiescence of the 14 CIIF companies. The contention is untenable. It should be remembered that the SMC shares allegedly owned by the CIIF companies are sequestered assets under the control and supervision of the PCGG pursuant to Executive Order No. 1, Series of 1986. Be that as it may, it is the duty of the PCGG to preserve the sequestered assets and prevent their dissipation. In the exercise of its powers, the PCGG need not seek or obtain the consent or even the acquiescence of the sequestered assets owner with respect to any of its acts intended to preserve such assets. Otherwise, it would be well-nigh impossible for PCGG to perform its duties and exercise its powers under existing laws, for the owner of the sequestered assets will more often than not oppose or resist PCGGs actions if their consent is a condition prece dent. The act of PCGG of proposing the conversion of the sequestered SMC shares to Series 1 Preferred Shares was clearly an exercise of its mandate under existing laws, where the consent of the CIIF Companies is rendered unnecessary. Additionally, the above contention has been rendered moot with the filing on October 26, 2009 of the Manifestation dated October 23, 2009. Attached to such Manifestation is the Secretarys Certificate of the 14 CIIF [17] companies approving the conversion of the SMC Common Shares into Series 1 Preferred Shares. As a final consideration, the Court also takes note of the Motion for Leave to Intervene and to File and Admit Attached Motion for Partial Reconsideration dated October 5, 2009 and the Motion for Partial Reconsideration dated October 6, 2009 filed by movant-intervenor UCPB. UCPB claims to have direct interest in the SMC shares subject of the instant case, being the statutory administrator, pursuant to Presidential Decree No. (PD) 1468, of the Coconut Industry Investment Fund and as an investor in the CIIF companies. UCPB argues that, as the statutory administrator of the CIIF, the proceeds of the net dividend earnings of, and/or redemption proceeds from, the Series 1 Preferred Shares of SMC should be deposited in escrow with it rather than, as directed by the Court in its September 17, 2009 Resolution, with the Development Bank of the Philippines (DBP) or the Land Bank of the Philippines (LBP). Concededly, UCPB is the administrator of the CIIF, which invested in the subject Series 1 Preferred Shares of SMC. UCPBs legal authority as such administrator does not, however, include its being made the exclusive depository bank of the proceeds of dividends, interest, or income from the investments solely with UCPB. To be sure, the relevant decrees, PD Nos. 775, 961, and 1468, did not constitute UCPB the bank acquired for the coconut farmers under PD 755to be the sole depositary of the proceeds of the returns of the investments authorized under Sec. 9, Art. III of PD 1468. Besides, since the subject sequestered SMC shares are under custodia legis, the Court has certain control over them and their fruits. Nonetheless, the PCGG, having administrative control over the subject sequestered shares pending resolution of the actual ownership thereof, possesses discretion, taking into account the greater interest of the government and the farmers, to decide on where to deposit on escrow the net dividend earnings of, and/or redemption proceeds from, the Series 1 Preferred Shares of SMC. The depository bank may be the DBP/LBP or the UCPB. WHEREFORE, the Court resolves to DENY for lack of merit the: (1) Motion for Reconsideration dated October 7, 2009 filed by oppositors-intervenors Jovito R. Salonga, Wigberto E. Taada, Oscar F. Santos, Ana Theresa Hontiveros, and Teofisto L. Guingona III; and (2) Motion to Admit Motion for Reconsideration with Motion for Reconsideration [Re: Conversion of SMC Shares] dated October 16, 2009 filed by movants-intervenors Wigberto E. Taada, Oscar F. Santos, SUFAC, MOFAZS, represented by Romeo C. Royandoyan, and PAKISAMA, represented by Vicente Fabe. The Court PARTIALLY GRANTS the Motion for Leave to Intervene and to File and Admit Attached Motion for Partial Reconsideration dated October 5, 2009, and the Motion for Partial Reconsideration dated October 6, 2009 filed by movant-intervenor UCPB. The Court AMENDS its Resolution dated September 17, 2009 to give to the PCGG the discretion in depositing on escrow the net dividend earnings on, and/or redemption proceeds from, the Series 1 Preferred Shares

of SMC, either with the Development Bank of the Philippines/Land Bank of the Philippines or with the United Coconut Planters Bank, having in mind the greater interest of the government and the coconut farmers. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 189466 February 11, 2010 DARYL GRACE J. ABAYON, Petitioner, vs. THE HONORABLE HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL, PERFECTO C. LUCABAN, JR., RONYL S. DE LA CRUZ and AGUSTIN C. DOROGA, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 189506 CONGRESSMAN JOVITO S. PALPARAN, JR., Petitioner, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL (HRET), DR. REYNALDO LESACA, JR., CRISTINA PALABAY, RENATO M. REYES, JR., ERLINDA CADAPAN, ANTONIO FLORES and JOSELITO USTAREZ,Respondents. DECISION ABAD, J.: These two cases are about the authority of the House of Representatives Electoral Tribunal (HRET) to pass upon the eligibilities of the nominees of the party-list groups that won seats in the lower house of Congress. The Facts and the Case In G.R. 189466, petitioner Daryl Grace J. Abayon is the first nominee of the Aangat Tayo party-list organization that won a seat in the House of Representatives during the 2007 elections. Respondents Perfecto C. Lucaban, Jr., Ronyl S. Dela Cruz, and Agustin C. Doroga, all registered voters, filed a petition for quo warranto with respondent HRET against Aangat Tayo and its nominee, petitioner Abayon, in HRET Case 07-041. They claimed that Aangat Tayo was not eligible for a party-list seat in the House of Representatives, since it did not represent the marginalized and underrepresented sectors. Respondent Lucaban and the others with him further pointed out that petitioner Abayon herself was not qualified to sit in the House as a party-list nominee since she did not belong to the marginalized and underrepresented sectors, she being the wife of an incumbent congressional district representative. She moreover lost her bid as party-list representative of the party-list organization called An Waray in the immediately preceding elections of May 10, 2004. Petitioner Abayon countered that the Commission on Elections (COMELEC) had already confirmed the status of Aangat Tayo as a national multi-sectoral party-list organization representing the workers, women, youth, urban poor, and elderly and that she belonged to the women sector. Abayon also claimed that although she was the second nominee of An Waray party-list organization during the 2004 elections, she could not be regarded as having lost a bid for an elective office. Finally, petitioner Abayon pointed out that respondent HRET had no jurisdiction over the petition for quo warranto since respondent Lucaban and the others with him collaterally attacked the registration of Aangat Tayo as a party-list organization, a matter that fell within the jurisdiction of the COMELEC. It was Aangat Tayo that was taking a seat in the House of Representatives, and not Abayon who was just its nominee. All questions involving her eligibility as first nominee, said Abayon, were internal concerns of Aangat Tayo. On July 16, 2009 respondent HRET issued an order, dismissing the petition as against Aangat Tayo but upholding its 1 jurisdiction over the qualifications of petitioner Abayon. The latter moved for reconsideration but the HRET denied 2 the same on September 17, 2009, prompting Abayon to file the present petition for special civil action of certiorari. In G.R. 189506, petitioner Jovito S. Palparan, Jr. is the first nominee of the Bantay party-list group that won a seat in the 2007 elections for the members of the House of Representatives. Respondents Reynaldo Lesaca, Jr., Cristina Palabay, Renato M. Reyes, Jr., Erlinda Cadapan, Antonio Flores, and Joselito Ustarez are members of some other party-list groups. Shortly after the elections, respondent Lesaca and the others with him filed with respondent HRET a petition forquo warranto against Bantay and its nominee, petitioner Palparan, in HRET Case 07-040. Lesaca and the others alleged that Palparan was ineligible to sit in the House of Representatives as party-list nominee because he did not belong to the marginalized and underrepresented sectors that Bantay represented, namely, the victims of communist rebels, Civilian Armed Forces Geographical Units (CAFGUs), former rebels, and security guards. Lesaca and the others said that Palparan committed gross human rights violations against marginalized and underrepresented sectors and organizations. Petitioner Palparan countered that the HRET had no jurisdiction over his person since it was actually the party-list Bantay, not he, that was elected to and assumed membership in the House of Representatives. Palparan claimed

that he was just Bantays nominee. Consequently, any question involving his eligibility as first nominee was an internal concern of Bantay. Such question must be brought, he said, before that party-list group, not before the HRET. On July 23, 2009 respondent HRET issued an order dismissing the petition against Bantay for the reason that the issue of the ineligibility or qualification of the party-list group fell within the jurisdiction of the COMELEC pursuant to the Party-List System Act. HRET, however, defended its jurisdiction over the question of petitioner Palparans 3 qualifications. Palparan moved for reconsideration but the HRET denied it by a resolution dated September 10, 4 2009, hence, the recourse to this Court through this petition for special civil action of certiorari and prohibition. Since the two cases raise a common issue, the Court has caused their consolidation. The Issue Presented The common issue presented in these two cases is: Whether or not respondent HRET has jurisdiction over the question of qualifications of petitioners Abayon and Palparan as nominees of Aangat Tayo and Bantay party-list organizations, respectively, who took the seats at the House of Representatives that such organizations won in the 2007 elections. The Courts Ruling Petitioners Abayon and Palparan have a common theory: Republic Act (R.A.) 7941, the Party-List System Act, vests in the COMELEC the authority to determine which parties or organizations have the qualifications to seek party-list seats in the House of Representatives during the elections. Indeed, the HRET dismissed the petitions for quo warranto filed with it insofar as they sought the disqualifications of Aangat Tayo and Bantay. Since petitioners Abayon and Palparan were not elected into office but were chosen by their respective organizations under their internal rules, the HRET has no jurisdiction to inquire into and adjudicate their qualifications as nominees. If at all, says petitioner Abayon, such authority belongs to the COMELEC which already upheld her qualification as nominee of Aangat Tayo for the women sector. For Palparan, Bantays personality is so inseparable and intertwined with his own person as its nominee so that the HRET cannot dismiss the quo warranto action against Bantay without dismissing the action against him. But, although it is the party-list organization that is voted for in the elections, it is not the organization that sits as and 5 becomes a member of the House of Representatives. Section 5, Article VI of the Constitution, identifies who the "members" of that House are: Sec. 5. (1). The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations. (Underscoring supplied) Clearly, the members of the House of Representatives are of two kinds: "members x x x who shall be elected from legislative districts" and "those who x x x shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations." This means that, from the Constitutions point of view, it is the party-list representatives who are "elected" into office, not their parties or organizations. These representatives are elected, however, through that peculiar party-list system that the Constitution authorized and that Congress by law established where the voters cast their votes for the organizations or parties to which such party-list representatives belong. Once elected, both the district representatives and the party-list representatives are treated in like manner. They have the same deliberative rights, salaries, and emoluments. They can participate in the making of laws that will directly benefit their legislative districts or sectors. They are also subject to the same term limitation of three years for a maximum of three consecutive terms. It may not be amiss to point out that the Party-List System Act itself recognizes party-list nominees as "members of the House of Representatives," thus: Sec. 2. Declaration of Policy. - The State shall promote proportional representation in the election of representatives to the House of Representatives through a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to the marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. Towards this end, the State shall develop and guarantee a full, free and open party system in order to attain the broadest possible representation of party, sectoral or group interests in the House of Representatives by enhancing their chances to compete for and win seats in the legislature, and shall provide the simplest scheme possible. (Underscoring supplied) 6 As this Court also held in Bantay Republic Act or BA-RA 7941 v. Commission on Elections, a party-list representative is in every sense "an elected member of the House of Representatives." Although the vote cast in a party-list election is a vote for a party, such vote, in the end, would be a vote for its nominees, who, in appropriate cases, would eventually sit in the House of Representatives. Both the Constitution and the Party-List System Act set the qualifications and grounds for disqualification of party-list nominees. Section 9 of R.A. 7941, echoing the Constitution, states:

Sec. 9. Qualification of Party-List Nominees. No person shall be nominated as party-list representative unless he is a natural-born citizen of the Philippines, a registered voter, a resident of the Philippines for a period of not less than one (1) year immediately preceding the day of the election, able to read and write, bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election, and is at least twenty-five (25) years of age on the day of the election.1avvphi1 In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty (30) years of age on the day of the election. Any youth sectoral representative who attains the age of thirty (30) during his term shall be allowed to continue until the expiration of his term. In the cases before the Court, those who challenged the qualifications of petitioners Abayon and Palparan claim that the two do not belong to the marginalized and underrepresented sectors that they ought to represent. The Party-List System Act provides that a nominee must be a "bona fide member of the party or organization which he seeks to 7 represent." It is for the HRET to interpret the meaning of this particular qualification of a nominee the need for him or her to be a bona fide member or a representative of his party-list organizationin the context of the facts that characterize petitioners Abayon and Palparans relation to Aangat Tayo and Bantay, respectively, and the marginalized and underrepresented interests that they presumably embody. Petitioners Abayon and Palparan of course point out that the authority to determine the qualifications of a party-list nominee belongs to the party or organization that nominated him. This is true, initially. The right to examine the fitness of aspiring nominees and, eventually, to choose five from among them after all belongs to the party or 8 organization that nominates them. But where an allegation is made that the party or organization had chosen and allowed a disqualified nominee to become its party-list representative in the lower House and enjoy the secured tenure that goes with the position, the resolution of the dispute is taken out of its hand. Parenthetically, although the Party-List System Act does not so state, the COMELEC seems to believe, when it resolved the challenge to petitioner Abayon, that it has the power to do so as an incident of its authority to approve the registration of party-list organizations. But the Court need not resolve this question since it is not raised here and has not been argued by the parties. 9 What is inevitable is that Section 17, Article VI of the Constitution provides that the HRET shall be the sole judge of all contests relating to, among other things, the qualifications of the members of the House of Representatives. Since, as pointed out above, party-list nominees are "elected members" of the House of Representatives no less than the district representatives are, the HRET has jurisdiction to hear and pass upon their qualifications. By analogy with the cases of district representatives, once the party or organization of the party-list nominee has been proclaimed and the nominee has taken his oath and assumed office as member of the House of Representatives, the COMELECs 10 jurisdiction over election contests relating to his qualifications ends and the HRETs own jurisdiction begins. The Court holds that respondent HRET did not gravely abuse its discretion when it dismissed the petitions for quo warranto against Aangat Tayo party-list and Bantay party-list but upheld its jurisdiction over the question of the qualifications of petitioners Abayon and Palparan. WHEREFORE, the Court DISMISSES the consolidated petitions and AFFIRMS the Order dated July 16, 2009 and Resolution 09-183 dated September 17, 2009 in HRET Case 07-041 of the House of Representatives Electoral Tribunal as well as its Order dated July 23, 2009 and Resolution 09-178 dated September 10, 2009 in HRET Case 07-040. SO ORDERED. JOSE L. ATIENZA, JR., MATIAS G.R. No. 188920 V. DEFENSOR, JR., RODOLFO G. VALENCIA, DANILO E. SUAREZ, SOLOMON R. CHUNGALAO, SALVACION ZALDIVAR-PEREZ, HARLIN CAST-ABAYON, MELVIN G. MACUSI and ELEAZAR P. QUINTO, Petitioners, Present: Puno, C.J., Carpio, Corona, Carpio Morales, Velasco, Jr., - versus Nachura, Leonardo-De Castro, Brion, Peralta, Bersamin, Del Castillo,

Abad, Villarama, Jr., Perez, and Mendoza, JJ. COMMISSION ON ELECTIONS, MANUEL A. ROXAS II, FRANKLIN M. DRILON and Promulgated: J.R. NEREUS O. ACOSTA, Respondents. February 16, 2010 x ---------------------------------------------------------------------------------------- x DECISION ABAD, J.:

This petition is an offshoot of two earlier cases already resolved by the Court involving a leadership dispute within a political party. In this case, the petitioners question their expulsion from that party and assail the validity of the election of new party leaders conducted by the respondents. Statement of the Facts and the Case For a better understanding of the controversy, a brief recall of the preceding events is in order. On July 5, 2005 respondent Franklin M. Drilon (Drilon), as erstwhile president of the Liberal Party (LP), announced his partys withdrawal of support for the administration of President Gloria Macapagal -Arroyo. But petitioner Jose L. Atienza, Jr. (Atienza), LP Chairman, and a number of party members denounced Drilons move, claiming that he made the announcement without consulting his party. On March 2, 2006 petitioner Atienza hosted a party conference to supposedly discuss local autonomy and party matters but, when convened, the assembly proceeded to declare all positions in the LPs ruling body vacant and [1] elected new officers, with Atienza as LP president. Respondent Drilon immediately filed a petition with the Commission on Elections (COMELEC) to nullify the elections. He claimed that it was illegal considering that the partys electing bodies, the National Executive Council (NECO) and the National Polit ical Council (NAPOLCO), were [2] not properly convened. Drilon also claimed that under the amended LP Constitution, party officers were elected to a fixed three-year term that was yet to end on November 30, 2007. On the other hand, petitioner Atienza claimed that the majority of the LPs NECO and NAPOLCO attended the March 2, 2006 assembly. The election of new officers on that occasion could be like ned to people power, wherein [3] the LP majority removed respondent Drilon as president by direct action. Atienza also said that the amendments to the original LP Constitution, or the Salonga Constitution, giving LP officers a fixed three-year term, had not been properly ratified. Consequently, the term of Drilon and the other officers already ended on July 24, 2006. On October 13, 2006, the COMELEC issued a resolution, partially granting respondent Drilons petition. It annulled the March 2, 2006 elections and ordered the holding of a new election under COMELEC supervision. It held that the election of petitioner Atienza and the others with him was invalid since the electing assembly did not convene in accordance with the Salonga Constitution. But, since the amendments to the Salonga Constitution had not been properly ratified, Drilons term may be deemed to have ended. Thus, he held the position of LP president in a holdover capacity until new officers were elected. Both sides of the dispute came to this Court to challenge the COMELEC rulings. On April 17, 2007 a divided [5] Court issued a resolution, granting respondent Drilons petition and denying that of petitioner Atienza. The Court held, through the majority, that the COMELEC had jurisdiction over the intra-party leadership dispute; that the Salonga Constitution had been validly amended; and that, as a consequence, respondent Drilons term as LP president was to end only on November 30, 2007. Subsequently, the LP held a NECO meeting to elect new party leaders before respondent Drilons term expired. Fifty-nine NECO members out of the 87 who were supposedly qualified to vote attended. Before the election, however, several persons associated with petitioner Atienza sought to clarify their membership status and raised issues regarding the composition of the NECO. Eventually, that meeting installed respondent Manuel A. Roxas II (Roxas) as the new LP president.
[4]

On January 11, 2008 petitioners Atienza, Matias V. Defensor, Jr., Rodolfo G. Valencia, Danilo E. Suarez, Solomon R. Chungalao, Salvacion Zaldivar-Perez, Harlin Cast-Abayon, Melvin G. Macusi, and Eleazar P. Quinto, [6] filed a petition for mandatory and prohibitory injunction before the COMELEC against respondents Roxas, Drilon and J.R. Nereus O. Acosta, the party secretary general. Atienza, et al. sought to enjoin Roxas from assuming the presidency of the LP, claiming that the NECO assembly which elected him was invalidly convened. They questioned the existence of a quorum and claimed that the NECO composition ought to have been based on a list appearing in the partys 60th Anniversary Souvenir Program. Both Atienza and Drilon adopted that list as common exhibit in the earlier cases and it showed that the NECO had 103 members. Petitioners Atienza, et al. also complained that Atienza, the incumbent party chairman, was not invited to the NECO meeting and that some members, like petitioner Defensor, were given the status of guests during the meeting. Atienzas allies allegedly raised these issues but respondent Drilon arbitrarily thumbed them do wn and railroaded the proceedings. He suspended the meeting and moved it to another room, where Roxas was elected without notice to Atienzas allies. On the other hand, respondents Roxas, et al. claimed that Roxas election as LP president faithfully complied th with the provisions of the amended LP Constitution. The partys 60 Anniversary Souvenir Program could not be used for determining the NECO members because supervening events changed the bodys number and composition. Some NECO members had died, voluntarily resigned, or had gone on leave after accepting positions in the government. Others had lost their re-election bid or did not run in the May 2007 elections, making them ineligible to serve as NECO members. LP members who got elected to public office also became part of the NECO. Certain persons of national stature also became NECO members upon respondent Drilons nomination, a privilege granted the LP president under the amended LP Constitution. In other words, the NECO membership was not fixed or static; it changed due to supervening circumstances. Respondents Roxas, et al. also claimed that the party deemed petitioners Atienza, Zaldivar-Perez, and CastAbayon resigned for holding the illegal election of LP officers on March 2, 2006. This was pursuant to a March 14, 2006 NAPOLCO resolution that NECO subsequently ratified. Meanwhile, certain NECO members, like petitioners Defensor, Valencia, and Suarez, forfeited their party membership when they ran under other political parties during the May 2007 elections. They were dropped from the roster of LP members. On June 18, 2009 the COMELEC issued the assailed resolution denying petitioners Atienza, et al.s petition. It noted that the May 2007 elections necessarily changed the composition of the NECO since the amended LP Constitution explicitly made incumbent senators, members of the House of Representatives, governors and mayors members of that body. That some lost or won these positions in the May 2007 elections affected the NECO membership. Petitioners failed to prove that the NECO which elected Roxas as LP president was not properly convened. As for the validity of petitioners Atienza, et al.s expulsion as LP members, the COMELEC observed that this was a membership issue that related to disciplinary action within the political party. The COMELEC treated it as an internal party matter that was beyond its jurisdiction to resolve. Without filing a motion for reconsideration of the COMELEC resolution, petitioners Atienza, et al. filed this petition for certiorari under Rule 65. The Issues Presented Respondents Roxas, et al. raise the following threshold issues: 1. Whether or not the LP, which was not impleaded in the case, is an indispensable party; and

2. Whether or not petitioners Atienza, et al., as ousted LP members, have the requisite legal standing to question Roxas election. Petitioners Atienza, et al., on the other hand, raise the following issues: 3. Whether or not the COMELEC gravely abused its discretion when it upheld the NECO membership that elected respondent Roxas as LP president; 4. Whether or not the COMELEC gravely abused its discretion when it resolved the issue concerning the validity of the NECO meeting without first resolving the issue concerning the expulsion of Atienza, et al. from the party; and

5. Whether or not respondents Roxas, et al. violated petitioners Atienza, et al.s constitutional right to due process by the latters expulsion from the party. The Courts Ruling One. Respondents Roxas, et al. assert that the Court should dismiss the petition for failure of petitioners Atienza, et al. to implead the LP as an indispensable party. Roxas, et al. point out that, since the petition seeks the issuance of a writ of mandatory injunction against the NECO, the controversy could not be adjudicated with finality [7] without making the LP a party to the case. But petitioners Atienza, et al.s causes of action in this case consist in respondents Roxas, et al.s disenfranchisement of Atienza, et al. from the election of party leaders and in the illegal election of Roxas as party president. Atienza, et al. were supposedly excluded from the elections by a series of despotic acts of Roxas, et al., who controlled the proceedings. Among these acts are Atienza, et al.s expulsion from the party, their exclusion from the NECO, and respondent Drilons railroading of election proceedings. Atienza, et al. attributed all these illegal and prejudicial acts to Roxas, et al. Since no wrong had been imputed to the LP nor had some affirmative relief been sought from it, the LP is not an indispensable party. Petitioners Atienza, et al.s prayer for the undoing of respondents Roxas, et al.s acts and the reconvening of the NECO are directed against Roxas, et al. Two. Respondents Roxas, et al. also claim that petitioners Atienza, et al. have no legal standing to question the election of Roxas as LP president because they are no longer LP members, having been validly expelled from the [8] party or having joined other political parties. As non-members, they have no stake in the outcome of the action. But, as the Court held in David v. Macapagal-Arroyo, legal standing in suits is governed by the real parties-in-interest rule under Section 2, Rule 3 of the Rules of Court. This states that every action must be prosecuted or defended in the name of the real party-in-interest. And real party-in-interest is one who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit. In other words, the plaintiffs standing is based on his own right to the relief sought. In raising petitioners Atienza, et al.s lack of standing as a threshold issue, respondents Roxas, et al. would have the Court hypothetically assume the truth of the allegations in the petition. Here, it is precisely petitioners Atienza, et al.s allegations that respondents Roxas, et al. deprived them of their rights as LP members by summarily excluding them from the LP roster and not allowing them to take part in the election of its officers and that not all who sat in the NECO were in the correct list of NECO members. If Atienza, et al.s allegations were correct, they would have been irregularly expelled from the party and the election of officers, void. Further, they would be entitled to recognition as members of good standing and to the holding of a new election of officers using the correct list of NECO members. To this extent, therefore, Atienza, et al. who want to take part in another election would stand to be benefited or prejudiced by the Cou rts decision in this case. Consequently, they have legal standing to pursue this petition. Three. In assailing respondent Roxas election as LP president, petitioners Atienza, et al. claim that the NECO members allowed to take part in that election should have been limited to those in the list of NECO members th appearing in the partys 60 Anniversary Souvenir Program. Atienza, et al. allege that respondent Drilon, as holdover LP president, adopted that list in the earlier cases before the COMELEC and it should thus bind respondents Roxas, et al. The Courts decision in the earlier cases, said Atienza, et al., anointed that list for the next party election. Thus, Roxas, et al. in effect defied the Courts ruling when they removed Atienza as party chairman and [10] changed the NECOs composition. But the list of NECO members appearing in the partys 60 Anniversary Souvenir Program was drawn before the May 2007 elections. After the 2007 elections, changes in the NECO membership had to be redrawn to comply with what the amended LP Constitution required. Respondent Drilon adopted the souvenir program as common exhibit in the earlier cases only to prove that the NECO, which supposedly elected Atienza as new LP president on March 2, 2006, had been improperly convened. It cannot be regarded as an immutable list, given the nature and character of the NECO membership. Nothing in the Courts resolution in the earlier cases implies that the NECO membership should be pegged th to the partys 60 Anniversary Souvenir Program. There would have been no basis for such a position. The amended [11] LP Constitution did not intend the NECO membership to be permanent. Its Section 27 provides that the NECO
th [9]

shall include all incumbent senators, members of the House of Representatives, governors, and mayors who were LP members in good standing for at least six months. It follows from this that with the national and local elections taking place in May 2007, the number and composition of the NECO would have to yield to changes brought about by the elections. Former NECO members who lost the offices that entitled them to membership had to be dropped. Newly elected ones who gained the privilege because of their offices had to come in. Furthermore, former NECO members who passed away, resigned from the party, or went on leave could not be expected to remain part of the NECO that convened and held elections on November 26, 2007. In addition, Section 27 of the amended LP Constitution expressly authorized the party president to nominate persons of national stature to the NECO. Thus, petitioners Atienza, et al. cannot validly object to the admission of 12 NECO members nominated by respondent Drilon when he was LP president. Even if this move could be regarded as respondents Roxas, et al.s way of ensuring their election as party officers, there was certainly nothing irregular about the act under the amended LP Constitution. The NECO was validly convened in accordance with the amended LP Constitution. Respondents Roxas, et al. [12] explained in details how they arrived at the NECO composition for the purpose of electing the party leaders. The explanation is logical and consistent with party rules. Consequently, the COMELEC did not gravely abuse its discretion when it upheld the composition of the NECO that elected Roxas as LP president. Petitioner Atienza claims that the Courts resolution in the earlier cases recognized his right as party chairman with a term, like respondent Drilon, that would last up to November 30, 2007 and that, therefore, his ouster from that position violated the Courts resolution. But the Courts resolution in the earlier cases did not preclude the [13] [14] party from disciplining Atienza under Sections 29 and 46 of the amended LP Constitution. The party could very well remove him or any officer for cause as it saw fit. Four. Petitioners Atienza, et al. lament that the COMELEC selectively exercised its jurisdiction when it ruled on the composition of the NECO but refused to delve into the legality of their expulsion from the party. The two issues, they said, weigh heavily on the leadership controversy involved in the case. The previous rulings of the [15] Court, they claim, categorically upheld the jurisdiction of the COMELEC over intra-party leadership disputes. But, as respondents Roxas, et al. point out, the key issue in this case is not the validity of the expulsion of petitioners Atienza, et al. from the party, but the legitimacy of the NECO assembly that elected respondent Roxas as LP president. Given the COMELECs finding as upheld by this Court that the membership of the NECO in question complied with the LP Constitution, the resolution of the issue of whether or not the party validly expelled petitioners cannot affect the election of officers that the NECO held. While petitioners Atienza, et al. claim that the majority of LP members belong to their faction, they did not specify who these members were and how their numbers could possibly affect the composition of the NECO and the outcome of its election of party leaders. Atienza, et al. has not bothered to assail the individual qualifications of the NECO members who voted for Roxas. Nor did Atienza, et al. present proof that the NECO had no quorum when it then assembled. In other words, the claims of Atienza, et al. were totally unsupported by evidence. Consequently, petitioners Atienza, et al. cannot claim that their expulsion from the party impacts on the party leadership issue or on the election of respondent Roxas as president so that it was indispensable for the COMELEC to adjudicate such claim. Under the circumstances, the validity or invalidity of Atienza, et al.s expulsion was purely a membership issue that had to be settled within the party. It is an internal party matter over which the COMELEC has no jurisdiction. What is more, some of petitioner Atienzas allies raised objections before the NECO assembly regarding the status of members from their faction. Still, the NECO proceeded with the election, implying that its membership, whose composition has been upheld, voted out those objections. The COMELECs jurisdiction over intra-party disputes is limited. It does not have blanket authority to resolve any and all controversies involving political parties. Political parties are generally free to conduct their activities without interference from the state. The COMELEC may intervene in disputes internal to a party only when necessary to the discharge of its constitutional functions. The COMELECs jurisdiction over intra-party leadership disputes has already been settled by the Court. The [16] Court ruled in Kalaw v. Commission on Elections that the COMELECs powers and functions under Section 2, Article IX-C of the Constitution, include the ascertainment of the identity of the political party and its legitimate [17] officers responsible for its acts. The Court also declared in another case that the COMELECs power to register political parties necessarily involved the determination of the persons who must act on its behalf. Thus, the

COMELEC may resolve an intra-party leadership dispute, in a proper case brought before it, as an incident of its power to register political parties. The validity of respondent Roxas election as LP president is a leadership issue that the COMELEC had to settle. Under the amended LP Constitution, the LP president is the issuing authority for certificates of nomination of party candidates for all national elective positions. It is also the LP president who can authorize other LP officers to [18] issue certificates of nomination for candidates to local elective posts. In simple terms, it is the LP president who certifies the official standard bearer of the party. The law also grants a registered political party certain rights and privileges that will redound to the benefit of its official candidates. It imposes, too, legal obligations upon registered political parties that have to be carried out through their leaders. The resolution of the leadership issue is thus particularly significant in ensuring the peaceful [19] and orderly conduct of the elections. Five. Petitioners Atienza, et al. argue that their expulsion from the party is not a simple issue of party membership or discipline; it involves a violation of their constitutionally-protected right to due process of law. They claim that the NAPOLCO and the NECO should have first summoned them to a hearing before summarily expelling them from the party. According to Atienza, et al., proceedings on party discipline are the equivalent of administrative [20] proceedings and are, therefore, covered by the due process requirements laid down in Ang Tibay v. Court of [21] Industrial Relations. But the requirements of administrative due process do not apply to the internal affairs of political parties. The due process standards set in Ang Tibay cover only administrative bodies created by the state and through which certain governmental acts or functions are performed. An administrative agency or instrumentality contemplates an authority to which the state delegates governmental power for the performance of a state [22] function. The constitutional limitations that generally apply to the exercise of the states powers thus, apply too, to administrative bodies.

The constitutional limitations on the exercise of the states powers are found in Article III of the Constitution or the Bill of Rights. The Bill of Rights, which guarantees against the taking of life, property, or liberty without due process under Section 1 is generally a limitation on the states powers in relation to the rights of its citizens. The right to due process is meant to protect ordinary citizens against arbitrary government action, but not from acts committed by private individuals or entities. In the latter case, the specific statutes that provide reliefs from such private acts apply. The right to due process guards against unwarranted encroachment by the state into the fundamental rights of [23] its citizens and cannot be invoked in private controversies involving private parties. Although political parties play an important role in our democratic set-up as an intermediary between the state and its citizens, it is still a private organization, not a state instrument. The discipline of members by a political party does not involve the right to life, liberty or property within the meaning of the due process clause. An individual

has no vested right, as against the state, to be accepted or to prevent his removal by a political party. The only rights, if any, that party members may have, in relation to other party members, correspond to those that may have been freely agreed upon among themselves through their charter, which is a contract among the party members. Members whose rights under their charter may have been violated have recourse to courts of law for the enforcement of those rights, but not as a due process issue against the government or any of its agencies. But even when recourse to courts of law may be made, courts will ordinarily not interfere in membership and disciplinary matters within a political party. A political party is free to conduct its internal affairs, pursuant to its [24] constitutionally-protected right to free association. In Sinaca v. Mula, the Court said that judicial restraint in internal party matters serves the public interest by allowing the political processes to operate without undue interference. It is also consistent with the state policy of allowing a free and open party system to evolve, according to the free choice [25] of the people. To conclude, the COMELEC did not gravely abuse its discreti on when it upheld Roxas election as LP president but refused to rule on the validity of Atienza, et al.s expulsion from the party. While the question of party leadership has implications on the COMELECs performance of its functions under Section 2, Art icle IX-C of the Constitution, the same cannot be said of the issue pertaining to Atienza, et al.s expulsion from the LP. Such expulsion is for the moment an issue of party membership and discipline, in which the COMELEC cannot intervene, given the limited scope of its power over political parties. WHEREFORE, the Court DISMISSES the petition and UPHOLDS the Resolution of the Commission on Elections dated June 18, 2009 in COMELEC Case SPP 08-001. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 189698 February 22, 2010 ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR., Petitioners, vs. COMMISSION ON ELECTIONS, Respondent. RESOLUTION PUNO, C.J.: Upon a careful review of the case at bar, this Court resolves to grant the respondent Commission on Elections (COMELEC) motion for reconsideration, and the movants-intervenors motions for reconsideration-in-intervention, of 1 this Courts December 1, 2009 Decision (Decision). The assailed Decision granted the Petition for Certiorari and Prohibition filed by Eleazar P. Quinto and Gerino A. Tolentino, Jr. and declared as unconstitutional the second proviso in the third paragraph of Section 13 of Republic Act 2 3 4 No. 9369, Section 66 of the Omnibus Election Code and Section 4(a) of COMELEC Resolution No. 8678, mainly on the ground that they violate the equal protection clause of the Constitution and suffer from overbreadth. The assailed Decision thus paved the way for public appointive officials to continue discharging the powers, prerogatives and functions of their office notwithstanding their entry into the political arena. In support of their respective motions for reconsideration, respondent COMELEC and movants-intervenors submit the following arguments: (1) The assailed Decision is contrary to, and/or violative of, the constitutional proscription against the participation of public appointive officials and members of the military in partisan political activity; (2) The assailed provisions do not violate the equal protection clause when they accord differential treatment to elective and appointive officials, because such differential treatment rests on material and substantial distinctions and is germane to the purposes of the law; (3) The assailed provisions do not suffer from the infirmity of overbreadth; and (4) There is a compelling need to reverse the assailed Decision, as public safety and interest demand such reversal. We find the foregoing arguments meritorious. I. Procedural Issues First, we shall resolve the procedural issues on the timeliness of the COMELECs motion for reconsideration which was filed on December 15, 2009, as well as the propriety of the motions for reconsideration-in-intervention which were filed after the Court had rendered its December 1, 2009 Decision. i. Timeliness of COMELECs Motion for Reconsideration 5 Pursuant to Section 2, Rule 56-A of the 1997 Rules of Court, in relation to Section 1, Rule 52 of the same 6 rules, COMELEC had a period of fifteen days from receipt of notice of the assailed Decision within which to move for

its reconsideration. COMELEC received notice of the assailed Decision on December 2, 2009, hence, had until December 17, 2009 to file a Motion for Reconsideration. The Motion for Reconsideration of COMELEC was timely filed. It was filed on December 14, 2009. The corresponding Affidavit of Service (in substitution of the one originally submitted on December 14, 2009) was subsequently filed on December 17, 2009 still within the reglementary period. ii. Propriety of the Motions for Reconsideration-in-Intervention Section 1, Rule 19 of the Rules of Court provides: A person who has legal interest in the matter in litigation or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenors rights may be fully protected in a separate proceeding. Pursuant to the foregoing rule, this Court has held that a motion for intervention shall be entertained when the following requisites are satisfied: (1) the would-be intervenor shows that he has a substantial right or interest in the 7 case; and (2) such right or interest cannot be adequately pursued and protected in another proceeding. Upon the other hand, Section 2, Rule 19 of the Rules of Court provides the time within which a motion for intervention may be filed, viz.: SECTION 2. Time to intervene. The motion for intervention may be filed at any time before rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties. (italics supplied) This rule, however, is not inflexible. Interventions have been allowed even beyond the period prescribed in the Rule, when demanded by the higher interest of justice. Interventions have also been granted to afford indispensable parties, who have not been impleaded, the right to be heard even after a decision has been rendered by the trial 8 court, when the petition for review of the judgment has already been submitted for decision before the Supreme 9 10 11 Court, and even where the assailed order has already become final and executory. In Lim v. Pacquing, the motion for intervention filed by the Republic of the Philippines was allowed by this Court to avoid grave injustice and injury and to settle once and for all the substantive issues raised by the parties. 12 In fine, the allowance or disallowance of a motion for intervention rests on the sound discretion of the court after 13 consideration of the appropriate circumstances. We stress again that Rule 19 of the Rules of Court is a rule of 14 procedure whose object is to make the powers of the court fully and completely available for justice. Its purpose is 15 not to hinder or delay, but to facilitate and promote the administration of justice. We rule that, with the exception of the IBP Cebu City Chapter, all the movants-intervenors may properly intervene in the case at bar. First, the movants-intervenors have each sufficiently established a substantial right or interest in the case. As a Senator of the Republic, Senator Manuel A. Roxas has a right to challenge the December 1, 2009 Decision, which nullifies a long established law; as a voter, he has a right to intervene in a matter that involves the electoral process; and as a public officer, he has a personal interest in maintaining the trust and confidence of the public in its system of government. On the other hand, former Senator Franklin M. Drilon and Tom V. Apacible are candidates in the May 2010 elections running against appointive officials who, in view of the December 1, 2009 Decision, have not yet resigned from their posts and are not likely to resign from their posts. They stand to be directly injured by the assailed Decision, unless it is reversed. Moreover, the rights or interests of said movants-intervenors cannot be adequately pursued and protected in another proceeding. Clearly, their rights will be foreclosed if this Courts Decision attains finality and forms part of the laws of the land. With regard to the IBP Cebu City Chapter, it anchors its standing on the assertion that "this case involves the constitutionality of elections laws for this coming 2010 National Elections," and that "there is a need for it to be allowed to intervene xxx so that the voice of its members in the legal profession would also be heard before this 16 Highest Tribunal as it resolves issues of transcendental importance." Prescinding from our rule and ruling case law, we find that the IBP-Cebu City Chapter has failed to present a specific and substantial interest sufficient to clothe it with standing to intervene in the case at bar. Its invoked interest is, in character, too indistinguishable to justify its intervention. We now turn to the substantive issues. II. Substantive Issues The assailed Decision struck down Section 4(a) of Resolution 8678, the second proviso in the third paragraph of Section 13 of Republic Act (RA) 9369, and Section 66 of the Omnibus Election Code, on the following grounds: (1) They violate the equal protection clause of the Constitution because of the differential treatment of persons holding appointive offices and those holding elective positions; (2) They are overbroad insofar as they prohibit the candidacy of all civil servants holding appointive posts: (a) without distinction as to whether or not they occupy high/influential positions in the government, and (b)

they limit these civil servants activity regardless of whether they be partisan or nonpartisan in c haracter, or whether they be in the national, municipal or barangay level; and (3) Congress has not shown a compelling state interest to restrict the fundamental right of these public appointive officials. We grant the motions for reconsideration. We now rule that Section 4(a) of Resolution 8678, Section 66 of the Omnibus Election Code, and the second proviso in the third paragraph of Section 13 of RA 9369 are not unconstitutional, and accordingly reverse our December 1, 2009 Decision. III. Section 4(a) of COMELEC Resolution 8678 Compliant with Law Section 4(a) of COMELEC Resolution 8678 is a faithful reflection of the present state of the law and jurisprudence on the matter, viz.: Incumbent Appointive Official. - Under Section 13 of RA 9369, which reiterates Section 66 of the Omnibus Election Code, any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. 17 Incumbent Elected Official. Upon the other hand, pursuant to Section 14 of RA 9006 or the Fair Election Act, which 18 repealed Section 67 of the Omnibus Election Code and rendered ineffective Section 11 of R.A. 8436 insofar as it considered an elected official as resigned only upon the start of the campaign period corresponding to the positions 19 for which they are running, an elected official is not deemed to have resigned from his office upon the filing of his certificate of candidacy for the same or any other elected office or position. In fine, an elected official may run for another position without forfeiting his seat. These laws and regulations implement Section 2(4), Article IX-B of the 1987 Constitution, which prohibits civil service officers and employees from engaging in any electioneering or partisan political campaign. The intention to impose a strict limitation on the participation of civil service officers and employees in partisan political campaigns is unmistakable. The exchange between Commissioner Quesada and Commissioner Foz during the deliberations of the Constitutional Commission is instructive: MS. QUESADA. xxxx Secondly, I would like to address the issue here as provided in Section 1 (4), line 12, and I quote: "No officer or employee in the civil service shall engage, directly or indirectly, in any partisan political activity." This is almost the same provision as in the 1973 Constitution. However, we in the government service have actually experienced how this provision has been violated by the direct or indirect partisan political activities of many government officials. So, is the Committee willing to include certain clauses that would make this provision more strict, and which would deter its violation? MR. FOZ. Madam President, the existing Civil Service Law and the implementing rules on the matter are more than exhaustive enough to really prevent officers and employees in the public service from engaging in any form of partisan political activity. But the problem really lies in implementation because, if the head of a ministry, and even the superior officers of offices and agencies of government will themselves violate the constitutional injunction against partisan political activity, then no string of words that we may add to what is now here in this draft will really 20 implement the constitutional intent against partisan political activity. x x x (italics supplied) To emphasize its importance, this constitutional ban on civil service officers and employees is presently reflected and implemented by a number of statutes. Section 46(b)(26), Chapter 7 and Section 55, Chapter 8 both of Subtitle A, Title I, Book V of the Administrative Code of 1987 respectively provide in relevant part: Section 44. Discipline: General Provisions: xxxx (b) The following shall be grounds for disciplinary action: xxxx (26) Engaging directly or indirectly in partisan political activities by one holding a non-political office. xxxx Section 55. Political Activity. No officer or employee in the Civil Service including members of the Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any election except to vote nor shall he use his official authority or influence to coerce the political activity of any other person or body. Nothing herein provided shall be understood to prevent any officer or employee from expressing his views on current political problems or issues, or from mentioning the names of his candidates for public office whom he supports: Provided, That public officers and employees holding political offices may take part in political and electoral activities but it shall be unlawful for them to solicit contributions from their subordinates or subject them to any of the acts involving subordinates prohibited in the Election Code. Section 261(i) of Batas Pambansa Blg. 881 (the Omnibus Election Code) further makes intervention by civil service officers and employees in partisan political activities an election offense, viz.: SECTION 261. Prohibited Acts. The following shall be guilty of an election offense: xxxx

(i) Intervention of public officers and employees. Any officer or employee in the civil service, except those holding political offices; any officer, employee, or member of the Armed Forces of the Philippines, or any police force, special forces, home defense forces, barangay self-defense units and all other para-military units that now exist or which may hereafter be organized who, directly or indirectly, intervenes in any election campaign or engages in any partisan political activity, except to vote or to preserve public order, if he is a peace officer. The intent of both Congress and the framers of our Constitution to limit the participation of civil service officers and employees in partisan political activities is too plain to be mistaken. But Section 2(4), Article IX-B of the 1987 Constitution and the implementing statutes apply only to civil servants holding apolitical offices. Stated differently, the constitutional ban does not cover elected officials, notwithstanding the fact that "[t]he civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, 21 including government-owned or controlled corporations with original charters." This is because elected public officials, by the very nature of their office, engage in partisan political activities almost all year round, even outside of 22 the campaign period. Political partisanship is the inevitable essence of a political office, elective positions 23 included. The prohibition notwithstanding, civil service officers and employees are allowed to vote, as well as express their views on political issues, or mention the names of certain candidates for public office whom they support. This is crystal clear from the deliberations of the Constitutional Commission, viz.: MS. AQUINO: Mr. Presiding Officer, my proposed amendment is on page 2, Section 1, subparagraph 4, lines 13 and 14. On line 13, between the words "any" and "partisan," add the phrase ELECTIONEERING AND OTHER; and on line 14, delete the word "activity" and in lieu thereof substitute the word CAMPAIGN. May I be allowed to explain my proposed amendment? THE PRESIDING OFFICER (Mr. Treas): Commissioner Aquino may proceed. MS. AQUINO: The draft as presented by the Committee deleted the phrase "except to vote" which was adopted in both the 1935 and 1973 Constitutions. The phrase "except to vote" was not intended as a guarantee to the right to vote but as a qualification of the general prohibition against taking part in elections. Voting is a partisan political activity. Unless it is explicitly provided for as an exception to this prohibition, it will amount to disenfranchisement. We know that suffrage, although plenary, is not an unconditional right. In other words, the Legislature can always pass a statute which can withhold from any class the right to vote in an election, if public interest so required. I would only like to reinstate the qualification by specifying the prohibited acts so that those who may want to vote but who are likewise prohibited from participating in partisan political campaigns or electioneering may vote. MR. FOZ: There is really no quarrel over this point, but please understand that there was no intention on the part of the Committee to disenfranchise any government official or employee. The elimination of the last clause of this provision was precisely intended to protect the members of the civil service in the sense that they are not being deprived of the freedom of expression in a political contest. The last phrase or clause might have given the impression that a government employee or worker has no right whatsoever in an election campaign except to vote, which is not the case. They are still free to express their views although the intention is not really to allow them to 24 take part actively in a political campaign. IV. Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code Do Not Violate the Equal Protection Clause We now hold that Section 4(a) of Resolution 8678, Section 66 of the Omnibus Election Code, and the second proviso in the third paragraph of Section 13 of RA 9369 are not violative of the equal protection clause of the Constitution. i. Farias, et al. v. Executive Secretary, et al. is Controlling In truth, this Court has already ruled squarely on whether these deemed-resigned provisions challenged in the case 25 at bar violate the equal protection clause of the Constitution in Farias, et al. v. Executive Secretary, et al. In Farias, the constitutionality of Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of the Omnibus Election Code, was assailed on the ground, among others, that it unduly discriminates against appointive officials. As Section 14 repealed Section 67 (i.e., the deemed-resigned provision in respect of elected officials) of the Omnibus Election Code, elected officials are no longer considered ipso facto resigned from their respective offices upon their filing of certificates of candidacy. In contrast, since Section 66 was not repealed, the limitation on appointive officials continues to be operative they are deemed resigned when they file their certificates of candidacy. The petitioners in Farias thus brought an equal protection challenge against Section 14, with the end in view of having the deemed-resigned provisions "apply equally" to both elected and appointive officials. We held, however, that the legal dichotomy created by the Legislature is a reasonable classification, as there are material and significant distinctions between the two classes of officials. Consequently, the contention that Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of the Omnibus Election Code, infringed on the equal protection clause of the Constitution, failed muster. We ruled: The petitioners' contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to elective officials gives undue benefit to such officials as against the appointive ones and violates the equal protection clause of the constitution, is tenuous.

The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from the other. The Court has explained the nature of the equal protection guarantee in this manner: The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not. Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority. Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity or take (sic) part in any election except to vote. Under the same provision, elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political and electoral activities. By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it proper to treat these two classes of officials differently with respect to the effect on their tenure in the office of the filing of the certificates of candidacy for any position other than those occupied by them. Again, it is not within the power of the Court to pass upon or look into the wisdom of this classification. Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis--vis appointive officials, is anchored upon material and significant distinctions and all the persons belonging under the same classification are 26 similarly treated, the equal protection clause of the Constitution is, thus, not infringed. The case at bar is a crass attempt to resurrect a dead issue. The miracle is that our assailed Decision gave it new life. We ought to be guided by the doctrine of stare decisis et non quieta movere. This doctrine, which is really "adherence to precedents," mandates that once a case has been decided one way, then another case involving 27 exactly the same point at issue should be decided in the same manner. This doctrine is one of policy grounded on the necessity for securing certainty and stability of judicial decisions. As the renowned jurist Benjamin Cardozo stated in his treatise The Nature of the Judicial Process: It will not do to decide the same question one way between one set of litigants and the opposite way between another. "If a group of cases involves the same point, the parties expect the same decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case was decided against me yesterday when I was a defendant, I shall look for the same judgment today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my rights." Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed 28 administration of justice in the courts. Our Farias ruling on the equal protection implications of the deemed-resigned provisions cannot be minimalized as mere obiter dictum. It is trite to state that an adjudication on any point within the issues presented by the case cannot 29 be considered as obiter dictum. This rule applies to all pertinent questions that are presented and resolved in the regular course of the consideration of the case and lead up to the final conclusion, and to any statement as to the 30 matter on which the decision is predicated. For that reason, a point expressly decided does not lose its value as a precedent because the disposition of the case is, or might have been, made on some other ground; or even though, by reason of other points in the case, the result reached might have been the same if the court had held, on the 31 32 particular point, otherwise than it did. As we held in Villanueva, Jr. v. Court of Appeals, et al.: A decision which the case could have turned on is not regarded as obiter dictum mer ely because, owing to the disposal of the contention, it was necessary to consider another question, nor can an additional reason in a decision, brought forward after the case has been disposed of on one ground, be regarded as dicta. So, also, where a case presents two (2) or more points, any one of which is sufficient to determine the ultimate issue, but the court actually decides all such points, the case as an authoritative precedent as to every point decided, and none of such points can be regarded as having the status of a dictum, and one point should not be denied authority merely because another point was more dwelt on and more fully argued and considered, nor does a decision on one proposition make 33 statements of the court regarding other propositions dicta. (italics supplied) ii. Classification Germane to the Purposes of the Law The Farias ruling on the equal protection challenge stands on solid ground even if reexamined. To start with, the equal protection clause does not require the universal application of the laws to all persons or things 34 without distinction. What it simply requires is equality among equals as determined according to a valid

classification. The test developed by jurisprudence here and yonder is that of reasonableness, which has four requisites: (1) The classification rests on substantial distinctions; (2) It is germane to the purposes of the law; (3) It is not limited to existing conditions only; and 37 (4) It applies equally to all members of the same class. Our assailed Decision readily acknowledged that these deemed-resigned provisions satisfy the first, third and fourth requisites of reasonableness. It, however, proffers the dubious conclusion that the differential treatment of appointive officials vis--vis elected officials is not germane to the purpose of the law, because "whether one holds an appointive office or an elective one, the evils sought to be prevented by the measure remain," viz.: For example, the Executive Secretary, or any Member of the Cabinet for that matter, could wield the same influence as the Vice-President who at the same time is appointed to a Cabinet post (in the recent past, elected VicePresidents were appointed to take charge of national housing, social welfare development, interior and local government, and foreign affairs). With the fact that they both head executive offices, there is no valid justification to treat them differently when both file their [Certificates of Candidacy] for the elections. Under the present state of our law, the Vice-President, in the example, running this time, let us say, for President, retains his position during the 38 entire election period and can still use the resources of his office to support his campaign. Sad to state, this conclusion conveniently ignores the long-standing rule that to remedy an injustice, the Legislature 39 need not address every manifestation of the evil at once; it may proceed "one step at a time." In addressing a societal concern, it must invariably draw lines and make choices, thereby creating some inequity as to those included 40 or excluded. Nevertheless, as long as "the bounds of reasonable choice" are not exceeded, the courts must defer to 41 the legislative judgment. We may not strike down a law merely because the legislative aim would have been more 42 fully achieved by expanding the class. Stated differently, the fact that a legislative classification, by itself, is 43 underinclusive will not render it unconstitutionally arbitrary or invidious. There is no constitutional requirement that 44 regulation must reach each and every class to which it might be applied; that the Legislature must be held rigidly to the choice of regulating all or none. Thus, any person who poses an equal protection challenge must convincingly show that the law creates a 45 classification that is "palpably arbitrary or capricious." He must refute all possible rational bases for the differing 46 treatment, whether or not the Legislature cited those bases as reasons for the enactment, such that the 47 constitutionality of the law must be sustained even if the reasonableness of the classification is "fairly debatable." In the case at bar, the petitioners failed and in fact did not even attempt to discharge this heavy burden. Our assailed Decision was likewise silent as a sphinx on this point even while we submitted the following thesis: ... [I]t is not sufficient grounds for invalidation that we may find that the statutes distinction is unfair, underinclusive, unwise, or not the best solution from a public-policy standpoint; rather, we must find that there is no reasonably 48 rational reason for the differing treatment. In the instant case, is there a rational justification for excluding elected officials from the operation of the deemed resigned provisions? I submit that there is. An election is the embodiment of the popular will, perhaps the purest expression of the sovereign power of the 49 50 people. It involves the choice or selection of candidates to public office by popular vote. Considering that elected officials are put in office by their constituents for a definite term, it may justifiably be said that they were excluded from the ambit of the deemed resigned provisions in utmost respect for the mandate of the sovereign will. In other words, complete deference is accorded to the will of the electorate that they be served by such officials until the end of the term for which they were elected. In contrast, there is no such expectation insofar as appointed officials are concerned. The dichotomized treatment of appointive and elective officials is therefore germane to the purposes of the law. For the law was made not merely to preserve the integrity, efficiency, and discipline of the public service; the Legislature, whose wisdom is outside the rubric of judicial scrutiny, also thought it wise to balance this with the competing, yet 51 equally compelling, interest of deferring to the sovereign will. (emphasis in the original) In fine, the assailed Decision would have us "equalize the playing field" by invalidating provisions of law that seek to restrain the evils from running riot. Under the pretext of equal protection, it would favor a situation in which the evils are unconfined and vagrant, existing at the behest of both appointive and elected officials, over another in which a significant portion thereof is contained. The absurdity of that position is self-evident, to say the least. The concern, voiced by our esteemed colleague, Mr. Justice Nachura, in his dissent, that elected officials (vis--vis appointive officials) have greater political clout over the electorate, is indeed a matter worth exploring but not by this Court. Suffice it to say that the remedy lies with the Legislature. It is the Legislature that is given the authority, under our constitutional system, to balance competing interests and thereafter make policy choices responsive to the exigencies of the times. It is certainly within the Legislatures power to make the deemed -resigned provisions applicable to elected officials, should it later decide that the evils sought to be prevented are of such frequency and magnitude as to tilt the balance in favor of expanding the class. This Court cannot and should not arrogate unto itself the power to ascertain and impose on the people the best state of affairs from a public policy standpoint. iii. Mancuso v. Taft Has Been Overruled

35

36

Finding no Philippine jurisprudence to prop up its equal protection ruling, our assailed Decision adverted to, and 52 extensively cited, Mancuso v. Taft. This was a decision of the First Circuit of the United States Court of Appeals promulgated in March 1973, which struck down as unconstitutional a similar statutory provision. Pathetically, our assailed Decision, relying on Mancuso, claimed: (1) The right to run for public office is "inextricably linked" with two fundamental freedoms freedom of expression and association; (2) Any legislative classification that significantly burdens this fundamental right must be subjected to strict equal protection review; and (3) While the state has a compelling interest in maintaining the honesty and impartiality of its public work force, the deemed-resigned provisions pursue their objective in a far too heavy-handed manner as to render them unconstitutional. It then concluded with the exhortation that since "the Americans, from whom we copied the provision in question, had already stricken down a similar measure for being unconstitutional[,] it is high-time that we, too, should follow suit." Our assailed Decisions reliance on Mancuso is completely misplaced. We cannot blink away the fact that the United States Supreme Court effectively overruled Mancuso three months after its promulgation by the United States Court of Appeals. In United States Civil Service Commission, et al. v. National Association of Letter Carriers AFL-CIO, et 53 54 al. and Broadrick, et al. v. State of Oklahoma, et al., the United States Supreme Court was faced with the issue of 55 56 whether statutory provisions prohibiting federal and state employees from taking an active part in political management or in political campaigns were unconstitutional as to warrant facial invalidation. Violation of these provisions results in dismissal from employment and possible criminal sanctions. The Court declared these provisions compliant with the equal protection clause. It held that (i) in regulating the speech of its employees, the state as employer has interests that differ significantly from those it possesses in regulating the speech of the citizenry in general; (ii) the courts must therefore balance the legitimate interest of employee free expression against the interests of the employer in promoting efficiency of public services; (iii) if the employees expression interferes with the maintenance of efficient and regularly functioning service s, the limitation on speech is not unconstitutional; and (iv) the Legislature is to be given some flexibility or latitude in ascertaining which 57 positions are to be covered by any statutory restrictions. Therefore, insofar as government employees are concerned, the correct standard of review is an interest-balancing approach, a means-end scrutiny that examines the 58 closeness of fit between the governmental interests and the prohibitions in question. Letter Carriers elucidated on these principles, as follows: Until now, the judgment of Congress, the Executive, and the country appears to have been that partisan political activities by federal employees must be limited if the Government is to operate effectively and fairly, elections are to play their proper part in representative government, and employees themselves are to be sufficiently free from improper influences. The restrictions so far imposed on federal employees are not aimed at particular parties, groups, or points of view, but apply equally to all partisan activities of the type described. They discriminate against no racial, ethnic, or religious minorities. Nor do they seek to control political opinions or beliefs, or to interfere with or influence anyone's vote at the polls. 59 But, as the Court held in Pickering v. Board of Education, the government has an interest in regulating the conduct and the speech of its employees that differ(s) significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the (employee), as a citizen, in commenting upon matters of public concern and the interest of the (government), as an employer, in promoting the efficiency of the public services it performs through its employees. Although Congress is free to strike a different balance than it has, if it so chooses, we think the balance it has so far struck is sustainable by the obviously important interests sought to be served by the limitations on partisan political activities now contained in the Hatch Act. It seems fundamental in the first place that employees in the Executive Branch of the Government, or those working for any of its agencies, should administer the law in accordance with the will of Congress, rather than in accordance with their own or the will of a political party. They are expected to enforce the law and execute the programs of the Government without bias or favoritism for or against any political party or group or the members thereof. A major thesis of the Hatch Act is that to serve this great end of Government-the impartial execution of the laws-it is essential that federal employees, for example, not take formal positions in political parties, not undertake to play substantial roles in partisan political campaigns, and not run for office on partisan political tickets. Forbidding activities like these will reduce the hazards to fair and effective government. There is another consideration in this judgment: it is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent. Another major concern of the restriction against partisan activities by federal employees was perhaps the immediate occasion for enactment of the Hatch Act in 1939. That was the conviction that the rapidly expanding Government work force should not be employed to build a powerful, invincible, and perhaps corrupt political machine. The experience of the 1936 and 1938 campaigns convinced Congress that these dangers were sufficiently real that substantial barriers should be raised against the party in power-or the party out of power, for that matter-using the

thousands or hundreds of thousands of federal employees, paid for at public expense, to man its political structure and political campaigns. A related concern, and this remains as important as any other, was to further serve the goal that employment and advancement in the Government service not depend on political performance, and at the same time to make sure that Government employees would be free from pressure and from express or tacit invitation to vote in a certain way or perform political chores in order to curry favor with their superiors rather than to act out their own beliefs. It may be urged that prohibitions against coercion are sufficient protection; but for many years the joint judgment of the Executive and Congress has been that to protect the rights of federal employees with respect to their jobs and their political acts and beliefs it is not enough merely to forbid one employee to attempt to influence or coerce another. For example, at the hearings in 1972 on proposed legislation for liberalizing the prohibition against political activity, the Chairman of the Civil Service Commission stated that the prohibitions against active participation in partisan poli tical management and partisan political campaigns constitute the most significant safeguards against coercion . . .. Perhaps Congress at some time will come to a different view of the realities of political life and Government service; but that is its current view of the matter, and we are not now in any position to dispute it. Nor, in our view, does the Constitution forbid it. 60 Neither the right to associate nor the right to participate in political activities is absolute in any event. x x x xxxx As we see it, our task is not to destroy the Act if we can, but to construe it, if consistent with the will of Congress, so as to comport with constitutional limitations. (italics supplied) Broadrick likewise definitively stated that the assailed statutory provision is constitutionally permissible, viz.: Appellants do not question Oklahoma's right to place even-handed restrictions on the partisan political conduct of state employees. Appellants freely concede that such restrictions serve valid and important state interests, particularly with respect to attracting greater numbers of qualified people by insuring their job security, free from the vicissitudes of the elective process, and by protecting them from political extortion. Rather, appellants maintain that however permissible, even commendable, the goals of s 818 may be, its language is unconstitutionally vague and its prohibitions too broad in their sweep, failing to distinguish between conduct that may be proscribed and conduct that must be permitted. For these and other reasons, appellants assert that the sixth and seventh paragraphs of s 818 are void in toto and cannot be enforced against them or anyone else. 61 We have held today that the Hatch Act is not impermissibly vague. We have little doubt that s 818 is similarly not so 62 vague that men of common intelligence must necessarily guess at its meaning. Whatever other problems there are with s 818, it is all but frivolous to suggest that the section fails to give adequate warning of what activities it proscribes or fails to set out explicit standards' for those who must apply it. In the plainest language, it prohibits any state classified employee from being an officer or member of a partisan political club or a candidate for any paid public office. It forbids solicitation of contributions for any political organization, candidacy or other political purpose and taking part in the management or affairs of any political party or in any political campaign. Words i nevitably contain germs of uncertainty and, as with the Hatch Act, there may be disputes over the meaning of such terms in s 818 as partisan, or take part in, or affairs of political parties. But what was said in Letter Carriers, is applicable here: there are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest.' x x x xxxx [Appellants] nevertheless maintain that the statute is overbroad and purports to reach protected, as well as unprotected conduct, and must therefore be struck down on its face and held to be incapable of any constitutional application. We do not believe that the overbreadth doctrine may appropriately be invoked in this manner here. xxxx The consequence of our departure from traditional rules of standing in the First Amendment area is that any enforcement of a statute thus placed at issue is totally forbidden until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression. Application of the overbreadth doctrine in this manner is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort. x x x x x x But the plain import of our cases is, at the very least, that facial over-breadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from pure speech toward conduct and that conduct -even if expressive-falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect-at best a prediction-cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep. It is our view that s 818 is not

substantially overbroad and that whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied. Unlike ordinary breach-of-the peace statutes or other broad regulatory acts, s 818 is directed, by its terms, at political expression which if engaged in by private persons would plainly be protected by the First and Fourteenth Amendments. But at the same time, s 818 is not a censorial statute, directed at particular groups or viewpoints. The statute, rather, seeks to regulate political activity in an even-handed and neutral manner. As indicted, such statutes have in the past been subject to a less exacting overbreadth scrutiny. Moreover, the fact remains that s 818 regulates a substantial spectrum of conduct that is as manifestly subject to state regulation as the public peace or criminal trespass. This much was established in United Public Workers v. Mitchell, and has been unhesitatingly reaffirmed today in Letter Carriers. Under the decision in Letter Carriers, there is no question that s 818 is valid at least insofar as it forbids classified employees from: soliciting contributions for partisan candidates, political parties, or other partisan political purposes; becoming members of national, state, or local committees of political parties, or officers or committee members in partisan political clubs, or candidates for any paid public office; taking part in the management or affairs of any political party's partisan political campaign; serving as delegates or alternates to caucuses or conventions of political parties; addressing or taking an active part in partisan political rallies or meetings; soliciting votes or assisting voters at the polls or helping in a partisan effort to get voters to the polls; participating in the distribution of partisan campaign literature; initiating or circulating partisan nominating petitions; or riding in caravans for any political party or partisan political candidate. x x x It may be that such restrictions are impermissible and that s 818 may be susceptible of some other improper applications. But, as presently construed, we do not believe that s 818 must be discarded in toto because some persons arguably protected conduct may or may not be caught or chilled by the statute. Section 818 is not substantially overbroad and it not, therefore, unconstitutional on its face. (italics supplied) It bears stressing that, in his Dissenting Opinion, Mr. Justice Nachura does not deny the principles enunciated in Letter Carriers and Broadrick. He would hold, nonetheless, that these cases cannot be interpreted to mean a reversal of Mancuso, since they "pertain to different types of laws and were decided based on a different set of facts," viz.: In Letter Carriers, the plaintiffs alleged that the Civil Service Commission was enforcing, or threatening to enforce, the Hatch Acts prohibition against "active participation in political management or political campaigns." The plaintiffs desired to campaign for candidates for public office, to encourage and get federal employees to run for state and local offices, to participate as delegates in party conventions, and to hold office in a political club. In Broadrick, the appellants sought the invalidation for being vague and overbroad a provision in the (sic) Oklahomas Merit System of Personnel Administration Act restricting the political activ ities of the States classified civil servants, in much the same manner as the Hatch Act proscribed partisan political activities of federal employees. Prior to the commencement of the action, the appellants actively participated in the 1970 reelection campaign of their superior, and were administratively charged for asking other Corporation Commission employees to do campaign work or to give referrals to persons who might help in the campaign, for soliciting money for the campaign, and for receiving and distributing campaign posters in bulk. Mancuso, on the other hand, involves, as aforesaid, an automatic resignation provision. Kenneth Mancuso, a full time police officer and classified civil service employee of the City of Cranston, filed as a candidate for nomination as representative to the Rhode Island General Assembly. The Mayor of Cranston then began the process of enforcing the resign-to-run provision of the City Home Rule Charter. Clearly, as the above-cited US cases pertain to different types of laws and were decided based on a different set of facts, Letter Carriers and Broadrick cannot be interpreted to mean a reversal of Mancuso. x x x (italics in the original) We hold, however, that his position is belied by a plain reading of these cases. Contrary to his claim, Letter Carriers, Broadrick and Mancuso all concerned the constitutionality of resign-to-run laws, viz.: (1) Mancuso involved a civil service employee who filed as a candidate for nomination as representative to the Rhode Island General Assembly. He assailed the constitutionality of 14.09(c) of the City Home Rule Charter, which prohibits "continuing in the classified service of the city after becoming a candidate for nomination or election to any public office." (2) Letter Carriers involved plaintiffs who alleged that the Civil Service Commission was enforcing, or threatening to enforce, the Hatch Acts prohibition against "active participation in political management or 63 political campaigns" with respect to certain defined activities in which they desired to engage. The plaintiffs relevant to this discussion are: (a) The National Association of Letter Carriers, which alleged that its members were desirous of, among others, running in local elections for offices such as school board member, city council member or mayor; (b) Plaintiff Gee, who alleged that he desired to, but did not, file as a candidate for the office of Borough Councilman in his local community for fear that his participation in a partisan election would endanger his job; and (c) Plaintiff Myers, who alleged that he desired to run as a Republican candidate in the 1971 partisan election for the mayor of West Lafayette, Indiana, and that he would do so except for fear of losing his job by reason of violation of the Hatch Act.

The Hatch Act defines "active participation in political management or political campaigns" by cross-referring to the rules made by the Civil Service Commission. The rule pertinent to our inquiry states: 30. Candidacy for local office: Candidacy for a nomination or for election to any National, State, county, or municipal office is not permissible. The prohibition against political activity extends not merely to formal announcement of candidacy but also to the preliminaries leading to such announcement and to canvassing or soliciting support or doing or permitting to be done any act in furtherance of candidacy. The fact that candidacy, is merely passive is immaterial; if an employee acquiesces in the efforts of friends in furtherance of such candidacy such acquiescence constitutes an infraction of the prohibitions against political activity. (italics supplied) Section 9(b) requires the immediate removal of violators and forbids the use of appropriated funds thereafter to pay 64 compensation to these persons. (3) Broadrick was a class action brought by certain Oklahoma state employees seeking a declaration of unconstitutionality of two sub-paragraphs of Section 818 of Oklahomas Merit System of Personnel Administration Act. Section 818 (7), the paragraph relevant to this discussion, states that "[n]o employee in the classified service shall be a candidate for nomination or election to any paid public office" Violation of Section 818 results in dismissal from employment, possible criminal sanctions and limited state employment ineligibility. Consequently, it cannot be denied that Letter Carriers and Broadrick effectively overruled Mancuso. By no stretch of the imagination could Mancuso still be held operative, as Letter Carriers and Broadrick (i) concerned virtually identical resign-to-run laws, and (ii) were decided by a superior court, the United States Supreme Court. It was thus not surprising for the First Circuit Court of Appeals the same court that decided Mancuso to hold categorically and 65 emphatically in Magill v. Lynch that Mancuso is no longer good law. As we priorly explained: Magill involved Pawtucket, Rhode Island firemen who ran for city office in 1975. Pawtuckets "Little Hatch Act" prohibits city employees from engaging in a broad range of political activities. Becoming a candidate for any city office 66 is specifically proscribed, the violation being punished by removal from office or immediate dismissal. The firemen brought an action against the city officials on the ground that that the provision of the city charter was unconstitutional. However, the court, fully cognizant of Letter Carriers and Broadrick, took the position that Mancuso had since lost considerable vitality. It observed that the view that political candidacy was a fundamental interest which could be infringed upon only if less restrictive alternatives were not available, was a position which was no longer viable, since the Supreme Court (finding that the governments interest in regulating both the conduct and speech of its employees differed significantly from its interest in regulating those of the citizenry in general) had given little weight to the argument that prohibitions against the coercion of government employees were a less drastic means to the same end, deferring to the judgment of Congress, and applying a "balancing" test to determine whether limits on political activity by public employees substantially served government interests which were "important" enough to 67 outweigh the employees First Amendment rights. It must be noted that the Court of Appeals ruled in this manner even though the election in Magill was characterized as nonpartisan, as it was reasonable for the city to fear, under the circumstances of that case, that politically active bureaucrats might use their official power to help political friends and hurt political foes. Ruled the court: The question before us is whether Pawtucket's charter provision, which bars a city employee's candidacy in even a nonpartisan city election, is constitutional. The issue compels us to extrapolate two recent Supreme Court decisions, Civil Service Comm'n v. Nat'l Ass'n of Letter Carriers and Broadrick v. Oklahoma. Both dealt with laws barring civil servants from partisan political activity. Letter Carriers reaffirmed United Public Workers v. Mitchell, upholding the constitutionality of the Hatch Act as to federal employees. Broadrick sustained Oklahoma's "Little Hatch Act" against constitutional attack, limiting its holding to Oklahoma's construction that the Act barred only activity in partisan politics. In Mancuso v. Taft, we assumed that proscriptions of candidacy in nonpartisan elections would not be constitutional. Letter Carriers and Broadrick compel new analysis. xxxx What we are obligated to do in this case, as the district court recognized, is to apply the Courts interest balancing approach to the kind of nonpartisan election revealed in this record. We believe that the district court found more residual vigor in our opinion in Mancuso v. Taft than remains after Letter Carriers. We have particular reference to our view that political candidacy was a fundamental interest which could be trenched upon only if less restrictive alternatives were not available. While this approach may still be viable for citizens who are not government employees, the Court in Letter Carriers recognized that the government's interest in regulating both the conduct and speech of its employees differs significantly from its interest in regulating those of the citizenry in general. Not only was United Public Workers v. Mitchell "unhesitatingly" reaffirmed, but the Court gave little weight to the argument that prohibitions against the coercion of government employees were a less drastic means to the same end, deferring to the judgment of the Congress. We cannot be more precise than the Third Circuit in characterizing the Court's 68 approach as "some sort of 'balancing' process". It appears that the government may place limits on campaigning by public employees if the limits substantially serve government interests that are "important" enough to outweigh the employees' First Amendment rights. x x x (italics supplied) Upholding thus the constitutionality of the law in question, the Magill court detailed the major governmental interests discussed in Letter Carriers and applied them to the Pawtucket provision as follows: In Letter Carriers[,] the first interest identified by the Court was that of an efficient government, faithful to the Congress rather than to party. The district court discounted this interest, reasoning that candidates in a local election

would not likely be committed to a state or national platform. This observation undoubtedly has substance insofar as allegiance to broad policy positions is concerned. But a different kind of possible political intrusion into efficient administration could be thought to threaten municipal government: not into broad policy decisions, but into the particulars of administration favoritism in minute decisions affecting welfare, tax assessments, municipal contracts and purchasing, hiring, zoning, licensing, and inspections. Just as the Court in Letter Carriers identified a second governmental interest in the avoidance of the appearance of "political justice" as to policy, so there is an equivalent interest in avoiding the appearance of political preferment in privileges, concessions, and benefits. The appearance (or reality) of favoritism that the charter's authors evidently feared is not exorcised by the nonpartisan character of the formal election process. Where, as here, party support is a key to successful campaigning, and party rivalry is the norm, the city might reasonably fear that politically active bureaucrats would use their official power to help political friends and hurt political foes. This is not to say that the city's interest in visibly fair and effective administration necessarily justifies a blanket prohibition of all employee campaigning; if parties are not heavily involved in a campaign, the danger of favoritism is less, for neither friend nor foe is as easily identified. A second major governmental interest identified in Letter Carriers was avoiding the danger of a powerful political machine. The Court had in mind the large and growing federal bureaucracy and its partisan potential. The district court felt this was only a minor threat since parties had no control over nominations. But in fact candidates sought party endorsements, and party endorsements proved to be highly effective both in determining who would emerge from the primary election and who would be elected in the final election. Under the prevailing customs, known party affiliation and support were highly significant factors in Pawtucket elections. The charter's authors might reasonably have feared that a politically active public work force would give the incumbent party, and the incumbent workers, an unbreakable grasp on the reins of power. In municipal elections especially, the small size of the electorate and the limited powers of local government may inhibit the growth of interest groups powerful enough to outbalance the weight of a partisan work force. Even when nonpartisan issues and candidacies are at stake, isolated government employees may seek to influence voters or their co-workers improperly; but a more real danger is that a central party structure will mass the scattered powers of government workers behind a single party platform or slate. Occasional misuse of the public trust to pursue private political ends is tolerable, especially because the political views of individual employees may balance each other out. But party discipline eliminates this diversity and tends to make abuse systematic. Instead of a handful of employees pressured into advancing their immediate superior's political ambitions, the entire government work force may be expected to turn out for many candidates in every election. In Pawtucket, where parties are a continuing presence in political campaigns, a carefully orchestrated use of city employees in support of the incumbent party's candidates is possible. The danger is scarcely lessened by the openness of Pawtucket's nominating procedure or the lack of party labels on its ballots. The third area of proper governmental interest in Letter Carriers was ensuring that employees achieve advancement on their merits and that they be free from both coercion and the prospect of favor from political activity. The district court did not address this factor, but looked only to the possibility of a civil servant using his position to influence voters, and held this to be no more of a threat than in the most nonpartisan of elections. But we think that the possibility of coercion of employees by superiors remains as strong a factor in municipal elections as it was in Letter Carriers. Once again, it is the systematic and coordinated exploitation of public servants for political ends that a legislature is most likely to see as the primary threat of employees' rights. Political oppression of public employees will be rare in an entirely nonpartisan system. Some superiors may be inclined to ride herd on the politics of their employees even in a nonpartisan context, but without party officials looking over their shoulders most supervisors will prefer to let employees go their own ways. In short, the government may constitutionally restrict its employees' participation in nominally nonpartisan elections if political parties play a large role in the campaigns. In the absence of substantial party involvement, on the other hand, the interests identified by the Letter Carriers Court lose much of their force. While the employees' First Amendment rights would normally outbalance these diminished interests, we do not suggest that they would always do so. Even when parties are absent, many employee campaigns might be thought to endanger at least one strong public interest, an interest that looms larger in the context of municipal elections than it does in the national elections considered in Letter Carriers. The city could reasonably fear the prospect of a subordinate running directly against his superior or running for a position that confers great power over his superior. An employee of a federal agency who seeks a Congressional seat poses less of a direct challenge to the command and discipline of his agency than a fireman or policeman who runs for mayor or city council. The possibilities of internal discussion, cliques, and political bargaining, should an employee gather substantial political support, are considerable. (citations omitted) The court, however, remanded the case to the district court for further proceedings in respect of the petitioners overbreadth charge. Noting that invalidating a statute for being overbroad is "not to be taken lightly, much less to be taken in the dark," the court held: The governing case is Broadrick, which introduced the doctrine of "substantial" overbreadth in a closely analogous case. Under Broadrick, when one who challenges a law has engaged in constitutionally unprotected conduct (rather than unprotected speech) and when the challenged law is aimed at unprotected conduct, "the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Two major uncertainties attend the doctrine: how to distinguish speech from conduct, and how to define "substantial" overbreadth. We are spared the first inquiry by Broadrick itself. The plaintiffs in that case had solicited support for a

candidate, and they were subject to discipline under a law proscribing a wide range of activities, including soliciting contributions for political candidates and becoming a candidate. The Court found that this combination required a substantial overbreadth approach. The facts of this case are so similar that we may reach the same result without worrying unduly about the sometimes opaque distinction between speech and conduct. The second difficulty is not so easily disposed of. Broadrick found no substantial overbreadth in a statute restricting partisan campaigning. Pawtucket has gone further, banning participation in nonpartisan campaigns as well. Measuring the substantiality of a statute's overbreadth apparently requires, inter alia, a rough balancing of the number of valid applications compared to the number of potentially invalid applications. Some sensitivity to reality is needed; an invalid application that is far-fetched does not deserve as much weight as one that is probable. The question is a matter of degree; it will never be possible to say that a ratio of one invalid to nine valid applications makes a law substantially overbroad. Still, an overbreadth challenger has a duty to provide the court with some idea of the number of potentially invalid applications the statute permits. Often, simply reading the statute in the light of common experience or litigated cases will suggest a number of probable invalid applications. But this case is different. Whether the statute is overbroad depends in large part on the number of elections that are insulated from party rivalry yet closed to Pawtucket employees. For all the record shows, every one of the city, state, or federal elections in Pawtucket is actively contested by political parties. Certainly the record suggests that parties play a major role even in campaigns that often are entirely nonpartisan in other cities. School committee candidates, for example, are endorsed by the local Democratic committee. The state of the record does not permit us to find overbreadth; indeed such a step is not to be taken lightly, much less to be taken in the dark. On the other hand, the entire focus below, in the short period before the election was held, was on the constitutionality of the statute as applied. Plaintiffs may very well feel that further efforts are not justified, but they should be afforded the opportunity to demonstrate that the charter forecloses access to a significant number of offices, the candidacy for which by municipal employees would not pose the possible threats to government efficiency and integrity which Letter Carriers, as we have interpreted it, deems significant. Accordingly, we remand for consideration of plaintiffs' overbreadth claim. (italics supplied, citations omitted) Clearly, Letter Carriers, Broadrick, and Magill demonstrate beyond doubt that Mancuso v. Taft, heavily relied upon by 69 the ponencia, has effectively been overruled. As it is no longer good law, the ponencias exhortation that "[since] the Americans, from whom we copied the provision in question, had already stricken down a similar measure for being 70 unconstitutional[,] it is high-time that we, too, should follow suit" is misplaced and unwarranted. Accordingly, our assailed Decisions submission that the right to run for public office is "inextricably linked" with two fundamental freedoms those of expression and association lies on barren ground. American case law has in fact 71 never recognized a fundamental right to express ones political views through candidacy, as to invoke a rigorous 72 73 standard of review. Bart v. Telford pointedly stated that "[t]he First Amendment does not in terms confer a right to run for public office, and this court has held that it does not do so by implication either." Thus, ones interest in 74 seeking office, by itself, is not entitled to constitutional protection. Moreover, one cannot bring ones action under the rubric of freedom of association, absent any allegation that, by running for an elective position, one is advancing 75 the political ideas of a particular set of voters. Prescinding from these premises, it is crystal clear that the provisions challenged in the case at bar, are not violative of the equal protection clause. The deemed-resigned provisions substantially serve governmental interests (i.e., (i) efficient civil service faithful to the government and the people rather than to party; (ii) avoidance of the appearance of "political justice" as to policy; (iii) avoidance of the danger of a powerful political machine; and (iv) ensuring that employees achieve advancement on their merits and that they be free from both coercion and the prospect of favor from political activity). These are interests that are important enough to outweigh the non-fundamental right of appointive officials and employees to seek elective office.1avvphi1 76 En passant, we find it quite ironic that Mr. Justice Nachura cites Clements v. Fashing and Morial, et al. v. Judiciary 77 Commission of the State of Louisiana, et al. to buttress his dissent. Maintaining that resign-to-run provisions are valid only when made applicable to specified officials, he explains: U.S. courts, in subsequent cases, sustained the constitutionality of resign-to-run provisions when applied to 78 specified or particular officials, as distinguished from all others, under a classification that is germane to the purposes of the law. These resign-to-run legislations were not expressed in a general and sweeping provision, and thus did not violate the test of being germane to the purpose of the law, the second requisite for a valid classification. Directed, as they were, to particular officials, they were not overly encompassing as to be overbroad. (emphasis in the original) This reading is a regrettable misrepresentation of Clements and Morial. The resign-to-run provisions in these cases were upheld not because they referred to specified or particular officials (vis--vis a general class); the questioned provisions were found valid precisely because the Court deferred to legislative judgment and found that a regulation is not devoid of a rational predicate simply because it happens to be incomplete. In fact, the equal protection challenge in Clements revolved around the claim that the State of Texas failed to explain why some public officials are subject to the resign-to-run provisions, while others are not. Ruled the United States Supreme Court: Article XVI, 65, of the Texas Constitution provides that the holders of certain offices automatically resign their positions if they become candidates for any other elected office, unless the unexpired portion of the current term is one year or less. The burdens that 65 imposes on candidacy are even less substantial than those imposed by 19.

The two provisions, of course, serve essentially the same state interests. The District Court found 65 deficient, however, not because of the nature or extent of the provision's restriction on candidacy, but because of the manner in which the offices are classified. According to the District Court, the classification system cannot survive equal protection scrutiny, because Texas has failed to explain sufficiently why some elected public officials are subject to 65 and why others are not. As with the case of 19, we conclude that 65 survives a challenge under the Equal Protection Clause unless appellees can show that there is no rational predicate to the classification scheme. The history behind 65 shows that it may be upheld consistent with the "one step at a time" approach that this Court has undertaken with regard to state regulation not subject to more vigorous scrutiny than that sanctioned by the traditional principles. Section 65 was enacted in 1954 as a transitional provision applying only to the 1954 election. Section 65 extended the terms of those offices enumerated in the provision from two to four years. The provision also staggered the terms of other offices so that at least some county and local offices would be contested at each election. The automatic resignation proviso to 65 was not added until 1958. In that year, a similar automatic resignation provision was added in Art. XI, 11, which applies to officeholders in home rule cities who serve terms longer than two years. Section 11 allows home rule cities the option of extending the terms of municipal offices from two to up to four years. Thus, the automatic resignation provision in Texas is a creature of the State's electoral reforms of 1958. That the State did not go further in applying the automatic resignation provision to those officeholders whose terms were not extended by 11 or 65, absent an invidious purpose, is not the sort of malfunctioning of the State's lawmaking process forbidden by the Equal Protection Clause. A regulation is not devoid of a rational predicate simply because it happens to be incomplete. The Equal Protection Clause does not forbid Texas to restrict one elected officeholder's candidacy for another elected office unless and until it places similar restrictions on other officeholders. The provision's language and its history belie any notion that 65 serves the invidious purpose of denying access to the political process to identifiable classes of potential candidates. (citations omitted and italics supplied) Furthermore, it is unfortunate that the dissenters took the Morial line that "there is no blanket approval of restrictions on the right of public employees to become candidates for public office" out of context. A correct reading of that line readily shows that the Court only meant to confine its ruling to the facts of that case, as each equal protection challenge would necessarily have to involve weighing governmental interests vis--vis the specific prohibition assailed. The Court held: The interests of public employees in free expression and political association are unquestionably entitled to the protection of the first and fourteenth amendments. Nothing in today's decision should be taken to imply that public employees may be prohibited from expressing their private views on controversial topics in a manner that does not interfere with the proper performance of their public duties. In today's decision, there is no blanket approval of restrictions on the right of public employees to become candidates for public office. Nor do we approve any general restrictions on the political and civil rights of judges in particular. Our holding is necessarily narrowed by the methodology employed to reach it. A requirement that a state judge resign his office prior to becoming a candidate for non-judicial office bears a reasonably necessary relation to the achievement of the state's interest in preventing the actuality or appearance of judicial impropriety. Such a requirement offends neither the first amendment's guarantees of free expression and association nor the fourteenth amendment's guarantee of equal protection of the laws. (italics supplied) Indeed, the Morial court even quoted Broadrick and stated that: In any event, the legislature must have some leeway in determining which of its employment positions require restrictions on partisan political activities and which may be left unregulated. And a State can hardly be faulted for attempting to limit the positions upon which such restrictions are placed. (citations omitted) V. Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code Do Not Suffer from Overbreadth Apart from nullifying Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code on equal protection ground, our assailed Decision struck them down for being overbroad in two respects, viz.: (1) The assailed provisions limit the candidacy of all civil servants holding appointive posts without due regard for the type of position being held by the employee seeking an elective post and the degree of 79 influence that may be attendant thereto; and (2) The assailed provisions limit the candidacy of any and all civil servants holding appointive positions without due regard for the type of office being sought, whether it be partisan or nonpartisan in character, or in the national, municipal or barangay level. Again, on second look, we have to revise our assailed Decision. i. Limitation on Candidacy Regardless of Incumbent Appointive Officials Position, Valid According to the assailed Decision, the challenged provisions of law are overly broad because they apply indiscriminately to all civil servants holding appointive posts, without due regard for the type of position being held by the employee running for elective office and the degree of influence that may be attendant thereto. Its underlying assumption appears to be that the evils sought to be prevented are extant only when the incumbent appointive official running for elective office holds an influential post.

Such a myopic view obviously fails to consider a different, yet equally plausible, threat to the government posed by the partisan potential of a large and growing bureaucracy: the danger of systematic abuse perpetuated by a "powerful political machine" that has amassed "the scattered powers of government workers" so as to give itself and its 80 81 incumbent workers an "unbreakable grasp on the reins of power." As elucidated in our prior exposition: Attempts by government employees to wield influence over others or to make use of their respective positions (apparently) to promote their own candidacy may seem tolerable even innocuous particularly when viewed in isolation from other similar attempts by other government employees. Yet it would be decidedly foolhardy to discount the equally (if not more) realistic and dangerous possibility that such seemingly disjointed attempts, when taken together, constitute a veiled effort on the part of an emerging central party structure to advance its own agenda through a "carefully orchestrated use of [appointive and/or elective] officials" coming from various levels of the bureaucracy. [T]he avoidance of such a "politically active public work force" which could give an emerging political machine an "unbreakable grasp on the reins of power" is reason enough to impose a restriction on the candidacies of all appointive public officials without further distinction as to the type of positions being held by such employees or the degree of influence that may be attendant thereto. (citations omitted) ii. Limitation on Candidacy Regardless of Type of Office Sought, Valid The assailed Decision also held that the challenged provisions of law are overly broad because they are made to apply indiscriminately to all civil servants holding appointive offices, without due regard for the type of elective office being sought, whether it be partisan or nonpartisan in character, or in the national, municipal or barangay level. This erroneous ruling is premised on the assumption that "the concerns of a truly partisan office and the temptations it fosters are sufficiently different from those involved in an office removed from regular party politics [so as] to warrant 82 distinctive treatment," so that restrictions on candidacy akin to those imposed by the challenged provisions can validly apply only to situations in which the elective office sought is partisan in character. To the extent, therefore, that such restrictions are said to preclude even candidacies for nonpartisan elective offices, the challenged restrictions are to be considered as overbroad. Again, a careful study of the challenged provisions and related laws on the matter will show that the alleged overbreadth is more apparent than real. Our exposition on this issue has not been repudiated, viz.: A perusal of Resolution 8678 will immediately disclose that the rules and guidelines set forth therein refer to the filing of certificates of candidacy and nomination of official candidates of registered political parties, in connection with the 83 May 10, 2010 National and Local Elections. Obviously, these rules and guidelines, including the restriction in Section 4(a) of Resolution 8678, were issued specifically for purposes of the May 10, 2010 National and Local Elections, which, it must be noted, are decidedly partisan in character. Thus, it is clear that the restriction in Section 4(a) of RA 8678 applies only to the candidacies of appointive officials vying for partisan elective posts in the May 10, 2010 National and Local Elections. On this score, the overbreadth challenge leveled against Section 4(a) is clearly unsustainable. Similarly, a considered review of Section 13 of RA 9369 and Section 66 of the Omnibus Election Code, in conjunction with other related laws on the matter, will confirm that these provisions are likewise not intended to apply to elections for nonpartisan public offices. The only elections which are relevant to the present inquiry are the elections for barangay offices, since these are the 84 only elections in this country which involve nonpartisan public offices. In this regard, it is well to note that from as far back as the enactment of the Omnibus Election Code in 1985, Congress has intended that these nonpartisan barangay elections be governed by special rules, including a separate rule on deemed resignations which is found in Section 39 of the Omnibus Election Code. Said provision states: Section 39. Certificate of Candidacy. No person shall be elected punong barangay or kagawad ng sangguniang barangay unless he files a sworn certificate of candidacy in triplicate on any day from the commencement of the election period but not later than the day before the beginning of the campaign period in a form to be prescribed by the Commission. The candidate shall state the barangay office for which he is a candidate. xxxx Any elective or appointive municipal, city, provincial or national official or employee, or those in the civil or military service, including those in government-owned or-controlled corporations, shall be considered automatically resigned upon the filing of certificate of candidacy for a barangay office. Since barangay elections are governed by a separate deemed resignation rule, under the present state of law, there would be no occasion to apply the restriction on candidacy found in Section 66 of the Omnibus Election Code, and later reiterated in the proviso of Section 13 of RA 9369, to any election other than a partisan one. For this reason, the overbreadth challenge raised against Section 66 of the Omnibus Election Code and the pertinent proviso in Section 85 13 of RA 9369 must also fail. In any event, even if we were to assume, for the sake of argument, that Section 66 of the Omnibus Election Code and the corresponding provision in Section 13 of RA 9369 are general rules that apply also to elections for nonpartisan public offices, the overbreadth challenge would still be futile. Again, we explained: In the first place, the view that Congress is limited to controlling only partisan behavior has not received judicial imprimatur, because the general proposition of the relevant US cases on the matter is simply that the government

has an interest in regulating the conduct and speech of its employees that differs significantly from those it possesses 86 in connection with regulation of the speech of the citizenry in general. Moreover, in order to have a statute declared as unconstitutional or void on its face for being overly broad, particularly where, as in this case, "conduct" and not "pure speech" is involved, the overbreadth must not only be real, but 87 substantial as well, judged in relation to the statutes plainly legitimate sweep. In operational terms, measuring the substantiality of a statutes overbreadth would entail, among other things, a rough 88 balancing of the number of valid applications compared to the number of potentially invalid applications. In this regard, some sensitivity to reality is needed; an invalid application that is far-fetched does not deserve as much 89 90 weight as one that is probable. The question is a matter of degree. Thus, assuming for the sake of argument that the partisan-nonpartisan distinction is valid and necessary such that a statute which fails to make this distinction is susceptible to an overbreadth attack, the overbreadth challenge presently mounted must demonstrate or provide this Court with some idea of the number of potentially invalid elections (i.e. the number of elections that were insulated from party rivalry but were nevertheless closed to appointive employees) that may in all probability result from the 91 enforcement of the statute. The state of the record, however, does not permit us to find overbreadth. Borrowing from the words of Magill v. 92 Lynch, indeed, such a step is not to be taken lightly, much less to be taken in the dark, especially since an overbreadth finding in this case would effectively prohibit the State from enforcing an otherwise valid measure 93 against conduct that is admittedly within its power to proscribe. This Court would do well to proceed with tiptoe caution, particularly when it comes to the application of the overbreadth doctrine in the analysis of statutes that purportedly attempt to restrict or burden the exercise of the right to freedom of speech, for such approach is manifestly strong medicine that must be used sparingly, and only as a last 94 resort. In the United States, claims of facial overbreadth have been entertained only where, in the judgment of the court, the possibility that protected speech of others may be muted and perceived grievances left to fester (due to the possible inhibitory effects of overly broad statutes) outweighs the possible harm to society in allowing some unprotected 95 speech or conduct to go unpunished. Facial overbreadth has likewise not been invoked where a limiting construction could be placed on the challenged statute, and where there are readily apparent constructions that 96 would cure, or at least substantially reduce, the alleged overbreadth of the statute. In the case at bar, the probable harm to society in permitting incumbent appointive officials to remain in office, even as they actively pursue elective posts, far outweighs the less likely evil of having arguably protected candidacies blocked by the possible inhibitory effect of a potentially overly broad statute. a1f In this light, the conceivably impermissible applications of the challenged statutes which are, at best, bold predictions cannot justify invalidating these statutes in toto and prohibiting the State from enforcing them against conduct that is, and has for more than 100 years been, unquestionably within its power and interest to 97 proscribe. Instead, the more prudent approach would be to deal with these conceivably impermissible applications 98 through case-by-case adjudication rather than through a total invalidation of the statute itself. Indeed, the anomalies spawned by our assailed Decision have taken place. In his Motion for Reconsideration, intervenor Drilon stated that a number of high-ranking Cabinet members had already filed their Certificates of 99 Candidacy without relinquishing their posts. Several COMELEC election officers had likewise filed their Certificates 100 of Candidacy in their respective provinces. Even the Secretary of Justice had filed her certificate of substitution for 101 representative of the first district of Quezon province last December 14, 2009 even as her position as Justice 102 Secretary includes supervision over the City and Provincial Prosecutors, who, in turn, act as Vice-Chairmen of the 103 respective Boards of Canvassers. The Judiciary has not been spared, for a Regional Trial Court Judge in the South has thrown his hat into the political arena. We cannot allow the tilting of our electoral playing field in their favor. For the foregoing reasons, we now rule that Section 4(a) of Resolution 8678 and Section 13 of RA 9369, which merely reiterate Section 66 of the Omnibus Election Code, are not unconstitutionally overbroad. IN VIEW WHEREOF, the Court RESOLVES to GRANT the respondents and the intervenors Motions for Reconsideration; REVERSE and SET ASIDE this Courts December 1, 2009 Decision; DISMISS the Petition; and ISSUE this Resolution declaring as not UNCONSTITUTIONAL (1) Section 4(a) of COMELEC Resolution No. 8678, (2) the second proviso in the third paragraph of Section 13 of Republic Act No. 9369, and (3) Section 66 of the Omnibus Election Code. SO ORDERED.

ATTY. REYNANTE B. ORCEO, Petitioner,

G.R. No. 190779 Present: PUNO, C.J., ** CARPIO, CORONA, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, and MENDOZA, JJ.
*

- versus -

COMMISSION ON ELECTIONS, Promulgated: Respondent. March 26, 2010 x---- ------------------------------------------------------------------------------------x DECISION

PERALTA, J.: This is a petition for certiorari questioning the validity of Resolution No. 8714 insofar as it provides that the term firearm includes airsoft guns and their replicas/imitations, which results in their coverage by the gun ban during the election period this year. Resolution No. 8714 is entitled Rules and Regulations on the: (1) Bearing, Carrying or Transporting of Firearms or other Deadly Weapons; and (2) Employment, Availment or Engagement of the Services of Security Personnel or Bodyguards, During the Election Period for the May 10, 2010 National and Local Elections . The Resolution was promulgated by the Commission on Elections (COMELEC) on December 16, 2009, and took effect on December 25, 2009. Resolution No. 8714 contains the implementing rules and regulations of Sec. 32 (Who May Bear Firearms) and Section 33 (Security Personnel and Bodyguards) of Republic Act (R.A.) No. 7166, entitled An Act Providing for Synchronized National and Local Elections and for Electoral Reforms, Authorizing Appropriations Therefor, and for Other Purposes. Section 1 of Resolution No. 8714 prohibits an unauthorized person from bearing, carrying or transporting firearms or other deadly weapons in public places, including all public buildings, streets, parks, and private vehicles or public conveyances, even if licensed to possess or carry the same, during the election period. Under Section 2 (b) of Resolution No. 8714, the term firearm includes airgun, airsoft guns, and their replica/imitation in whatever form that can cause an ordinary person to believe that they are real. Hence, airsoft guns and their replicas/imitations are included in the gun ban during the election period from January 10, 2010 to June 9, 2010. Petitioner claims that he is a real party-in-interest, because he has been playing airsoft since the year 2000. The continuing implementation of Resolution No. 8714 will put him in danger of sustaining direct injury or make [2] him liable for an election offense if caught in possession of an airsoft gun and its replica/imitation in going to and from the game site and playing the sport during the election period. Petitioner contends that the COMELEC gravely abused its discretion amounting to lack or excess of jurisdiction in including airsoft guns and their replicas/imitations in the definition of firearm in Resolution No. 8714, since there is nothing in R.A. No. 7166 that mentions airsoft guns and their replicas/imitations. He asserts that the intendment of R.A. No. 7166 is that the term firearm refers to real firearm in its common and ordinary usage. I n [3] support of this assertion, he cites the Senate deliberation on the bill, which later became R.A. No. 7166, where it
[1]

was clarified that an unauthorized person caught carrying a firearm during the election period is guilty of an election offense under Section 261 (q) of the Omnibus Election Code. Further, petitioner alleges that there is no law that covers airsoft guns. By including airsoft guns in the definition of firearm, Resolution No. 8714, in effect, criminalizes the sport, since the possession of an airsoft gun or its replica/imitation is now an election offense, although there is still no law that governs the use thereof. Petitioner prays that the Court render a decision as follows: (1) Annulling Resolution No. 8714 insofar as it includes airsoft guns and their replicas/imitations within the meaning of firearm, and declaring the Resolution as invalid; (2) ordering the COMELEC to desist from further implementing Resolution No. 8714 insofar as airsoft guns and their replicas/imitations are concerned; (3) ordering the COMELEC to amend Resolution No. 8714 by removing airsoft guns and their replicas/imitations within the meaning of firearm; and (4 ) ordering the COMELEC to issue a Resolution directing the Armed Forces of the Philippines, Philippine National Police and other law enforcement agencies deputized by the COMELEC to desist from further enforcing Resolution No. 8714 insofar as airsoft guns and their replicas/imitations are concerned. The main issue is whether or not the COMELEC gravely abused its discretion in including airsoft guns and their replicas/imitations in the term firearm in Section 2 (b) of R.A. No. 8714. The Court finds that the COMELEC did not commit grave abuse of discretion in this case. R.A. No. 7166 (An Act Providing for Synchronized National and Local Elections and for Electoral Reforms, [4] Authorizing Appropriations Therefor, and for Other Purposes) provides: SEC. 32. Who May Bear Firearms. During the election period, no person shall bear, carry or transport firearms or other deadly weapons in public places, including any building, street, park, private vehicle or public conveyance, even if licensed to possess or carry the same, unless authorized in writing by the Commission. The issuance of firearms licenses shall be suspended during the election period. Only regular members or officers of the Philippine National Police, the Armed Forces of the Philippines and other law enforcement agencies of the Government who are duly deputized in writing by the Commission for election duty may be authorized to carry and possess firearms during the election period: Provided, That, when in the possession of firearms, the deputized law enforcement officer must be: (a) in full uniform showing clearly and legibly his name, rank and serial number, which shall remain visible at all times; and (b) in the actual performance of his election duty in the specific area designated by the Commission. xxxx SEC. 35. Rules and Regulations. The Commission shall issue rules and regulations to implement this Act. Said rules shall be published in at least two (2) national newspapers of general circulation. Pursuant to Section 35 of R.A. No. 7166, the COMELEC promulgated Resolution No. 8714, which contains the implementing rules and regulations of Sections 32 and 33 of R.A. No. 7166. The pertinent portion of the Resolution states: NOW, THEREFORE, pursuant to the powers vested in it by the Constitution of the Republic of the Philippines, the Omnibus Election Code (B.P. Blg. 881), Republic Acts Nos. 6646, 7166, 8189, 8436, 9189, 9369 and other elections laws, the Commission RESOLVED, as it hereby RESOLVES, to promulgate the following rules and regulations to implement Sections 32 and 33 of Republic Act No. 7166 in connection with the conduct of the May 10, 2010 national and local elections: SECTION 1. General Guiding Principles. During the election period: (a) no person shall bear, carry or transport firearms or other deadly weapons in public places, including all public buildings, streets, parks, and private vehicles or public conveyances, even if licensed to possess or carry the same; and (b) no candidate for public office, including incumbent public officers seeking election to any public office, shall employ, avail himself of or engage the services of security personnel or bodyguards, whether or not such bodyguards are

regular members or officers of the Philippine National Police (PNP), the Armed Forces of the Philippines (AFP) or other law enforcement agency of the Government. The transport of firearms of those who are engaged in the manufacture, importation, exportation, purchase, sale of firearms, explosives and their spare parts or those involving the transportation of firearms, explosives and their spare parts, may, with prior notice to the Commission, be authorized by the Director General of the PNP provided that the firearms, explosives and their spare parts are immediately transported to the Firearms and Explosives Division, CSG, PNP. SEC. 2. Definition of Terms. As used in this Resolution: (a) Election Period refers to the election period prescribed in Comelec Resolution No. 8646 dated 14 July 2009 which is from 10 January 2010 to 09 June 2010; (b) Firearm shall refer to the "firearm" as defined in existing laws, rules and regulations. The term also includes airgun, airsoft guns, and their replica/imitation in whatever form that can cause an ordinary person to believe that they are real ; (c) Deadly weapon includes explosives, except pyrotechnics. xxxx bladed instrument, handgrenades or other

SEC. 4. Who May Bear Firearms. Only the following persons who are in the regular plantilla of the PNP or AFP or other law enforcement agencies are authorized to bear, carry or transport firearms or other deadly weapons during the election period: (a) Regular member or officer of the PNP, the AFP and other law enforcement agencies of the Government, provided that when in the possession of firearm, he is: (1) in the regular plantilla of the said agencies and is receiving regular compensation for the services rendered in said agencies; and (2) in the agency-prescribed uniform showing clearly and legibly his name, rank and serial number or, in case rank and serial number are inapplicable, his agency-issued identification card showing clearly his name and position, which identification card shall remain visible at all times; (3) duly licensed to possess firearm and to carry the same outside of residence by means of a valid mission order or letter order; and (4) in the actual performance of official law enforcement duty, or in going to or returning from his residence/barracks or official station. xxxx (b) Member of privately owned or operated security, investigative, protective or intelligence agencies duly authorized by the PNP, provided that when in the possession of firearm, he is: (1) in the agency-prescribed uniform with his agencyissued identification card prominently displayed and visible at all times, showing clearly his name and position; and (2) in the actual performance of duty at his specified place/area of duty. xxxx SEC. 8. Enforcement. Any person who, not wearing the authorized uniform mentioned herein, bears, carries or transports firearm or other deadly weapon, shall be presumed [5] unauthorized to carry firearms and subject to arrest. Petitioner contends that under R.A. No. 7166, the term firearm connotes real fir earm. Moreover, R.A. No. 7166 does not mention airsoft guns and their replicas/imitations. Hence, its implementing rules and regulations contained in Resolution No. 8714 should not include airsoft guns and their replicas/imitations in the definition of the term firearm. The Court is not persuaded. [6] Holy Spirit Homeowners Association, Inc. v. Defensor held:

Where a rule or regulation has a provision not expressly stated or contained in the statute being implemented, that provision does not necessarily contradict the statute. A legislative rule is in the nature of subordinate legislation, designed to implement a primary legislation by providing the details thereof. All that is required is that the regulation should be germane to the objects and purposes of the law; that the regulation be not in contradiction to, but in conformity [7] with, the standards prescribed by the law .

Evidently, the COMELEC had the authority to promulgate Resolution No. 8714 pursuant to Section 35 of R.A. No. 7166. It was granted the power to issue the implementing rules and regulations of Sections 32 and 33 of R.A. No. 7166. Under this broad power, the COMELEC was mandated to provide the details of who may bear, carry or transport firearms or other deadly weapons, as well as the definition of firearms, among others. These details are left to the discretion of the COMELEC, which is a constitutional body that possesses special knowledge and expertise on election matters, with the objective of ensuring the holding of free, orderly, honest, peaceful and credible elections. In its Comment, the COMELEC, represented by the Office of the Solicitor General, states that the COMELECs intent in the inclusion of airsoft guns in the term firearm and their resultant coverage by the election gun ban is to avoid the possible use of recreational guns in sowing fear, intimidation or terror during the election period. An ordinary citizen may not be able to distinguish between a real gun and an airsoft gun. It is fear subverting the will of a voter, whether brought about by the use of a real gun or a recreational gun, which is sought to be averted. Ultimately, the objective is to ensure the holding of free, orderly, honest, peaceful and credible elections this year. Contrary to petitioners allegation, there is a regulation that governs the possession and carriage of airsoft rifles/pistols, namely, Philippine National Police (PNP) Circular No. 11 dated December 4, 2007, entitled Revised Rules and Regulations Governing the Manufacture, Importation, Exportation, Sale, Possession, Carrying of Airsoft Rifles/Pistols and Operation of Airsoft Game Sites and Airsoft Teams. The Circular defines an airsoft gun as follows: Airsoft Rifle/Pistol x x x includes battery operated, spring and gas type powered rifles/pistols which discharge plastic or rubber pellets only as bullets or ammunition. This differs from replica as the latter does not fire plastic or rubber pellet.
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PNP Circular No. 11 classifies the airsoft rifle/pistol as a special type of air gun, which is restricted in its use [9] only to sporting activities, such as war game simulation. Any person who desires to possess an airsoft rifle/pistol needs a license from the PNP, and he shall file his application in accordance with PNP Standard Operating [10] Procedure No. 13, which prescribes the procedure to be followed in the licensing of firearms. The minimum age [11] limit of the applicant is 18 years old. The Circular also requires a Permit to Transport an airsoft rifle/pistol from the [12] place of residence to any game or exhibition site. A license to possess an airsoft gun, just like ordinary licenses in other regulated fields, does not confer an absolute right, but only a personal privilege to be exercised under existing restrictions, and such as may thereafter be [13] reasonably imposed. The inclusion of airsoft guns and airguns in the term firearm in Resolution No. 8714 for purposes of the gun ban during the election period is a reasonable restriction, the objective of which is to ensure the holding of free, orderly, honest, peaceful and credible elections. However, the Court excludes the replicas and imitations of airsoft guns and airguns from the term firearm under Resolution No. 8714, because they are not subject to any regulation, unlike airsoft guns. Petitioner further contends that Resolution No. 8714 is not in accordance with the State policies in these constitutional provisions: Art. II, Sec. 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. x x x Art. XV, Sec. 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. Art. II, Sec. 17. The State shall give priority to x x x sports to foster patriotism and nationalism, accelerate social progress, and promote total human liberation and development.

Petitioner asserts that playing airsoft provides bonding moments among family members. Families are entitled to protection by the society and the State under the Universal Declaration of Human Rights. They are free to choose and enjoy their recreational activities. These liberties, petitioner contends, cannot be abridged by the COMELEC. In its Comment, the COMELEC, through the Solicitor General, states that it adheres to the aforementioned state policies, but even constitutional freedoms are not absolute, and they may be abridged to some extent to serve appropriate and important interests. As a long-time player of the airsoft sport, it is presumed that petitioner has a license to possess an airsoft gun. As a lawyer, petitioner is aware that a licensee of an airsoft gun is subject to the restrictions imposed upon him by PNP Circular No. 11 and other valid restrictions, such as Resolution No. 8714. These restrictions exist in spite of the aforementioned State policies, which do not directly uphold a licensees absolute ri ght to possess or carry an airsoft gun under any circumstance. Petitioners allegation of grave abuse of discretion by respondent COMELEC implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction or, in other words, the exercise of power in an arbitrary manner by reason of passion, prejudice or personal hostility, and it must be so patent or gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of [14] law. The Court holds that the COMELEC did not gravely abuse its discretion in including airsoft guns and airguns in the term firearm in Resolution No. 8714 for purposes of the gun ban during the election period, with the apparent objective of ensuring free, honest, peaceful and credible elections this year. However, the replicas and imitations of airsoft guns and airguns are excluded from the term firearm in Resolution No. 8714. WHEREFORE, the petition is PARTLY GRANTED insofar as the exclusion of replicas and imitations of airsoft guns from the term firearm is concerned. Replicas and imitations of airsoft guns and airguns are hereby declared excluded from the term firearm in Resolution No. 8714. The petition is DISMISSED in regard to the exclusion of airsoft guns from the term firearm in Resolution No. 8714. Airsoft guns and airguns are covered by the gun ban during the election period. No costs. SO ORDERED. ANG LADLAD VS. COMELEC Facts: Petitioner is a national organization which represents the lesbians, gays, bisexuals, and trans-genders. It filed a petition for accreditation as a party-list organization to public respondent. However, due to moral grounds, the latter denied the said petition. To buttress their denial, COMELEC cited certain biblical and quranic passages in their decision. It also stated that since their ways are immoral and contrary to public policy, they are considered nuissance. In fact, their acts are even punishable under the Revised Penal Code in its Article 201. A motion for reconsideration being denied, Petitioner filed this instant Petition on Certiorari under Rule 65 of the ROC. Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by using religious dogma, violated the constitutional guarantees against the establishment of religion. Petitioner also claimed that the Assailed Resolutions contravened its constitutional rights to privacy, freedom of speech and assembly, and equal protection of laws, as well as constituted violations of the Philippines international obligations against discrimination based on sexual orientation. In its Comment, the COMELEC reiterated that petitioner does not have a concrete and genuine national political agenda to benefit the nation and that the petition was validly dismissed on moral grounds. It also argued for the first time that the LGBT sector is not among the sectors enumerated by the Constitution and RA 7941, and that petitioner made untruthful statements in its petition when it alleged its national existence contrary to actual verification reports by COMELECs field personnel. Issue: WON Respondent violated the Non-establishment clause of the Constitution; WON Respondent erred in denying Petitioners application on moral and legal grounds. Held: Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the proposition that only those sectors specifically enumerated in the law or related to said sectors (labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals) may be registered under the party-list system. As we explicitly ruled in Ang Bagong Bayani-OFW Labor Party v. Commission on

Elections, the enumeration of marginalized and under-represented sectors is not exclusive. The crucial element is not whether a sector is specifically enumerated, but whether a particular organization complies with the requirements of the Constitution and RA 7941. Our Constitution provides in Article III, Section 5 that [n]o law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. At bottom, what our non-establishment clause calls for is government neutrality in religious matters. Clearly, governmental reliance on religious justification is inconsistent with this policy of neutrality. We thus find that it was grave violation of the non -establishment clause for the COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang Ladlad. Be it noted that government action must have a secular purpose. Respondent has failed to explain what societal ills are sought to be prevented, or why special protection is required for the youth. Neither has the COMELEC condescended to justify its position that petitioners admission into the party-list system would be so harmful as to irreparably damage the moral fabric of society. We also find the COMELECs reference to purported violations of our penal and civil laws flimsy, at best; disingenuous, at worst. Article 694 of the Civil Code defines a nuisance as any act, omission, establishment, condition of property, or anything else which shocks , defies, or disregards decency or morality, the remedies for which are a prosecution under the Revised Penal Code or any local ordinance, a civil action, or abatement without judicial proceedings. A violation of Article 201 of the Revised Penal Code, on the other hand, requires proof beyond reasonable doubt to support a criminal conviction. It hardly needs to be emphasized that mere allegation of violation of laws is not proof, and a mere blanket invocation of public morals cannot replace the institution of civil or criminal proceedings and a judicial determination of liability or culpability. As such, we hold that moral disapproval, without more, is not a sufficient governmental interest to justify exclusion of homosexuals from participation in the party-list system. The denial of Ang Ladlads registration on purely moral grounds amounts more to a statement of dislike and disapproval of homosexuals, rather than a tool to further any substantial public interest. Republic of the Philippines SUPREME COURT Baguio City EN BANC G.R. No. 180917 April 23, 2010 ATTY. VICENTE E. SALUMBIDES, JR., and GLENDA ARAA, Petitioners, vs. OFFICE OF THE OMBUDSMAN, RICARDO AGON, RAMON VILLASANTA, ELMER DIZON, SALVADOR ADUL, and AGNES FABIAN, Respondents, DECISION CARPIO MORALES, J.: Petitioners Vicente Salumbides, Jr. (Salumbides) and Glenda Araa (Glenda) challenge the October 11, 2007 1 Decision and the December 13, 2007 Resolution of the Court of Appeals in CA-G.R. SP No. 96889 affirming the Office of the Ombudsman's decision finding them guilty of Simple Neglect of Duty. Salumbides and Glenda were appointed in July 2001 as Municipal Legal Officer/Administrator and Municipal Budget Officer, respectively, of Tagkawayan, Quezon. Towards the end of 2001, Mayor Vicente Salumbides III (the mayor) saw the urgent need to construct a two2 classroom building with fence (the projects) for the Tagkawayan Municipal High School (TMHS) since the public school in the poblacion area would no longer admit high school freshmen starting school year 2002-2003. On how to solve the classroom shortage, the mayor consulted Salumbides who suggested that the construction of the twoclassroom building be charged to the account of the Maintenance and Other Operating Expenses/ Repair and Maintenance of Facilities (MOOE/RMF) and implemented "by administration," as had been done in a previous classroom building project of the former mayor. Upon consultation, Glenda advised Salumbides in December 2001, that there were no more available funds that could be taken from the MOOE/RMF, but the savings of the municipal government were adequate to fund the projects. She added, however, that the approval by the Sangguniang Bayan of a proposed supplemental budget must be secured. The members of the Sangguniang Bayan having already gone on recess for the Christmas holidays, Glenda and Salumbides advised the mayor to source the funds from the P1,000,000 MOOE/RMF allocation in the approved 3 Municipal Annual Budget for 2002. The mayor thus ordered on January 8, 2002 Municipal Engineer Jose Aquino (Aquino) to proceed with the construction of the projects based on the program of work and bill of materials he (Aquino) prepared with a total cost estimate of P222,000. Upon advice of Municipal Planning and Development Officer Hernan Jason (Jason), the mayor included the projects in the list of local government projects scheduled for bidding on January 25, 2002 which, together with the January 31, 2002 public bidding, failed. The mayor was to admit later his expectation or assumption of risk on reimbursement:

x x x It was my thinking that even if a bidder emerges and gets these 2 projects which were at the time on-going (although it was also my thinking then that no bidder would possibly bid for these 2 projects as these were costestimated very low-P150,000 for the 2-room school building P72,000 for the fencing) he (bidder) would be reasonable enough to reimburse what I had so far spen[t] for the project. I said "I" because up to the time of the failed 2 biddings I have shouldered the "vale" of the laborers and I requisitioned some materials on credit on my own personal account, and not a single centavo was at the time disbursed by our municipal treasury until all requirements for negotiated purchase of the materials for the project had been accomplished. As a matter of fact,payments for the expenses on 4 these 2 projects have been made only starting 19 March 2002. x x x (underscoring supplied) The construction of the projects commenced without any approved appropriation and ahead of the public bidding. Salumbides was of the opinion that the projects were regular and legal, based on an earlier project that was "implemented in the same manner, using the same source of fund and for the same reason of urgency" which was allowed "because the building was considered merely temporary as the TMHS is set to be transferred to an 8-hectare 5 lot which the municipal government is presently negotiating to buy." Meanwhile, Aquino suggested to the Sangguniang Bayan the adoption of "model guidelines" in the implementation of infrastructure projects to be executed "by administration," while Councilor Coleta Sandro (Coleta) sponsored a Resolution to ratify the projects and to authorize the mayor to enter into a negotiated procurement. Both actions did not merit the approval of the Sangguniang Bayan. On May 13, 2002, herein respondents Ricardo Agon, Ramon Villasanta, Elmer Dizon, Salvador Adul and Agnes Fabian, all members of the Sangguniang Bayan of Tagkawayan, filed with the Office of the Ombudsman a 6 complaint against Salumbides and Glenda (hereafter petitioners), the mayor, Coleta, Jason and Aquino. The administrative aspect of the case, docketed as Case No. OMB-L-A-02-0276-E, charged petitioners et al. with Dishonesty, Grave Misconduct, Gross Neglect of Duty, Conduct Prejudicial to the Best Interest of the Service, and violation of the Commission on Audit (COA) Rules and the Local Government Code. By Order of June 14, 2002, the Office of the Ombudsman, denied the prayer to place petitioners et al. under preventive suspension pending investigation. By Order dated February 1, 2005, approved on April 11, 2005, it denied the motion for reconsideration but dropped the mayor and Coleta, both elective officials, as respondents in the administrative case, the 2004 elections having mooted the case. The parties were thereupon directed to submit their respective verified position papers to which petitioners, Jason and Aquino complied by submitting a consolidated position paper on May 19, 2005. Meanwhile, in response to the subpoena duces tecum issued by the Office of the Ombudsman on February 18, 2005 requiring the regional officer of the COA to submit the post-audit report on the projects, Celerino Alviar, COA State Auditor II claimed by Affidavit of May 23, 2005 that the required documents were among those razed by fire on April 14, 2004 that hit the Office of the Municipal Accountant where they were temporarily stored due to lack of space at the Provincial Auditor's Office.1avvphi1 On October 17, 2005, the Office of the Ombudsman approved the September 9, 2005 Memorandum absolving Jason and Aquino, and finding petitioners guilty of Simple Neglect of Duty, for which they were meted the penalty of suspension from office for a maximum period of six months with a stern warning against a similar repetition. It also 7 approved on November 2, 2006 the March 27, 2006 Order denying the motion for reconsideration. Their recourse to the appellate court having failed, petitioners come before this Court via Rule 45 of the Rules of Court. For non-compliance with the rule on certification against forum shopping, the petition merits outright dismissal. The 8 verification portion of the petition does not carry a certification against forum shopping. The Court has distinguished the effects of non-compliance with the requirement of verification and that of certification against forum shopping. A defective verification shall be treated as an unsigned pleading and thus produces no legal effect, subject to the discretion of the court to allow the deficiency to be remedied, while the failure to certify against forum shopping shall be cause for dismissal without prejudice, unless otherwise provided, and is not curable by 9 amendment of the initiatory pleading. Petitioners' disregard of the rules was not the first. Their motion for extension of time to file petition was previously 10 denied by Resolution of January 15, 2008 for non-compliance with the required showing of competent proof of 11 identity in the Affidavit of Service. The Court, by Resolution of March 4, 2008, later granted their motion for reconsideration with motion to admit appeal (Motion with Appeal) that was filed on February 18, 2008 or the last day of filing within the extended period. 12 Moreover, in their Manifestation/Motion filed a day later, petitioners prayed only for the admission of nineadditional copies of the Motion with Appeal "due to honest inadvertence" in earlier filing an insufficient number of copies. Petitioners were less than candid when they surreptitiously submitted a Motion with Appeal which 13 isdifferent from the first set they had submitted. The second set of Appeal includes specific Assignment of Errors and 14 already contains a certification against forum shopping embedded in the Verification. The two different Verifications 15 were notarized by the same notary public and bear the same date and document number. The rectified verification with certification, however, was filed beyond the reglementary period. Its lapses aside, the petition just the same merits denial.

Petitioners urge this Court to expand the settled doctrine of condonation to cover coterminous appointive officials who were administratively charged along with the reelected official/appointing authority with infractions allegedly committed during their preceding term. The Court rejects petitioners' thesis. 17 More than 60 years ago, the Court in Pascual v. Hon. Provincial Board of Nueva Ecija issued the landmark ruling that prohibits the disciplining of an elective official for a wrongful act committed during his immediately preceding term of office. The Court explained that "[t]he underlying theory is that each term is separate from other terms, and that the reelection to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the 18 right to remove him therefor." The Court should never remove a public officer for acts done prior to his present term of office. To do otherwise would be to deprive the people of their right to elect their officers. When the people elect[e]d a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his faults or misconduct, if he had been guilty of any. It is not for the court, by reason of such faults or misconduct[,] to 19 practically overrule the will of the people. (underscoring supplied) 20 Lizares v. Hechanova, et al. replicated the doctrine. The Court dismissed the petition in that case for being moot, 21 the therein petitioner "having been duly reelected, is no longer amenable to administrative sanctions." 22 23 Ingco v. Sanchez, et al. clarified that the condonation doctrine does not apply to a criminal case. Luciano v. The 24 25 26 Provincial Governor, et al., Olivarez v. Judge Villaluz, and Aguinaldo v. Santos echoed the qualified rule that reelection of a public official does not bar prosecution for crimes committed by him prior thereto. Consistently, the Court has reiterated the doctrine in a string of recent jurisprudence including two cases involving a 27 Senator and a Member of the House of Representatives. 28 29 Salalima v. Guingona, Jr. and Mayor Garcia v. Hon. Mojica reinforced the doctrine. The condonation rule was applied even if the administrative complaint was not filed before the reelection of the public official, and even if the alleged misconduct occurred four days before the elections, respectively. Salalima did not distinguish as to the date of filing of the administrative complaint, as long as the alleged misconduct was committed during the prior term, the precise timing or period of which Garcia did not further distinguish, as long as the wrongdoing that gave rise to the public official's culpability was committed prior to the date of reelection. Petitioners' theory is not novel. 30 A parallel question was involved in Civil Service Commission v. Sojor where the Court found no basis to broaden the scope of the doctrine of condonation: Lastly, We do not agree with respondent's contention that his appointment to the position of president of NORSU, despite the pending administrative cases against him, served as a condonation by the BOR of the alleged acts imputed to him. The doctrine this Court laid down in Salalima v. Guingona, Jr. and Aguinaldo v. Santos are inapplicable to the present circumstances. Respondents in the mentioned cases are elective officials, unlike respondent here who is an appointed official. Indeed, election expresses the sovereign will of the people. Under the principle of vox populi est suprema lex, the re-election of a public official may, indeed, supersede a pending administrative case. The same cannot be said of a re-appointment to a non-career position.There is no sovereign will of the people to speak of when the BOR re-appointed respondent Sojor to the post of university 31 president. (emphasis and underscoring supplied)lawph!l Contrary to petitioners' asseveration, the non-application of the condonation doctrine to appointive officials does not violate the right to equal protection of the law. 32 In the recent case of Quinto v. Commission on Elections, the Court applied the four-fold test in an equal protection 33 challenge against the resign-to-run provision, wherein it discussed the material and substantive distinctions between elective and appointive officials that could well apply to the doctrine of condonation: The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not. Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority. xxxx An election is the embodiment of the popular will, perhaps the purest expression of the sovereign power of the people. It involves the choice or selection of candidates to public office by popular vote. Considering that elected officials are put in office by their constituents for a definite term, x x x complete deference is accorded to the will of the electorate that they be served by such officials until the end of the term for which they were elected. In contrast, there is no such expectation insofar as appointed officials are concerned. (emphasis and underscoring supplied)

16

The electorate's condonation of the previous administrative infractions of the reelected official cannot be extended to that of the reappointed coterminous employees, the underlying basis of the rule being to uphold the will of the people expressed through the ballot. In other words, there is neither subversion of the sovereign will nor disenfranchisement of the electorate to speak of, in the case of reappointed coterminous employees. It is the will of the populace, not the whim of one person who happens to be the appointing authority, that could extinguish an administrative liability. Since petitioners hold appointive positions, they cannot claim the mandate of the electorate. The people cannot be charged with the presumption of full knowledge of the life and character of each and every probable appointee of the elective official ahead of the latter's actual reelection. Moreover, the unwarranted expansion of the Pascual doctrine would set a dangerous precedent as it would, as respondents posit, provide civil servants, particularly local government employees, with blanket immunity from administrative liability that would spawn and breed abuse in the bureaucracy. Asserting want of conspiracy, petitioners implore this Court to sift through the evidence and re-assess the factual findings. This the Court cannot do, for being improper and immaterial. 34 Under Rule 45 of the Rules of Court, only questions of law may be raised, since the Court is not a trier of facts. As a rule, the Court is not to review evidence on record and assess the probative weight thereof. In the present case, the appellate court affirmed the factual findings of the Office of the Ombudsman, which rendered the factual questions beyond the province of the Court. Moreover, as correctly observed by respondents, the lack of conspiracy cannot be appreciated in favor of petitioners who were found guilty of simple neglect of duty, for if they conspired to act negligently, their infraction becomes 35 36 intentional. There can hardly be conspiracy to commit negligence. Simple neglect of duty is defined as the failure to give proper attention to a task expected from an employee resulting 37 from either carelessness or indifference. In the present case, petitioners fell short of the reasonable diligence required of them, for failing to exercise due care and prudence in ascertaining the legal requirements and fiscal soundness of the projects before stamping their imprimatur and giving their advice to their superior. The appellate court correctly ruled that as municipal legal officer, petitioner Salumbides "failed to uphold the law and provide a sound legal assistance and support to the mayor in carrying out the delivery of basic services and provisions of adequate facilities when he advised [the mayor] to proceed with the construction of the subject projects 38 without prior competitive bidding." As pointed out by the Office of the Solicitor General, to absolve Salumbides is tantamount to allowing with impunity the giving of erroneous or illegal advice, when by law he is precisely tasked to 39 advise the mayor on "matters related to upholding the rule of law." Indeed, a legal officer who renders a legal opinion on a course of action without any legal basis becomes no different from a lay person who may approve the same because it appears justified. As regards petitioner Glenda, the appellate court held that the improper use of government funds upon the direction of the mayor and prior advice by the municipal legal officer did not relieve her of liability for willingly cooperating 40 rather than registering her written objection as municipal budget officer. Aside from the lack of competitive bidding, the appellate court, pointing to the improper itemization of the expense, held that the funding for the projects should have been taken from the "capital outlays" that refer to the appropriations for the purchase of goods and services, the benefits of which extend beyond the fiscal year and which add to the assets of the local government unit. It added that current operating expenditures like MOOE/RMF refer to appropriations for the purchase of goods and services for the conduct of normal local government operations within 41 the fiscal year. 42 In Office of the Ombudsman v. Tongson, the Court reminded the therein respondents, who were guilty of simple neglect of duty, that government funds must be disbursed only upon compliance with the requirements provided by law and pertinent rules. Simple neglect of duty is classified as a less grave offense punishable by suspension without pay for one month and one day to six months. Finding no alleged or established circumstance to warrant the imposition of the maximum penalty of six months, the Court finds the imposition of suspension without pay for three months justified. When a public officer takes an oath of office, he or she binds himself or herself to faithfully perform the duties of the office and use reasonable skill and diligence, and to act primarily for the benefit of the public. Thus, in the discharge of duties, a public officer is to use that prudence, caution, and attention which careful persons use in the management 43 of their affairs. Public service requires integrity and discipline. For this reason, public servants must exhibit at all times the highest sense of honesty and dedication to duty. By the very nature of their duties and responsibilities, public officers and employees must faithfully adhere to hold sacred and render inviolate the constitutional principle that a public office is a public trust; and must at all times be accountable to the people, serve them with utmost responsibility, integrity, 44 loyalty and efficiency. WHEREFORE, the assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 96889 areAFFIRMED with MODIFICATION, in that petitioners, Vicente Salumbides, Jr. and Glenda Araa, are suspended from office for three (3) months without pay. SO ORDERED.

LIBERAL PARTY, represented by its President Manuel A. Roxas II and Secretary General Joseph Emilio A. Abaya, Petitioner,

G.R. No. 191771 Present: PUNO, C.J., CARPIO, CORONA, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, and MENDOZA, JJ.

versus -

COMMISSION ON ELECTIONS, NACIONALISTA PARTY, represented by its President Manuel B. Villar and NATIONALIST PEOPLES COALITION, allegedly represented by its Chairman Faustino S. Dy, Jr., Respondents. --

Promulgated: May 6, 2010 x----------------------------------------------------------------------------------------x DECISION

BRION, J.: This case poses to the Court, at this very late stage of our election period, issues involving the registration of political coalitions, the grant of accreditation to the dominant parties under the first time ever automated election system in the country, and validity of the COMELEC en bancs (en banc) authority to act on the registration of political coalitions. [1] The challenged ruling is a Per Curiam Resolution of the Commission on Elections (COMELEC) dated April 12, 2010 in SPP-10-(DM) granting the application for registration of the Nacionalista PartyNationalist Peoples Coalition (NP-NPC or coalition) and deferring the question of the coalitions dominant minority status to a future [2] [3] resolution. The challenge comes from the Liberal Party ( LP) through a petition for certiorari and prohibition with a prayer for the issuance of a preliminary injunction or a status quo order. We issued a status quo order through our Resolution of April 20, 2010. I. THE BACKGROUND FACTS

a.

General Background

On July 14, 2009, the COMELEC promulgated Resolution No. 8646 setting August 17, 2009 as the last day for the filing of petitions for registration of political parties . On January 21, 2010, the COMELEC promulgated Resolution No. 8752, providing, among others, for the rules for the filing of petitions for accreditation for the determination of the dominant majority party, the dominant minority party, ten major national parties, and two major local parties for the May 10, 2010 elections. Resolution No. 8752 also set the deadline for filing of petitions for accreditation on February 12, 2010 and required that accreditation applicants be registered political parties, organizations or coalitions. On February 12, 2010, the LP filed with the COMELEC its petition for accreditation as dominant minority party. On the same date, the Nacionalista Party (NP) and the Nationalist Peoples Coalition (NPC) filed a petition for registration as a coalition (NP-NPC) and asked that it be recognized and accredited as the dominant minority party [4] for purposes of the May 10, 2010 elections. It was docketed as an SPP (DM) case, indicating pursuant to COMELEC Resolution No. 8752 that it was an accreditation case. On February 23, 2010, the LP filed its Opposition
[5]

to the NP-NPCs petition on the following grounds:

1) 2) 3) 4) 5)

The NP-NPCs petition should be denied since it was not a duly registered coalition of political parties at the time of filing of their petition for accreditation as dominant minority party; The COMELEC en banc has no jurisdiction to entertain the petition for registration as a coalition because the petition should have been first brought before the proper Division; The petition for registration as a coalition was filed with the Clerk of the Commission instead of the Law Department in violation of the COMELEC Rules of Procedure; The petition for registration as a coalition was filed beyond the August 17, 2009 deadline set by the COMELEC; and The respective chapters, incumbents and candidates of the NP and the NPC separately cannot be taken into account for purposes of accreditation as dominant minority party because the NP-NPC as a coalition is an entirely different entity.

The COMELEC issued an Order dated February 16, 2010 and a Notice of Hearing on February 17, 2010 setting for hearing the petitions for accreditation for the purpose of determining the dominant majority party, dominant minority party, ten (10) major national parties and two (2) major local parties in connection with the May 10, 2010 elections. Among the petitions set for hearing were the LPs and the NP -NPCs petitions for accreditation as the [6] dominant minority party. On March 9, 2010, the LP presented Rep. Lualhati Antonino (a member of the NPCs National Convention) [7] as its witness. Rep. Antonino testified, among others, that the NPC National Convention did not authorize its [8] National Central Committee to enter into a coalition with the NP, and that neither the National Convention nor the [9] general membership was ever consulted about the merger with the NP. On March 10, 2010, the NP-NPC presented former Gov. Faustino Dy, Jr. as its witness to refute Rep. [10] [11] Antoninos testimony. On March 15, 2010, the LP and the NP-NPC filed their respective Memoranda. b. The Assailed COMELEC Resolution

On April 12, 2010, the en banc granted the NP-NPCs petition for registration as a coalition through the Resolution assailed in the present case. In the same Resolution, the en banc deferred the resolution of the NPNPCs application for accreditation as dominant minority party. On the issue of jurisdiction, the en banc citing Baytan v. Comelec held that the registration of coalitions involves the exercise of its administrative powers and not its quasi-judicial powers; hence, the en banc can directly act on it. It further held that there is no constitutional requirement that a petition for registration of a coalition should be decided first by a division. In Baytan, the Court held that the Constitution merely vests the COMELECs administrative powers in the Commission on Elections, while providing that the COMELEC may sit en banc or in two divisions. Thus, the en banc can act directly on matters falling within its administrative powers. The en banc ruled further that although the NP-NPCs failure to file the petition with the Law Department constituted a violation of the COMELEC Rules of Procedure (COMELEC Rules), the en banc has the discretion to [13] suspend the application of the rules in the interest of justice and speedy disposition of cases; in any case, the authority to approve or deny the Law Departments recommendation on the registration of the coalition rests with the en banc. On the timeliness of the filing of the petition, the en banc held that no rule exists setting a deadline for the registration of coalitions. It opined that the registration of a coalition is simply a recognition by the COMELEC of a political reality. It held that if the NP-NPC is genuine, then the approval of its registration by the COMELEC is a mere recognition of an operative fact. On the merits, the en banc found that both the NP and the NPC have validly agreed to join forces for political or election purposes. It held that the NP-NPC satisfactorily submitted all the documentary requirements to prove the mergers validity. It opined, too, that if the Constitution and By-Laws of either the NP or the NPC was violated by the merger, the representatives or members of either party possess the legal standing to question the coalition; the LP, a stranger to the internal dynamics of both parties, does not have this required standing. The en banc noted that no representative from either the NP or the NPC ever filed any formal opposition to the NP-NPC petition for registration and accreditation. It thus concluded that hardly any controversy existed for it to resolve. At the same time, it disregarded Rep. Antoninos testimony, since she lost her NPC membership when she admitted support for the candidacy of Sen. Manuel A. Roxas II the Liberal Party candidate for vice-president a ground provided under the Constitution
[12]

and By-Laws of the NPC. c. The Sarmiento Dissent Commissioner Rene V. Sarmiento dissented on various grounds. First, he ruled that the COMELEC sitting en banc had no jurisdiction over NP-NPCs petition for registration as a coalition and accreditation as dominant minority party. Rule 32 of the COMELEC Rules governs the registration of coalitions. Rule 32 is found under Letter F of the Rules entitled Special Proceedings. According to Section 3 of the COMELEC Rules, the Commission sitting in two (2) Divisions, shall have jurisdiction to hear and decide cases falling under special proceedings, with the exception of the accreditation of citizens arms of the COMELEC. The dissent concluded that the present petition is within the jurisdiction of the COMELEC sitting in Division and not of the COMELEC sitting en banc, citing Villarosa v. [16] COMELEC. Commissioner Sarmiento secondly took the position that the relaxation of the Rules is inappropriate in the present case. In general, election laws may be divided into three parts for purposes of applying the rules of statutory construction. The first part refers to the provisions for the conduct of elections that election officials are required to follow; these provisions are merely directory. The second part covers those provisions that candidates for office are required to comply with and are necessarily mandatory. The last part embraces those procedural rules designed to ascertain, in case of dispute, the actual winner in the elections; this requires liberal construction. The NP-NPCs petition falls under the second part, so the applicable requirements of law are mandatory. The dissent argued that the relaxation of the rules is not applicable to the present case, because it does not involve the determination of the will of the electorate; thus, the rules governing the registration of coalitions should be construed strictly and not liberally. Commissioner Sarmientos third point is that no valid coalition was formed between the NP and the NPC. He pointed out that the Constitutions and By-Laws of both parties require that the parties respective National Conventions give their approval before their parties can enter into any coalition agreement with another political party. The dissent found that the records are bereft of any proof that the National Conventions of both the NP and the NPC authorized their officers to form the NP-NPC. The dissent held that the action of the Executive Committees of the NP and the NPC in issuing the Joint Resolution (declaring the NP-NPC merger) was a clear violation of the parties Constitutions and By-Laws and was thus ultra vires and void. The dissent also branded the NP-NPC as a sham whose sole purpose was to secure dominant minority party status. The Commissioner noted that members of the NP and NPC are pitted against each other and are vying for the same election positions an absurd situation in a coalition, since no alliance for a common cause can exist if members of the component parties are competing against each other for the same positions. Commissioner Sarmiento pointed out as his last point that the NP-NPC cannot seek accreditation as the dominant minority party without the requisite recognition by the COMELEC. COMELEC Resolution No. 8752 requires that only political parties duly registered with the COMELEC may seek accreditation as a dominant party. At the time the NP-NPC filed its petition for accreditation on February 12, 2010, it was still seeking registration as a coalition of political parties. By filing the petition, both the NP and the NPC admitted that the COMELEC had not extended any recognition to their coalition; without the requisite recognition and registration, the NP-NPC could not seek accreditation as the dominant minority party for the May 10, 2010 elections. The dissent also noted that the NP-NPC could no longer seek accreditation since the deadline for filing a petition for accreditation had lapsed. Finally, while the NP and NPC are both duly accredited political parties, their recognition cannot benefit the NP-NPC, since the latter seeks accreditation as an entity separate and distinct from both the NP and the NPC. II. THE PETITION The LP now assails the April 12, 2010 COMELEC Resolution for having been issued with grave abuse of discretion, as follows: 1) The COMELEC en banc has no jurisdiction at the first instance to entertain petitions for registration of political coalitions;
[15]

[14]

2) 3)

4)

The COMELEC gravely abused its discretion when it allowed the registration of the purported NP-NPC coalition despite the lapse of the deadline for registration; The COMELEC gravely abused its discretion when it allowed the registration of the purported NP-NPC coalition despite patent and manifest violations of the NPC Constitution and By-Laws; and The purported NP-NPC coalition is a bogus, sham and paper coalition that makes a mockery [17] of the electoral process.

In support of its petition, the petitioner attached the Sworn Affidavits of two prominent members of the NPC, namely: Atty. Sixto S. Brillantes (the current NPC Legal Counsel) and Daniel Laogan (a member of the NPCs National Central Committee) to show that the NP-NPC was entered into without consultations; much less, the [18] approval of the NPCs National Convention which was not even convened. a. Comments from the OSG and the COMELEC

On April 27, 2010, the Office of the Solicitor General (OSG) filed a Manifestation and Motion In Lieu of Comment. The OSG manifested that the duty to appear and defend on their behalf and on behalf of the COMELEC falls on the respondents, since they are the real parties interested in upholding the assailed COMELEC Resolution. The COMELEC, as a mere nominal party, does not need to file a separate comment. We responded to the OSGs manifestation by requiring the COMELEC to file its own comment, which it did on May 4, 2010. On the merits, the OSG argues that the present petition is premature. It notes that the petitions real thrust is to foreclose the possibility that respondent NP-NPC would be declared the dominant minority party in the coming May 10, 2010 elections. The OSG emphasizes that the assailed COMELEC Resolution only affirmatively resolved the registration of the NP-NPC, not its accreditation. Thus, the petitions core issue is not yet ripe for adjudication. As expressly indicated in the assailed Resolution, the accreditation has yet to be the subject of a coming separate resolution. The OSG also argues that no violation of due process attended the registration process, since the petitioner was given the opportunity to be heard. The OSG notes that the petitioner filed its Opposition to the NP-NPCs application for registration and accreditation before the COMELEC. In addition, hearings were scheduled and held where the COMELEC allowed the petitioner to submit its evidence, both testimonial and documentary. The COMELECs comment is practically a reiteration of the rulings in the assailed Resolution, heretofore summarized. For this reason, we shall no longer reflect on and repeat the COMELECs positions in detail. b. The NP-NPC Coalitions Comment

In their Comment, the respondents argue that the present petition should be dismissed outright since it is plagued with procedural infirmities. First, the respondents contend that the petitioner violated Section 5(2) of Rule 64 of the Rules of Court which requires that the petition be accompanied by certified true copies of such material portions of the record the petition referred to. The respondents point out that the petitioner failed to attach the required certified true copies of the documents to its petition. Second, the respondents argue that the petitioner unjustifiably failed to implead the NP-NPC as a party to the present case. The respondents contend that NP-NPC is a real party-in-interest, as well as an indispensable party without the participation of which no final determination of the case can be secured. Third, the respondents argue that the present petition raises mere errors of judgment that are not within the Courts authority to act upon under its certiorarijurisdiction, since the present petition merely assails the en bancs appreciation of facts and evidence. On the merits, the respondents aver that the en banc did not commit grave abuse of discretion in granting the registration of the NP-NPC. First, the respondents argue that that the en banc had jurisdiction to entertain their petition for registration of the NP-NPC. The respondents emphasize that the NP-NPCs registration falls within the ambit of the COMELECs administrative powers; hence, the en banc properly assumed jurisdiction over their petition. The respondents cite Baytan v. COMELEC as authority for its position. The Court held in this cited case that the COMELECs administrative powers include the registration of political parties and coalitions under Section 2
[19]

(5) of Article IX of the Constitution. The Court also ruled that since the Constitution merely vests the COMELECs administrative powers in the Commission on Elections while providing that the COMELEC may sit en banc or in two Divisions, the en banccan act directly on matters falling within its administrative powers. Second, the respondents also contend that their petition for registration as a coalition is not time-barred. They argue that the August 17, 2009 deadline applied only to political parties; and to parties, organizations and coalitions under the party-list system. The respondents emphasize that there is no deadline for petitions for the registration of coalition of parties, since COMELEC Resolution No. 8646 has not specifically set a deadline. Thus, they conclude that the August 17, 2009deadline applies only to the registration of new and unregistered political parties, and not to the registration of coalitions between previously registered political parties such as the NP and the NPC. Third, the respondents point out that the NP-NPC was validly formed, and that the requisite approvals were duly obtained. The respondents contend that the en bancs factual findings on the formation of the coalition and the submission and approval of the requisite documents are supported by substantial evidence, and thus are final and binding on this Court. The respondents emphasize that the 1993 Revised Rules of the NP does not require the approval of the National Convention for purposes of coalescing with another political party; neither do the Rules confer on the National Convention the power to approve a coalition with another political party. Similarly, the respondents point out that the NPCs Constitution and By-Laws is silent on and does not confer any power to approve a coalition with another political party. The respondents emphasize that they cannot violate a non-existent requirement; Rep. Antonino in fact affirmed that there is no specific provision in the NPCs Constitution and By -Laws relating to a coalition with another party. The respondents argue that NPC Chairman Dys testimony adequately showed that the NP -NPC was entered into after meetings and consultations with party members and the NPC national organization; in fact, 70%-75% of those consulted supported the coalition. The respondents also aver that it is a common party practice that the NPC National Convention decides through a series of small meetings of leaders and members, whether to arrive at a consensus. The respondents point out that, to date, no member of the NP or NPC has ever expressed his or her objection to the NP-NPC. The respondents emphasize that the wisdom of entering into a coalition is strictly an internal matter; and no third party such as the LP, not even the courts, can interfere. The respondents cite Sinaca v. [20] Mula as authority that political parties are generally free to conduct their internal affairs free from judicial supervision. Fourth, the respondents contend that Commissioner Sarmientos thesis that the coalition is a sham since they are fielding contending candidates is baseless. As explained in the hearings, the NP and NPC agreed on an arbitration procedure to settle these conflicts, although no arbitration has taken place to date, since the registration of the NP-NPC has not attained finality. Fifth, the respondents contend that the newspaper reports presented by the petitioner to show that there was no valid NP-NPC is inadmissible and carries no probative value for being hearsay. The respondents further argue that the affidavits of Atty. Sixto Brillantes and Daniel Laogan, attached to the present petition, are inadmissible as the Court cannot receive evidence or conduct a trial de novo under its certiorari jurisdiction. In addition, the respondents argue that the affidavits are hearsay evidence, since Atty. Brillantes and Daniel Laogan were never presented during the hearings before the en banc and were not subjected to cross-examination. Finally, the respondents point out that the subject matter of Atty. Brillantes affidavit is covered by the attorney -client privilege; he was the NPCs general counsel who represented the NPC in all legal proceedings. III. THE ISSUES The parties positions raise the following issues for resolution: 1. Preliminary Issues:

a. Should the petition be dismissed outright for procedural and technical infirmities? b. Is the present petition premature since its object is to foreclose a ruling on the unsettled NP-NPC issue? c. Is the NP-NPC petition before the COMELEC, viewed as a petition for registration, time-barred? i. Is the NP-NPC an operative fact that the COMELEC simply has to note and recognize without need of registration? 2. Does the en banc have jurisdiction at the first instance to entertain the petition?

3. On the merits and assuming that the en banc has jurisdiction, did it gravely abuse its discretion when it allowed the registration of the NP-NPC? a. Was due process observed in granting the registration? b. Did the coalition take place as required by law: i. in terms of compliance with internal rules of the NP and the NPC? ii. in terms of the consent to or support for, and the lack of objection to, the coalition? IV. THE COURTS RULING

We find the petition meritorious.

a.

Preliminary Considerations

1.

The technical and procedural questions

We have indicated many times in the past that a primary factor in considering technical and procedural objections is the nature of the issues involved. We have been strict when the issues are solely confined to the [21] parties private interests and carry no massive ripple effects directly affecting the public, but have viewed with [22] liberality the technical and procedural threshold issues raised when grave public interests are involved. Our liberality has even gone beyond the purely technical and procedural where Court intervention has become [23] [24] [25] imperative. Thus, we have recognized exceptions to the threshold issues of ripeness and mootness of the [26] petitions before us, as well as questions on locus standi. We have also brushed aside procedural technicalities where the issues raised, because of the paramount public interest involved and their gravity, novelty or weight as [27] precedents deserve the Courts attention and active intervention. We see every reason to be liberal in the present case in view of interests involved which are indisputably important to the coming electoral exercise now fast approaching. The registration of political parties, their accreditation as dominant parties, and the benefits these recognitions provide particularly, the on-line real time electronic transmission of election results from the Board of Election Inspectors ( BEI) through the Precinct Count Optical Scan (PCOS) machines; the immediate access to official election results; the per diems from the government that watchers of accredited parties enjoy; and the representation at the printing, storage and distribution of ballots that the dominant-party status brings constitute distinct advantages to any party and its candidates, if only in terms of [28] the ready information enabling them to react faster to developing situations. The value of these advantages exponentially rises in an election under an automated system whose effectiveness and reliability, even at this late stage, are question marks to some. To the public, the proper registration and the accreditation of dominant parties are evidence of equitable party representation at the scene of electoral action, and translate in no small measure to transparency and to the elections credibility. Thus, our focus is on the core issues that confront us and the parties, by-passing the technical and procedural questions raised that do not anyway affect the integrity of the petition before us or prejudice the parties involved, and concentrating as well on the issues that would resolve the case soonest so that the parties involved and the COMELEC can move on to their assigned time-sensitive roles and tasks in the coming elections. We note that while the respondents placed in issue defects in the attachments to the petition, their objection is a formal one as they do not deny the existence and basic correctness of these attachments. We see no resulting harm or prejudice therefore if we overrule the objection raised, given the weight of the counterbalancing [29] factors we considered above. We do not likewise find the failure to formally implead the NP-NPC a sufficient reason to dismiss the petition outright. Without any finally confirmed registration in the coalitions favor, NP -NPC does not legally exist as a coalition with a personality separate and distinct from the component NP and NPC parties. We find it sufficient that the NP and the NPC have separately been impleaded; as of the moment, they are the real parties-in-interest as they are the parties truly interested in legally establishing the existence of their coalition. Again, we find no resulting harm or prejudice in the omission to implead NP-NPC, as the component parties have voiced out the concerns the coalition would have raised had it been impleaded as a separate and properly existing personality. The respondents next argue that the petitions cited grounds are mere errors of law and do not constitute grave abuse of discretion amounting to lack or excess of jurisdiction. This objection can be read as a facial objection to the petition or as a substantive one that goes into the merits of the petition. We will discuss under the

present topic the facial objection, as it is a threshold issue that determines whether we shall proceed to consider the case or simply dismiss the petition outright. A facial objection is meritorious if, expressly and on the face of the petition, what is evident as cited grounds are erroneous applications of the law rather than grave abuse of discretion amounting to lack or excess of jurisdiction. After due consideration, we conclude that the petition passes the facial objection test. In Madrigal Transport, Inc. v. Lapanday Holdings Corporation , the Court, through former Chief Justice Artemio V. Panganiban, gave a very succinct exposition of grave abuse of discretion amounting to lack or excess of jurisdiction in relation to errors of law. The Court then said: A writ of certiorari may be issued only for the correction of errors of jurisdiction or grave abuse of discretion amounting to lack or excess of jurisdiction. The writ cannot be used for any other purpose, as its function is limited to keeping the inferior court within the bounds of its jurisdiction. xxxx Without jurisdiction means that the court acted with absolute lack of authority. There is excess of jurisdiction when the court transcends its power or acts without any statutory authority. Grave abuse of discretion implies such capricious and whimsical exercise of judgment as to be equivalent to lack or excess of jurisdiction; in other words, power is exercised in an arbitrary or despotic manner by reason of passion, prejudice, or personal hostility; and such exercise is so patent or so gross as to amount to an evasion of a positive duty or to a virtual refusal either to perform the duty enjoined or to act at all in contemplation of law. Between an appeal and a petition for certiorari, there are substantial distinctions which shall be explained below. As to the Purpose. Certiorari is a remedy designed for the correction of errors of jurisdiction, not errors of judgment. In Pure Foods Corporation v. NLRC, we explained the simple reason for the rule in this light: When a court exercises its jurisdiction, an error committed while so engaged does not deprive it of the jurisdiction being exercised when the error is committed. If it did, every error committed by a court would deprive it of its jurisdiction and every erroneous judgment would be a void judgment. This cannot be allowed. The administration of justice would not survive such a rule. Consequently, an error of judgment that the court may commit in the exercise of its jurisdiction is not correct[a]ble through the original civil action of certiorari. The supervisory jurisdiction of a court over the issuance of a writ of certiorari cannot be exercised for the purpose of reviewing the intrinsic correctness of a judgment of the lower court on the basis either of the law or the facts of the case, or of the wisdom or legal soundness of the decision. Even if the findings of the court are incorrect, as long as it has jurisdiction over the case, such correction is normally beyond the province of certiorari. Where the error is not one of jurisdiction, but of an error of law or fact a mistake of judgment appeal is the remedy. [Emphasis supplied.] The most obvious ground cited in the petition that, if properly established, would constitute grave abuse of discretion is the alleged unwarranted action of the en banc in acting on the registration of the NP-NPC when the COMELECs own Rules of Procedure provides that registration is under the jurisdiction of the Division at the first instance. This alleged error is more than an error of law. If this cited ground is correct, then the en banc acted [31] without legal authority and thereby committed a jurisdictional transgression; its action, being ultra vires, would be a nullity. Another allegation of an ultra vires act is that the COMELEC, by appropriate resolution, ordered that August 17, 2009 be the cut-off date for the registration of parties, and yet approved the registration of NP-NPC long after this cut-off date had passed without any valid justification or reason for suspending the rule. For the en banc to so act was not a mere error of law. The grant of registration was an act outside mandatory legal parameters and was therefore done when the COMELEC no longer had the authority to act on it. In this sense, it is a proper allegation of grave abuse of discretion under Rule 64 of the Rules of Court.
[30]

In our view, these jurisdictional challenges to the en banc Resolution, if established, constitute ultra vires acts that would render the Resolution void. b. Prematurity

Is the present petition premature, since its object is to foreclose a ruling on the unsettled NP-NPC accreditation issue? This is another threshold issue, raised this time by the OSG, and we rule that the OSGs objection has no merit. The root of the present petition is the NP-NPC petition before the COMELEC for registration as a coalition and accreditation as the dominant minority party. While the en banc claimed that it had jurisdiction over the registration of coalitions and in fact decreed the NP-NPCs registration, it strangely did not rule on the accreditation aspect of the petition. The registration of a coalition and the accreditation of a dominant minority party are two separate matters that are substantively distinct from each other. Registration is the act that bestows juridical personality for purposes [32] of our election laws; accreditation, on the other hand, relates to the privileged participation that our election laws [33] grant to qualified registered parties. Section 2(5), Article IX-C of the Constitution and Rule 32 of the COMELEC Rules regulate the registration of political parties, organizations or coalitions of political parties. Accreditation as a dominant party is governed by COMELEC Resolution No. 8752, Section 1 of which states that the petition for accreditation shall be filed with the Clerk of the Commission who shall docket it as an SPP (DM) case, in the manner that the NP-NPC petition before the COMELEC was docketed. While the registration of political parties is a special proceeding clearly assigned to a [34] Division for handling under the COMELEC Rules, no similar clear-cut rule is available for a petition for accreditation as a dominant party. We thus make no statement on this point, as it is not a matter in issue. Under the circumstances of the present case where the registration was handled at the en banc, action at the COMELEC ended upon the en bancs issuance of the assailed Resolution; under Rule 13, Section 1(d) of the COMELEC Rules, a motion for reconsideration of an en banc ruling is a prohibited pleading, except in election offense cases. Any request for accreditation that may be filed is conceptually a separate matter for the COMELEC to handle. Thus, after the en banc issued the assailed Resolution resolving the NP-NPCs application for registration as a coalition, the COMELECs part in the registration process was brought to a close, rendering the Resolution ripe for review by this Court. The present petition has openly stated its objective of forestalling the accreditation of the respondent NPNPC; the petition expressly and frontally sought the issuance of a writ of prohibition and restraining order to prevent the COMELEC from accrediting a coalition that is not registered as a party . The combination of a petition for certiorari and for prohibition under the circumstances of the present case is fully justified, as the registration and the accreditation that the petition covers are linked with and in fact sequentially follow one another. Accreditation can only be granted to a registered political party, organization or coalition; stated otherwise, a registration must first take place before a request for accreditation can be made. Once registration has been carried out, accreditation is the next natural step to follow. Where the registration is flawed for having been attended by grave abuse of discretion, as alleged in the petition, the filing of a petition for prohibition with a prayer for a preliminary injunction can only be expected as a logical remedial move; otherwise, accreditation, unless restrained, will follow. Thus, from the point of view of prohibition, there is absolutely no prematurity as its avowed intent is in fact to forestall an event the accreditation that according to the assailed Resolution shall soon take place. From the point of view of the petition for certiorari questioning the registration made, no prematurity issue is involved as the nullification of a past and accomplished act is prayed for. From these perspectives, the OSG objection based on prematurity is shown to be completely groundless. c. Timeliness

Is the NP-NPC petition before the COMELEC, viewed as a petition for registration, time-barred? This issue, raised by the petitioner, strikes at the heart of the petition that the assailed COMELEC Resolution passed upon, and that the divided en banc decided in the NP-NPCs favor.

Our short answer to the question posed is: yes, the NP-NPCs petition for registration as a coalition is time-barred. Thus, the en banc was wrong in ordering the out-of-time registration of the NP-NPC coalition. Admittedly, Resolution No. 8646 simply states that August 17, 2009 is the [L]ast day for filing petitions for registration of political parties, without mentioning organizations and coalitions in the way that the three entities are separately mentioned under Section 2(5), Article IX-C of the Constitution and Rule 32, Section 1 of the COMELEC Rules. Resolution No. 8646, however, is simply a listing of electoral activities and deadlines for the May 10, 2010 elections; it is not in any way a resolution aimed at establishing distinctions among political parties, organizations, and coalitions. In the absence of any note, explanation or reason why the deadline only mentions political parties, the term political parties should be understood in its generic sense that covers political organizations and political coalitions as well. To rule otherwise is to introduce, through a COMELEC deadline-setting resolution, a meaning or intent into Section 2(5), Article IX-C, which was not clearly intended by the Constitution or by the COMELEC Rules; Resolution No. 8646 would effectively differentiate between political parties, on the one hand, and political organizations and coalitions, on the other. In fact, no substantial distinction exists among these entities germane to the act of registration that would justify creating distinctions among them in terms of deadlines. Such distinctions in the deadlines for the registration of political organizations and coalitions, if allowed, may even wreak havoc on the procedural orderliness of elections by allowing these registrations to introduce late and confusing signals to the electorate, not to mention their possible adverse effects on election systems and procedures. This, the en banc very well knows, and their lack of unanimity on the disputed point of timeliness shows how unusual the majoritys reading has been. The en bancs failure to follow its own rules on deadlines may, at first blush, be a negligible error that does not affect its jurisdiction (assuming for the sake of argument that the en banc has the authority to act at the first instance). An examination of Resolution No. 8646, however, shows that the deadline for registration cannot but be a firm and mandatory deadline that the COMELEC has set. We note in this regard that the registration of parties is the first in a list of election-related activities that peaks in the voting on May 10, 2010. This list takes into account the close step-by-step procedure the COMELEC has to undertake in implementing the automated election system ( AES). We note, too, that a closely related activity is the holding of political conventions to select and nominate official party candidates for all election positions, [35] scheduled on October 21, 2009, and November 20, 2009 was the deadline for the filing of the certificates of candidacy for all elective positions an undertaking that required the candidates manifestation of their official party affiliation. There is also a host of election activities in which officially registered parties have to participate, principally: [36] the examination and testing of equipment or devices for the AES and the opening of source codes for review; the [37] nomination of official watchers; and the printing, storage and distribution of official ballots wherein accredited [38] political parties may assign watchers. Of course, registered political parties have very significant participation on election day, during the voting and thereafter; the COMELEC needs to receive advance information and make arrangements on which ones are the registered political parties, organizations and coalitions. All these are related to show that the COMELEC deadline cannot but be mandatory; the whole electoral exercise may fail or at least suffer disruptions, if the deadlines are not observed. For this reason, the COMELEC has in the past in fact rejected applications for registration for having been filed out of time. A case in point is the [39] application of the political party Philippine Guardians Brotherhood, Inc., where the COMELEC denied the plea for [40] registration for having been filed out of time, among other grounds. Philippine Guardians Brotherhood might not have been the only political party whose application for registration was denied at the COMELEC level for late filing. We are sure that all these other organizations would now cry foul and rightly so because of the denial of their applications on the ground of late filing, when the NP-NPC has been made an exception without rhyme or reason. Given the mandatory nature of the deadline, subject only to a systemic change (as contrasted to an ad hoc change or a suspension of the deadline in favor of a party in the course of application), the en banc acted in excess of its jurisdiction when it granted the registration of NP-NPC as a coalition beyond the deadline the COMELEC itself had set; the authority to register political parties under mandatory terms is only up to the deadline. Effectively, the mandatory deadline is a jurisdictional matter that should have been satisfied and was not. Where conditions that authorize the exercise of a general power are wanting, fatal excess of jurisdiction [41] results. Separately from the above consideration, we view the en bancs position that the deadline for registration is only for political parties and not for organizations and coalitions to be preposterous, given the importance of the

participation of political parties in the election process and the rigid schedules that have to be observed in order to implement automated elections as efficiently and as harmoniously as possible. We note that the COMELEC has not even bothered to explain why it imposed a deadline applicable only to political parties, but not to political organizations and coalitions. In our view, this kind of ruling was patently unreasonable, made as it was without basis in law, in fact or in reason; and was a grave abuse of discretion that fatally afflicted the assailed [42] COMELEC Resolution. 1. The Operative Fact Issue

Other than the matter of timeliness which is an open-and-shut consideration under the clear deadline imposed, the more important issue is raised by the statement in the assailed Resolution that the coalition was an operative fact that the en banc could note and thereafter recognize, thereby implying that coalitions of political parties may not need any separate registration if the component parties are already registered. Whether one party would coalesce or work together in partnership, or in close collaboration with another party for purposes of an electoral exercise, is a matter that the law as a rule does not and cannot regulate. This is a part of the freedom of choice derived from the freedom of individuals constituting the political parties to choose their [43] [44] elected leaders, as well as from the concepts of democracy and sovereignty enshrined in our Constitution. This [45] is a freedom, too, that cannot but be rel ated to individuals associational rights under the Bill of Rights. We mention this freedom, as it was apparently the basis for the operative fact that the a ssailed COMELEC Resolution spoke of. In effect, the assailed Resolution implied that registered political parties are well within their right to coalesce; and that this coalition, once proven, should already bind the COMELEC, rendering registration a mere recognition of an operative fact, i.e., a mere ministerial formality. We categorically reject this COMELEC position and its implication; the freedom to coalesce or to work together in an election to secure the vote for chosen candidates is different from the formal recognition the Constitution requires for a political party, organization or coalition to be entitled to full and meaningful participation in the elections and to the benefits that proceed from formal recognition. Registration and the formal recognition that accompanies it are required, as the words of the Constitution themselves show, because of the Constitutions concern about the character of the organizations officially participating in the elections. Thus, the Constitution specifies religious and ideological limitations, and in clear terms bars alien participation and influence in our elections. This constitutional concern, among others, serves as a reason why registration is not simply a checklist exercise, but one that requires the exercise of profound discretion and quasi-judicial adjudication by the [46] COMELEC. Registration must be undertaken, too, under the strict formalities of the law, including the time limits and deadlines set by the proper authorities. Explained in these terms, it is easy to discern why the operative fact that the assailed Resolution speaks of cannot simply be equated with the formal requirement of registration, and why this process should be handled in all seriousness by the COMELEC. To carry this statement further, the Constitution itself has spoken on the matter of registration and the applicable processes and standards; there can be no dispute about the wisdom, propriety, reasonableness or advisability of the constitutional provision and the standards and processes it imposed. Only the people as a sovereign can dwell on these matters in their consideration of the Constitution in a properly called political exercise. In this sense, the question of whether a coalition of registered parties still needs to be registered is a non-issue for being beyond the power of this Court to resolve; this Court can only rule that the Constitution has set the norms and procedures for registration, and these have to be followed. To sum up, political coalitions need to register in accordance with the established norms and procedures, if they are to be recognized as such and be given the benefits accorded by law to registered coalitions. Registered political parties carry a different legal personality from that of the coalition they may wish to establish with other similarly registered parties. If they want to coalesce with one another without the formal registration of their coalition, they can do so on their own in the exercise of their and their members democratic freedom of choice, but they cannot receive official recognition for their coalition. Or they can choose to secure the registration of their coalition in order to be accorded the privileges accruing to registered coalitions, including the right to be accredited as a dominant majority or minority party. There are no ifs and buts about these constitutional terms. 2. The Jurisdictional and Other Questions Raised

Aside from the threshold and timeliness questions we have extensively discussed, this case raises other important questions as well that, without the time constraints the coming elections impose on us, would have been fertile areas for discussion in exploring the limits and parameters of COMELEC authority on the registration of coalitions. These questions, however, are not for us to answer now, given our time constraints and the decisive

impact on the present case of our ruling on timeliness. Thus, we reserve for another case and another time the answers to these no less important questions. We solely rule for now that the en banc gravely abused its discretion when it disregarded its own deadline in ruling on the registration of the NP-NPC as a coalition. In so ruling, we emphasize that the matter of party registration raises critical election concerns that should be handled with discretion commensurate with the importance of elections to our democratic system. The COMELEC should be at its most strict in implementing and complying with the standards and procedures the Constitution and our laws impose. In light of the time constraints facing the COMELEC and the parties as the election is no more than a week away, we find it compelling to declare this Decision immediately executory. WHEREFORE, premises considered, we hereby GRANT the petition and, accordingly, NULLIFY and SET ASIDE the Resolution of the Commission on Elections dated April 12, 2010 in the application for registration of the Nacionalista Party-Nationalist Peoples Coalition as a political coalition, docketed as SPP -10-(DM). The Commission on Elections is DECLARED BARRED from granting accreditation to the proposed NP-NPC Coalition in the May 10, 2010 elections for lack of the requisite registration as a political coalition. This Decision is declared immediately executory. No costs. SO ORDERED. G.R. No. 180443 LUIS K. LOKIN, JR., Petitioner, vs. COMMISSION ON ELECTIONS (COMELEC), EMMANUEL JOEL J. VILLANUEVA, CINCHONA C. GONZALES and ARMI JANE R. BORJE, Respondents. DECISION BERSAMIN, J.: The principal question posed in these consolidated special civil actions for certiorari and mandamus is whether the Commission on Elections (COMELEC) can issue implementing rules and regulations (IRRs) that provide a ground for 1 the substitution of a party-list nominee not written in Republic Act (R.A.) No. 7941, otherwise known as the Party-List System Act, the law that the COMELEC thereby implements. Common Antecedents The Citizens Battle Against Corruption (CIBAC) was one of the organized groups duly registered under the party -list system of representation that manifested their intent to participate in the May 14, 2007 synchronized national and 2 local elections. Together with its manifestation of intent to participate, CIBAC, through its president, Emmanuel Joel J. Villanueva, submitted a list of five nominees from which its representatives would be chosen should CIBAC obtain the required number of qualifying votes. The nominees, in the order that their names appeared in the certificate of 3 nomination dated March 29, 2007, were: (1) Emmanuel Joel J. Villanueva; (2) herein petitioner Luis K. Lokin, Jr.; (3) Cinchona C. Cruz-Gonzales; (4) Sherwin Tugna; and (5) Emil L. Galang. The nominees certificates of acceptance were attached to the certificate of nomination filed by CIBAC. The list of nominees was later published in two 4 5 newspapers of general circulation, The Philippine Star News (sic) and The Philippine Daily Inquirer. Prior to the elections, however, CIBAC, still through Villanueva, filed a certificate of nomination, substitution and 6 amendment of the list of nominees dated May 7, 2007, whereby it withdrew the nominations of Lokin, Tugna and Galang and substituted Armi Jane R. Borje as one of the nominees. The amended list of nominees of CIBAC thus included: (1) Villanueva, (2) Cruz-Gonzales, and (3) Borje. Following the close of the polls, or on June 20, 2007, Villanueva sent a letter to COMELEC Chairperson Benjamin 7 Abalos, transmitting therewith the signed petitions of more than 81% of the CIBAC members, in order to confirm the withdrawal of the nomination of Lokin, Tugna and Galang and the substitution of Borje. In their petitions, the members of CIBAC averred that Lokin and Tugna were not among the nominees presented and proclaimed by CIBAC in its proclamation rally held in May 2007; and that Galang had signified his desire to focus on his family life. On June 26, 2007, CIBAC, supposedly through its counsel, filed with the COMELEC en banc sitting as the National 8 Board of Canvassers a motion seeking the proclamation of Lokin as its second nominee. The right of CIBAC to a second seat as well as the right of Lokin to be thus proclaimed were purportedly based on Party-List Canvass Report No. 26, which showed CIBAC to have garnered a grand total of 744,674 votes. Using all relevant formulas, the motion asserted that CIBAC was clearly entitled to a second seat and Lokin to a proclamation. The motion was opposed by Villanueva and Cruz-Gonzales. Notwithstanding Villanuevas filing of the certificate of nomination, substitution and amendment of the list of nominees and the petitions of more than 81% of CIBAC members, the COMELEC failed to act on the matter, prompting Villanueva to file a petition to confirm the certificate of nomination, substitution and amendment of the list of nominees 9 of CIBAC on June 28, 2007.

On July 6, 2007, the COMELEC issued Resolution No. 8219, whereby it resolved to set the matter pertaining to the validity of the withdrawal of the nominations of Lokin, Tugna and Galang and the substitution of Borje for proper disposition and hearing. The case was docketed as E.M. No. 07-054. In the meantime, the COMELEC en banc, sitting as the National Board of Canvassers, issued National Board of 11 Canvassers (NBC) Resolution No. 07-60 dated July 9, 2007 to partially proclaim the following parties, organizations and coalitions participating under the Party-List System as having won in the May 14, 2007 elections, namely: Buhay Hayaan Yumabong, Bayan Muna, CIBAC, Gabriela Women's Party, Association of Philippine Electric Cooperatives, Advocacy for Teacher Empowerment Through Action, Cooperation and Harmony Towards Educational Reforms, Inc., Akbayan! Citizen's Action Party, Alagad, Luzon Farmers Party, Cooperative-Natco Network Party, Anak Pawis, Alliance of Rural Concerns and Abono; and to defer the proclamation of the nominees of the parties, organizations and coalitions with pending disputes until final resolution of their respective cases. 12 The COMELEC en banc issued another resolution, NBC Resolution No. 07-72 dated July 18, 2007, proclaiming Buhay Hayaan Yumabong as entitled to 2 additional seats and Bayan Muna, CIBAC, Gabriela Women's Party, and Association of Philippine Electric Cooperatives to an additional seat each; and holding in abeyance the proclamation of the nominees of said parties, organizations and coalitions with pending disputes until the final resolution of their respective cases. With the formal declaration that CIBAC was entitled to an additional seat, Ricardo de los Santos, purportedly as secretary general of CIBAC, informed Roberto P. Nazareno, Secretary General of the House of Representatives, of the promulgation of NBC Resolution No. 07-72 and requested that Lokin be formally sworn in by Speaker Jose de Venecia, Jr. to enable him to assume office. Nazareno replied, however, that the request of Delos Santos could not be granted because COMELEC Law Director Alioden D. Dalaig had notified him of the pendency of E.M. 07-054. 13 On September 14, 2007, the COMELEC en banc resolved E.M. No. 07-054 thuswise: WHEREFORE, considering the above discussion, the Commission hereby approves the withdrawal of the nomination of Atty. Luis K. Lokin, Sherwin N. Tugna and Emil Galang as second, third and fourth nominees respectively and the substitution thereby with Atty. Cinchona C. Cruz-Gonzales as second nominee and Atty. Armi Jane R. Borje as third nominee for the party list CIBAC. The new order of CIBAC's nominees therefore shall be: 1. Emmanuel Joel J. Villanueva 2. Cinchona C. Cruz-Gonzales 3. Armi Jane R. Borje SO ORDERED. The COMELEC en banc explained that the actions of Villanueva in his capacity as the president of CIBAC were presumed to be within the scope of his authority as such; that the president was charged by Section 1 of Article IV of the CIBAC By-Laws to oversee and direct the corporate activities, which included the act of submitting the party's manifestation of intent to participate in the May 14, 2007 elections as well as its certificate of nominees; that from all indications, Villanueva as the president of CIBAC had always been provided the leeway to act as the party's representative and that his actions had always been considered as valid; that the act of withdrawal, although done without any written Board approval, was accomplished with the Boards acquiescence or at least understanding; and that the intent of the party should be given paramount consideration in the selection of the nominees. 14 As a result, the COMELEC en banc proclaimed Cruz-Gonzales as the official second nominee of CIBAC. CruzGonzales took her oath of office 15 as a Party-List Representative of CIBAC on September 17, 2007. Precs of the Consolidated Cases In G.R. No. 179431 and G.R. No. 179432, Lokin seeks through mandamus to compel respondent COMELEC to proclaim him as the official second nominee of CIBAC. 16 In G.R. No. 180443, Lokin assails Section 13 of Resolution No. 7804 promulgated on January 12, 2007; and the resolution dated September 14, 2007 issued in E.M. No. 07-054 (approving CIBACs withdrawal of the nominations of Lokin, Tugna and Galang as CIBACs second, third and fourth nominees, respectively, and the substitution by Cruz Gonzales and Borje in their stead, based on the right of CIBAC to change its nominees under Section 13 of 17 Resolution No. 7804). He alleges that Section 13 of Resolution No. 7804 expanded Section 8 of R.A. No. 18 7941. the law that the COMELEC seeks to thereby implement. In its comment, the COMELEC asserts that a petition for certiorari is an inappropriate recourse in law due to the proclamation of Cruz-Gonzales as Representative and her assumption of that office; that Lokins proper recourse was an electoral protest filed in the House of Representatives Electoral Tribunal (HRET); and that, therefore, the Court has no jurisdiction over the matter being raised by Lokin. For its part, CIBAC posits that Lokin is guilty of forum shopping for filing a petition for mandamus and a petition for certiorari, considering that both petitions ultimately seek to have him proclaimed as the second nominee of CIBAC. Issues The issues are the following: (a) Whether or not the Court has jurisdiction over the controversy; (b) Whether or not Lokin is guilty of forum shopping; (c) Whether or not Section 13 of Resolution No. 7804 is unconstitutional and violates the Party-List System Act; and

10

(d) Whether or not the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in approving the withdrawal of the nominees of CIBAC and allowing the amendment of the list of nominees of CIBAC without any basis in fact or law and after the close of the polls, and in ruling on matters that were intra-corporate in nature. Ruling The petitions are granted. A The Court has jurisdiction over the case The COMELEC posits that once the proclamation of the winning party-list organization has been done and its nominee has assumed office, any question relating to the election, returns and qualifications of the candidates to the House of Representatives falls under the jurisdiction of the HRET pursuant to Section 17, Article VI of the 1987 Constitution. Thus, Lokin should raise the question he poses herein either in an election protest or in a special civil action for quo warranto in the HRET, not in a special civil action for certiorari in this Court. We do not agree. An election protest proposes to oust the winning candidate from office. It is strictly a contest between the defeated and the winning candidates, based on the grounds of electoral frauds and irregularities, to determine who between them has actually obtained the majority of the legal votes cast and is entitled to hold the office. It can only be filed by a candidate who has duly filed a certificate of candidacy and has been voted for in the preceding elections. A special civil action for quo warranto refers to questions of disloyalty to the State, or of ineligibility of the winning candidate. The objective of the action is to unseat the ineligible person from the office, but not to install the petitioner in his place. Any voter may initiate the action, which is, strictly speaking, not a contest where the parties strive for supremacy because the petitioner will not be seated even if the respondent may be unseated. The controversy involving Lokin is neither an election protest nor an action for quo warranto, for it concerns a very peculiar situation in which Lokin is seeking to be seated as the second nominee of CIBAC. Although an election protest may properly be available to one party-list organization seeking to unseat another party-list organization to determine which between the defeated and the winning party-list organizations actually obtained the majority of the legal votes, Lokins case is not one in which a nominee of a particular party -list organization thereby wants to unseat another nominee of the same party-list organization. Neither does an action for quo warranto lie, considering that the case does not involve the ineligibility and disloyalty of Cruz-Gonzales to the Republic of the Philippines, or some other cause of disqualification for her. Lokin has correctly brought this special civil action for certiorari against the COMELEC to seek the review of the September 14, 2007 resolution of the COMELEC in accordance with Section 7 of Article IX-A of the 1987 Constitution, notwithstanding the oath and assumption of office by Cruz-Gonzales. The constitutional mandate is now implemented by Rule 64 of the 1997 Rules of Civil Procedure, which provides for the review of the judgments, final orders or resolutions of the COMELEC and the Commission on Audit. As Rule 64 states, the mode of review is by a petition for certiorari in accordance with Rule 65 to be filed in the Supreme Court within a limited period of 30 days. Undoubtedly, the Court has original and exclusive jurisdiction over Lok ins petitions for certiorari and for mandamus against the COMELEC. B Petitioner is not guilty of forum shopping Forum shopping consists of the filing of multiple suits involving the same parties for the same cause of action, either simultaneously or successively, for the purpose of obtaining a favorable judgment. Thus, forum shopping may arise: (a) whenever as a result of an adverse decision in one forum, a party seeks a favorable decision (other than by appeal or certiorari) in another; or (b) if, after having filed a petition in the Supreme Court, a party files another petition in the Court of Appeals, because he thereby deliberately splits appeals "in the hope that even as one case in which a particular remedy is sought is dismissed, another case (offering a similar remedy) would still be open"; or (c) where a 19 party attempts to obtain a writ of preliminary injunction from a court after failing to obtain the writ from another court. What is truly important to consider in determining whether forum shopping exists or not is the vexation caused to the courts and the litigants by a party who accesses different courts and administrative agencies to rule on the same or related causes or to grant the same or substantially the same reliefs, in the process creating the possibility of 20 conflicting decisions being rendered by the different fora upon the same issue. The filing of identical petitions in different courts is prohibited, because such act constitutes forum shopping, a malpractice that is proscribed and condemned as trifling with the courts and as abusing their processes. Forum 21 shopping is an improper conduct that degrades the administration of justice. Nonetheless, the mere filing of several cases based on the same incident does not necessarily constitute forum shopping. The test is whether the several actions filed involve the same transactions and the same essential facts 22 23 and circumstances. The actions must also raise identical causes of action, subject matter, and issues. Elsewise stated, forum shopping exists where the elements of litis pendentia are present, or where a final judgment in one 24 case will amount to res judicata in the other. Lokin has filed the petition for mandamus to compel the COMELEC to proclaim him as the second nominee of CIBAC upon the issuance of NBC Resolution No. 07-72 (announcing CIBACs entitlement to an additional seat in the House of Representatives), and to strike down the provision in NBC Resolution No. 07-60 and NBC Resolution No. 07-72

holding in abeyance "all proclamation of the nominees of concerned parties, organizations and coalitions with pending disputes shall likewise be held in abeyance until final resolution of their respective cases." He has insisted that the COMELEC had the ministerial duty to proclaim him due to his being CIBACs second nominee; and that the COMELEC had no authority to exercise discretion and to suspend or defer the proclamation of winning party-list organizations with pending disputes. On the other hand, Lokin has resorted to the petition for certiorari to assail the September 14, 2007 resolution of the COMELEC (approving the withdrawal of the nomination of Lokin, Tugna and Galang and the substitution by CruzGonzales as the second nominee and Borje as the third nominee); and to challenge the validity of Section 13 of Resolution No. 7804, the COMELECs basis for allowing CIBACs withdrawal of Lokins nomination. Applying the test for forum shopping, the consecutive filing of the action for certiorari and the action for mandamus did not violate the rule against forum shopping even if the actions involved the same parties, because they were based on different causes of action and the reliefs they sought were different. C Invalidity of Section 13 of Resolution No. 7804 The legislative power of the Government is vested exclusively in the Legislature in accordance with the doctrine of separation of powers. As a general rule, the Legislature cannot surrender or abdicate its legislative power, for doing so will be unconstitutional. Although the power to make laws cannot be delegated by the Legislature to any other 25 authority, a power that is not legislative in character may be delegated. Under certain circumstances, the Legislature can delegate to executive officers and administrative boards the authority to adopt and promulgate IRRs. To render such delegation lawful, the Legislature must declare the policy of the law and fix the legal principles that are to control in given cases. The Legislature should set a definite or primary standard to guide those empowered to execute the law. For as long as the policy is laid down and a proper standard is established by statute, there can be no unconstitutional delegation of legislative power when the Legislature leaves to selected instrumentalities the duty of making subordinate rules within the prescribed limits, although there is conferred upon the executive officer or administrative board a large measure of discretion. There is a distinction between the delegation of power to make a law and the conferment of an authority or a discretion to be exercised under and in pursuance of the law, for the power to make laws necessarily involves a discretion as to what it shall 26 be. The authority to make IRRs in order to carry out an express legislative purpose, or to effect the operation and enforcement of a law is not a power exclusively legislative in character, but is rather administrative in nature. The rules and regulations adopted and promulgated must not, however, subvert or be contrary to existing statutes. The function of promulgating IRRs may be legitimately exercised only for the purpose of carrying out the provisions of a law. The power of administrative agencies is confined to implementing the law or putting it into effect. Corollary to this is that administrative regulation cannot extend the law and amend a legislative enactment. It is axiomatic that the clear letter of the law is controlling and cannot be amended by a mere administrative rule issued for its implementation. Indeed, administrative or executive acts shall be valid only when they are not contrary to the laws or 27 the Constitution. 28 To be valid, therefore, the administrative IRRs must comply with the following requisites to be valid: 1. Its promulgation must be authorized by the Legislature; 2. It must be within the scope of the authority given by the Legislature; 3. It must be promulgated in accordance with the prescribed procedure; and 4. It must be reasonable. The COMELEC is constitutionally mandated to enforce and administer all laws and regulations relative to the conduct 29 of an election, a plebiscite, an initiative, a referendum, and a recall. In addition to the powers and functions conferred upon it by the Constitution, the COMELEC is also charged to promulgate IRRs implementing the provisions 30 of the Omnibus Election Code or other laws that the COMELEC enforces and administers. The COMELEC issued Resolution No. 7804 pursuant to its powers under the Constitution, Batas Pambansa Blg. 881, 31 and the Party-List System Act. Hence, the COMELEC met the first requisite. The COMELEC also met the third requisite. There is no question that Resolution No. 7804 underwent the procedural necessities of publication and dissemination in accordance with the procedure prescribed in the resolution itself. Whether Section 13 of Resolution No. 7804 was valid or not is thus to be tested on the basis of whether the second and fourth requisites were met. It is in this respect that the challenge of Lokin against Section 13 succeeds. As earlier said, the delegated authority must be properly exercised. This simply means that the resulting IRRs must not be ultra vires as to be issued beyond the limits of the authority conferred. It is basic that an administrative agency 32 cannot amend an act of Congress, for administrative IRRs are solely intended to carry out, not to supplant or to modify, the law. The administrative agency issuing the IRRs may not enlarge, alter, or restrict the provisions of the law it administers and enforces, and cannot engraft additional non-contradictory requirements not contemplated by 33 the Legislature. Section 8 of R.A. No. 7941 reads: Section 8. Nomination of Party-List Representatives.-Each registered party, organization or coalition shall submit to the COMELEC not later that forty-five (45) days before the election a list of names, not less than five (5), from which party-list representatives shall be chosen in case it obtains the required number of votes.

A person may be nominated in one (1) list only. Only persons who have given their consent in writing may be named in the list. The list shall not include any candidate of any elective office or a person who has lost his bid for an elective office in the immediately preceding election. No change of names or alteration of the order of nominees shall be allowed after the same shall have been submitted to the COMELEC except in cases where the nominee dies, or withdraws in writing his nomination, becomes incapacitated in which case the name of the substitute nominee shall be placed last in the list. Incumbent sectoral representatives in the House of Representatives who are nominated in the party-list system shall not be considered resigned. The provision is daylight clear. The Legislature thereby deprived the party-list organization of the right to change its nominees or to alter the order of nominees once the list is submitted to the COMELEC, except when: (a) the nominee dies; (b) the nominee withdraws in writing his nomination; or (c) the nominee becomes incapacitated. The provision must be read literally because its language is plain and free from ambiguity, and expresses a single, definite, and sensible meaning. Such meaning is conclusively presumed to be the meaning that the Legislature has intended to convey. Even where the courts should be convinced that the Legislature really intended some other meaning, and even where the literal interpretation should defeat the very purposes of the enactment, the explicit declaration of the 34 Legislature is still the law, from which the courts must not depart. When the law speaks in clear and categorical 35 language, there is no reason for interpretation or construction, but only for application. Accordingly, an administrative agency tasked to implement a statute may not construe it by expanding its meaning where its provisions are clear 36 and unambiguous. The legislative intent to deprive the party-list organization of the right to change the nominees or to alter the order of the nominees was also expressed during the deliberations of the Congress, viz: MR. LAGMAN: And again on Section 5, on the nomination of party list representatives, I do not see any provision here which prohibits or for that matter allows the nominating party to change the nominees or to alter the order of prioritization of names of nominees. Is the implication correct that at any time after submission the names could still be changed or the listing altered? MR. ABUEG: Mr. Speaker, that is a good issue brought out by the distinguished Gentleman from Albay and perhaps a perfecting amendment may be introduced therein. The sponsoring committee will gladly consider the same. MR. LAGMAN: In other words, what I would like to see is that after the list is submitted to the COMELEC officially, no more changes should be made in the names or in the order of listing. MR. ABUEG: Mr. Speaker, there may be a situation wherein the name of a particular nominee has been submitted to the Commission on Elections but before election day the nominee changed his political party affiliation. The nominee is therefore no longer qualified to be included in the party list and the political party has a perfect right to change the name of that nominee who changed his political party affiliation. MR. LAGMAN: Yes of course. In that particular case, the change can be effected but will be the exception rather than the rule. Another exception most probably is the nominee dies, then there has to be a change but any change for that matter should always be at the last part of the list so that the prioritization made by the party will not be adversely 37 affected. The usage of "No" in Section 8 "No change of names or alteration of the order of nominees shall be allowed after the same shall have been submitted to the COMELEC except in cases where the nominee dies, or withdraws in writing his nomination, or becomes incapacitated, in which case the name of the substitute nominee shall be placed last in the list" renders Section 8 a negative law, and is indicative of the legislative intent to make the statute mandatory. Prohibitive or negative words can rarely, if ever, be directory, for there is but one way to obey the 38 command "thou shall not," and that is to completely refrain from doing the forbidden act, subject to certain exceptions stated in the law itself, like in this case. Section 8 does not unduly deprive the party-list organization of its right to choose its nominees, but merely divests it of the right to change its nominees or to alter the order in the list of its nominees names after submission of the list to the COMELEC. The prohibition is not arbitrary or capricious; neither is it without reason on the part of lawmakers. The COMELEC can rightly presume from the submission of the list that the list reflects the true will of the party-list organization. The COMELEC will not concern itself with whether or not the list contains the real intended nominees of the party-list organization, but will only determine whether the nominees pass all the requirements prescribed by the law and whether or not the nominees possess all the qualifications and none of the disqualifications. Thereafter, the names of the nominees will be published in newspapers of general circulation. Although the people vote for the party-list organization itself in a party-list system of election, not for the individual nominees, they still have the right to know who the nominees of any particular party-list organization are. The publication of the list of the party-list nominees in newspapers of general circulation serves that right of the people, enabling the voters to make intelligent and informed choices. In contrast, allowing the party-list organization to change its nominees through withdrawal of their nominations, or to alter the order of the nominations after the submission of the list of nominees circumvents the voters demand for transparency. The lawmakers exclusion of such arbitrary withdrawal has eliminated the possibility of such circumvention. D Exceptions in Section 8 of R.A. 7941 are exclusive

Section 8 of R.A. No. 7941 enumerates only three instances in which the party-list organization can substitute another person in place of the nominee whose name has been submitted to the COMELEC, namely: (a) when the nominee dies; (b) when the nominee withdraws in writing his nomination; and (c) when the nominee becomes incapacitated. The enumeration is exclusive, for, necessarily, the general rule applies to all cases not falling under any of the three exceptions. When the statute itself enumerates the exceptions to the application of the general rule, the exceptions are strictly but reasonably construed. The exceptions extend only as far as their language fairly warrants, and all doubts should be resolved in favor of the general provision rather than the exceptions. Where the general rule is established by a statute with exceptions, none but the enacting authority can curtail the former. Not even the courts may add to the latter by implication, and it is a rule that an express exception excludes all others, although it is always proper in determining the applicability of the rule to inquire whether, in a particular case, it accords with reason and 39 justice. 1avvphi1 The appropriate and natural office of the exception is to exempt something from the scope of the general words of a statute, which is otherwise within the scope and meaning of such general words. Consequently, the existence of an exception in a statute clarifies the intent that the statute shall apply to all cases not excepted. Exceptions are subject to the rule of strict construction; hence, any doubt will be resolved in favor of the general provision and against the exception. Indeed, the liberal construction of a statute will seem to require in many circumstances that the exception, by which the operation of the statute is limited or abridged, should receive a restricted construction. E Section 13 of Resolution No. 7804 expanded the exceptions under Section 8 of R.A. No. 7941 Section 13 of Resolution No. 7804 states: Section 13. Substitution of nominees. A party-list nominee may be substituted only when he dies, or his nomination is withdrawn by the party, or he becomes incapacitated to continue as such, or he withdraws his acceptance to a nomination. In any of these cases, the name of the substitute nominee shall be placed last in the list of nominees. No substitution shall be allowed by reason of withdrawal after the polls. Unlike Section 8 of R.A. No. 7941, the foregoing regulation provides four instances, the fourth being when the "nomination is withdrawn by the party." Lokin insists that the COMELEC gravely abused its discretion in expanding to four the three statutory grounds for substituting a nominee. We agree with Lokin. The COMELEC, despite its role as the implementing arm of the Government in the enforcement and administration of 40 all laws and regulations relative to the conduct of an election, has neither the authority nor the license to expand, extend, or add anything to the law it seeks to implement thereby. The IRRs the COMELEC issues for that purpose should always accord with the law to be implemented, and should not override, supplant, or modify the law. It is basic 41 that the IRRs should remain consistent with the law they intend to carry out. Indeed, administrative IRRs adopted by a particular department of the Government under legislative authority must be in harmony with the provisions of the law, and should be for the sole purpose of carrying the laws general provisions into effect. The law itself cannot be expanded by such IRRs, because an administrative agency cannot 42 amend an act of Congress. The COMELEC explains that Section 13 of Resolution No. 7804 has added nothing to Section 8 of R.A. No. 43 7941, because it has merely reworded and rephrased the statutory provisions phraseology. The explanation does not persuade. To reword means to alter the wording of or to restate in other words; to rephrase is to phrase anew or in a new 44 form. Both terms signify that the meaning of the original word or phrase is not altered. However, the COMELEC did not merely reword or rephrase the text of Section 8 of R.A. No. 7941, because it established an entirely new ground not found in the text of the provision. The new ground granted to the party-list organization the unilateral right to withdraw its nomination already submitted to the COMELEC, which Section 8 of R.A. No. 7941 did not allow to be done. Neither was the grant of the unilateral right contemplated by the drafters of the law, who precisely denied the right to withdraw the nomination (as the quoted record of the deliberations of the House of Representatives has indicated). The grant thus conflicted with the statutory intent to save the nominee from falling under the whim of the party-list organization once his name has been submitted to the COMELEC, and to spare the electorate from the capriciousness of the party-list organizations. We further note that the new ground would not secure the object of R.A. No. 7941 of developing and guaranteeing a full, free and open party-list electoral system. The success of the system could only be ensured by avoiding any arbitrariness on the part of the party-list organizations, by seeing to the transparency of the system, and by guaranteeing that the electorate would be afforded the chance of making intelligent and informed choices of their party-list representatives. The insertion of the new ground was invalid. An axiom in administrative law postulates that administrative authorities should not act arbitrarily and capriciously in the issuance of their IRRs, but must ensure that their IRRs are

reasonable and fairly adapted to secure the end in view. If the IRRs are shown to bear no reasonable relation to the 45 purposes for which they were authorized to be issued, they must be held to be invalid and should be struck down. F Effect of partial nullity of Section 13 of Resolution No. 7804 46 An IRR adopted pursuant to the law is itself law. In case of conflict between the law and the IRR, the law prevails. There can be no question that an IRR or any of its parts not adopted pursuant to the law is no law at all and has 47 neither the force nor the effect of law. The invalid rule, regulation, or part thereof cannot be a valid source of any right, obligation, or power. Considering that Section 13 of Resolution No. 7804 to the extent that it allows the party-list organization to withdraw its nomination already submitted to the COMELEC was invalid, CIBACs withdrawal of its nomination of Lokin and the others and its substitution of them with new nominees were also invalid and ineffectual. It is clear enough that any substitution of Lokin and the others could only be for any of the grounds expressly stated in Section 8 of R.A. No. 7941. Resultantly, the COMELECs approval of CIBACs petition of withdrawal of the nominations and its recognition of CIBACs substitution, both through its assailed September 14, 2007 resolution, should be struck down for lack of legal basis. Thereby, the COMELEC acted without jurisdiction, having relied on the invalidly issued Section 13 of Resolution No. 7804 to support its action. WHEREFORE, we grant the petitions for certiorari and mandamus. We declare Section 13 of Resolution No. 7804 invalid and of no effect to the extent that it authorizes a party-list organization to withdraw its nomination of a nominee once it has submitted the nomination to the Commission on Elections. Accordingly, we annul and set aside: (a) The resolution dated September 14, 2007 issued in E. M. No. 07-054 approving Citizens Battle Against Corruptions withdrawal of the nominations of Luis K. Lokin, Jr., Sherwin N. Tugna, and Emil Galang as its second, third, and fourth nominees, respectively, and ordering their substitution by Cinchona C. CruzGonzales as second nominee and Armi Jane R. Borje as third nominee; and (b) The proclamation by the Commission on Elections of Cinchona C. Cruz-Gonzales as a Party-List Representative representing Citizens Battle Against Corruption in the House of Representatives. We order the Commission on Elections to forthwith proclaim petitioner Luis K. Lokin, Jr. as a Party-List Representative representing Citizens Battle Against Corruption in the House of Representatives. We make no pronouncements on costs of suit. SO ORDERED. MINERVA GOMEZ-CASTILLO G.R. No. 187231 Petitioner, Present: CORONA, C.J., CARPIO, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, and MENDOZA, JJ.: Promulgated: COMISSION ON ELECTIONS June 22, 2010 and STRIKE B. REVILLA, Respondents. x-----------------------------------------------------------------------------------------x DECISION

-versus -

BERSAMIN, J.:

Petitioner Minerva Gomez-Castillo (Castillo) hereby seeks to nullify the orders dated January 30, [1] 2009 and March 11, 2009 issued in EAC No. A-01-2009 by the Commission on Elections (COMELEC).

Antecedents Castillo and respondent Strike P. Revilla ran for Municipal Mayor of Bacoor, Cavite during the May 14, 2007 local elections. After the Municipal Board of Canvassers proclaimed Revilla as the elected Municipal Mayor of [2] Bacoor, Cavite, Castillo filed an Election Protest Ad Cautelam in the Regional Trial Court (RTC) in Bacoor, Cavite, which was eventually raffled to Branch 19. Through his Answer, Revilla sought the dismissal of the election protest, alleging that it was filed in the wrong Branch of the RTC. He pointed out that Supreme Court Administrative Order (SCAO) No. 54-2007 designated Branch 22 of the RTC in Imus, Cavite and Branch 88 of the RTC in Cavite City to hear, try and decide election contests involving municipal officials in Cavite; and that contrary to SCAO No. 54-2007, Castillo filed his protest in the RTC in Bacoor, Cavite, which was not the proper court. On November 21, 2008, Branch 19 dismissed Castillos election protest for being violative of SCAO No. 54 2007. On December 23, 2008, Castillo presented a notice of appeal. Thereupon, the RTC ordered that the complete records of the protest be forwarded to the Election Contests Adjudication Department (ECAD) of the [4] COMELEC. The First Division of the COMELEC dismissed the appeal for being brought beyond the five-day reglementary period, noting that although Castillo had received the November 21, 2008 order of the RTC on December 15 , 2008, she filed her notice of appeal on December 23, 2008, a day too late to appeal, to wit: Pursuant to Section 3, Rule 22 of the COMELEC Rules of Procedure which requires the appellant to file her notice of appeal within five (5) days after promulgation of the decision of the court xxx and considering further that jurisprudence holds that perfection of an appeal in the manner and within the period laid down by law is not only mandatory but JURISDICTIONAL,this Commission, First Division, RESOLVES to DISMISS the instant appeal for appellant's failure to file her Notice of Appeal within the five (5) day reglementary period. SO ORDERED.
[5] [3]

Castillo moved for the reconsideration of the dismissal of her appeal, but the COMELEC denied the motion because she did not pay the motion fees required under Sec. 7(f), Rule 40 of the COMELEC Rules of Procedure, as amended by COMELEC Resolution No. 02-0130, viz: The Motion for Reconsideration filed by protestant -appellant Minerva G. Castillo, thru registered mail on 13 February 2009 and received by this Commission on 4 March 2009, seeking reconsideration of the Commission's (First Division) Order dated 30 January 2009, is hereby DENIED for failure of the movant to pay the necessary motion fees under Sec. 7(f), Rule 40 [6] [7] of the Comelec Rules of Procedure as amended by Comelec Resolution no. 02-0130. Castillo has brought the present recourse, contending that the COMELECs orders dismissing her appeal and denying her motion for reconsideration were issued with grave abuse of discretion amounting to lack or excess of jurisdiction. Parties Arguments Castillo insists that her notice of appeal was seasonably filed; otherwise, the RTC would not have given due course to his appeal; that Section 3, Rule 22 of the COMELEC Rules of Procedure, cited in the assailed order dated January 30, 2009, did not apply to her case, because Section 2 of Rule I of the COMELEC Rules of Procedure provides that:

Sec. 2. Applicability.- These rules, except Part VI, shall apply to all actions and proceedings brought before the Commission. Part VI shall apply to election contests and Quo Warrantocases cognizable by courts of general jurisdiction. that the COMELEC Rules of Procedure applied only to actions and proceedings brought before the COMELEC, not to actions or proceedings originating in courts of general jurisdiction; that even assuming that the appeal was belatedly filed, the rules on election contests should be liberally construed to the end that mere technical objections would not defeat the will of the people in the choice of public officers; that the Court relaxed on numerous occasions the application of the rules in order to give due course to belated appeals upon strong and compelling reasons; that an electoral contest like hers was imbued with public interest, because it involved the paramount need to clarify the real choice of the electorate; that Section 4 of Rule I of the COMELEC Rules of Procedure even allows the COMELEC to suspend its own rules of procedure in order to obtain a speedy disposition of all matters pending before the COMELEC; and that the COMELEC should not have dismissed hermotion for reconsideration for her mere failure to pay the corresponding filing fee, but should have considered the soundness of her argument to the effect that SCAO No. 54-2007 continued to vest jurisdiction to try and decide election contest involving elective municipal officials in the RTC as a whole, rendering the designation of the RTC branches to handle election protests akin to a designation of venue. Castillo further insists that Section 12 of Rule 2 of the COMELEC Rules of Procedure provides that assignment of cases to the specially designated courts should be done exclusively by raffle conducted by the executive judge or by the judges designated by the Supreme Court; and that her protest was thus duly raffled to the RTC in Bacoor, Cavite, considering that SCAO 54-2007 should be construed as a permissive rule that cannot supersede the general rule that jurisdiction over election contests is vested in the RTC. In his comment, Revilla submits that the COMELEC correctly dismissed Castillos appeal for being filed beyond the five-day reglementary period prescribed in Section 3 of Rule 22 of the COMELEC Rules of Procedure, thus: Section 3. Notice of Appeal. - Within five (5) days after promulgation of the decision of the court, the aggrieved party may filed with said court a notice of appeal, and serve a copy thereof upon the attorney of record of the adverse party. that A.M. No. 07-4-15-SC, otherwise known as The Rules of Procedure in Election Contests Involving Elective Municipal and Barangay Officials, clearly and categorically directed: Section 8. Appeal. - An aggrieved party may appeal the decision to the commission on Elections, within five days after promulgation, by filing a notice of appeal with the court that rendered the decision, with copy served on the adverse counsel or party if not represented by counsel.
[8]

that the period for filing an appeal is not a mere technicality of law or procedure and the right to appeal is merely a statutory privilege that may be exercised only in the manner prescribed by the law; that the notice of appeal, even on the assumption that it was filed on time, still remained futile due to the petitioners failure to pay the corresponding fee for the motion for reconsideration; that the failure to pay the filing fee rendered the motion for reconsideration a mere scrap of paper, because it prevented the COMELEC from acquiring jurisdiction over the protest; and that the COMELEC could not be faulted for applying its procedural rules to achieve a just and expeditious determination of every proceeding brought before it. Issues Does Section 13 of Rule 2 of A.M. No. 07-4-15-SC designate the RTC Branch that has jurisdiction over an election contest, or does it merely designate the proper venue for filing? In case the RTC was incorrect, is the error enough to warrant the reversal of its order of dismissal despite its having attained finality?

Ruling

The petition has no merit.

A Error of Petitioner in filing the protest in RTC in Bacoor, not jurisdictional

It is well-settled that jurisdiction is conferred by law. As such, jurisdiction cannot be fixed by the will of the parties; nor be acquired through waiver nor enlarged by the omission of the parties; nor conferred by any acquiescence of the court. The allocation of jurisdiction is vested in Congress, and cannot be delegated to another office or agency of the Government. The Rules of Court does not define jurisdictional boundaries of the courts. In promulgating the Rules of Court, the Supreme Court is circumscribed by the zone properly denominated as the promulgation of rules [9] concerning pleading, practice, and procedure in all courts; consequently, the Rules of Court can only determine the means, ways or manner in which said jurisdiction, as fixed by the Constitution and acts of Congress, shall be [10] exercised. The Rules of Court yields to the substantive law in determining jurisdiction. The jurisdiction over election contests involving elective municipal officials has been vested in the RTC by [11] Section 251, Batas Pambansa Blg. 881 (Omnibus Election Code). On the other hand, A.M. No. 07-4-15-SC, by specifying the proper venue where such cases may be filed and heard, only spelled out the manner by which an RTC with jurisdiction exercises such jurisdiction. Like other rules on venue, A.M. No. 07-4-15-SC was designed to ensure [12] a just and orderly administration of justice, and is permissive, because it was enacted to ensure the exclusive and [13] speedy disposition of election protests and petitions for quo warranto involving elective municipal officials. Castillos filing her protest in the RTC in Bacoor, Cavite amounted only to a wrong choice of venue. Hence, the dismissal of the protest by Branch 19 constituted plain error, considering that her wrong choice did not affect the jurisdiction of the RTC. What Branch 19 should have done under the circumstances was to transfer the protest to Branch 22 of the RTC in Imus, Cavite, which was the proper venue. Such transfer was proper, whether she as the protestant sought it or not, given that the determination of the will of the electorate of Bacoor, Cavite according to the process set forth by law was of the highest concern of our institutions, particularly of the courts. B Castillos tardy appeal should be dismissed

Section 8 of A.M. No. 07-4-15-SC provides that: Section 8. Appeal. - An aggrieved party may appeal the decision to the Commission on Elections within five days after promulgation by filing a notice of appeal with the court that rendered the decision with copy served on the adverse counsel or party if not represented by counsel.

Although Castillo had received the November 21, 2008 order of the RTC on December 15, 2008, she filed her notice of appeal only on December 23, 2008, or eight days after her receipt of the decision. Her appeal was properly dismissed for being too late under the aforequoted rule of the COMELEC. Castillo now insists that her appeal should not be dismissed, because she claims that the five-day reglementary period was a mere technicality, implying that such period was but a trivial guideline to be ignored or brushed aside at will. Castillos insistence is unacceptable. The period of appeal and the perfection of appeal are not m ere technicalities to be so lightly regarded, for they are essential to the finality of judgments, a notion underlying the [14] stability of our judicial system. A greater reason to adhere to this notion exists herein, for the short period of five days as the period to appeal recognizes the essentiality of time in election protests, in order that the will of the electorate is ascertained as soon as possible so that the winning candidate is not deprived of the right to assume office, and so that any doubt that can cloud the incumbency of the truly deserving winning candidate is quickly removed. Contrary to Castillos posture, we cannot also presume the timeliness of her appeal from the fact that the RTC gave due course to her appeal by its elevating the protest to the COMELEC. The presumption of timeliness would not arise if her appeal was actually tardy. It is not trite to observe, finally, that Castillos tardy appeal resulted in the finality of the RTCs dismissal even before January 30, 2002. This result provides an additional reason to warrant the assailed actions of the COMELEC in dismissing her appeal. Accordingly, the Court finds that the COMELECs assailed actions were appropriate and lawful, not tainted by either arbitrariness or whimsicality,

WHEREFORE, the petition is dismissed for lack of merit. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 189600 June 29, 2010 MILAGROS E. AMORES, Petitioner, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and EMMANUEL JOEL J. VILLANUEVA,Respondents. DECISION CARPIO MORALES, J.: Via this petition for certiorari, Milagros E. Amores (petitioner) challenges the Decision of May 14, 2009 and Resolution No. 09-130 of August 6, 2009 of the House of Representatives Electoral Tribunal (public respondent), which respectively dismissed petitioners Petition for Quo Warranto questioni ng the legality of the assumption of office of Emmanuel Joel J. Villanueva (private respondent) as representative of the party-list organization Citizens Battle Against Corruption (CIBAC) in the House of Representatives, and denied petitioners Motion for Reconsideration. 1 In her Petition for Quo Warranto seeking the ouster of private respondent, petitioner alleged that, among other things, private respondent assumed office without a formal proclamation issued by the Commission on Elections (COMELEC); he was disqualified to be a nominee of the youth sector of CIBAC since, at the time of the filing of his certificates of nomination and acceptance, he was already 31 years old or beyond the age limit of 30 pursuant to Section 9 of Republic Act (RA) No. 7941, otherwise known as the Party-List System Act; and his change of affiliation from CIBACs youth sector to its overseas Filipino workers and their families sector was not effected at least six months prior to the May 14, 2007 elections so as to be qualified to represent the new sector under Section 15 of RA No. 7941. Not having filed his Answer despite due notice, private respondent was deemed to have entered a general denial 2 pursuant to public respondents Rules. 3 As earlier reflected, public respondent, by Decision of May 14, 2009, dismissed petitioners Petition for Quo Warranto, finding that CIBAC was among the party-list organizations which the COMELEC had partially proclaimed as entitled to at least one seat in the House of Representatives through National Board of Canvassers (NBC) Resolution No. 07-60 dated July 9, 2007. It also found the petition which was filed on October 17, 2007 to be out of time, the reglementary period being 10 days from private respondents proclamatio n. Respecting the age qualification for youth sectoral nominees under Section 9 of RA No. 7941, public respondent held that it applied only to those nominated as such during the first three congressional terms after the ratification of the Constitution or until 1998, unless a sectoral party is thereafter registered exclusively as representing the youth sector, which CIBAC, a multi-sectoral organization, is not. In the matter of private respondents shift of affiliation from CIBACs youth sector to its overs eas Filipino workers and their families sector, public respondent held that Section 15 of RA No. 7941 did not apply as there was no resultant change in party-list affiliation. 4 Her Motion for Reconsideration having been denied by Resolution No. 09-130 dated August 6, 2009, petitioner filed 5 the present Petition for Certiorari. Petitioner contends that, among other things, public respondent created distinctions in the application of Sections 9 and 15 of RA No. 7941 that are not found in the subject provisions, fostering interpretations at war with equal protection of the laws; and NBC Resolution No. 07-60, which was a partial proclamation of winning party-list organizations, was not enough basis for private respondent to assume office on July 10, 2007, especially considering that he admitted receiving his own Certificate of Proclamation only on December 13, 2007. 6 In his Comment, private respondent avers in the main that petitioner has not substantiated her claims of grave abuse of discretion against public respondent; and that he became a member of the overseas Filipinos and their families sector years before the 2007 elections. It bears noting that the term of office of party-list representatives elected in the May, 2007 elections will expire on June 30, 2010. While the petition has, thus, become moot and academic, rendering of a decision on the merits in this 7 case would still be of practical value. The Court adopts the issues framed by public respondent, to wit: (1) whether petitioners Petition for Quo Warranto was dismissible for having been filed unseasonably; and (2) whether Sections 9 and 15 of RA No. 7941 apply to private respondent. On the first issue, the Court finds that public respondent committed grave abuse of discretion in considering petitioners Petition for Quo Warranto filed out of time. Its counting of the 10 -day reglementary period provided in its 8 Rules from the issuance of NBC Resolution No. 07-60 on July 9, 2007 is erroneous.

To be sure, while NBC Resolution No. 07-60 partially proclaimed CIBAC as a winner in the May, 2007 elections, 9 along with other party-list organizations, it was by no measure a proclamation of private respondent himself as required by Section 13 of RA No. 7941. Section 13. How Party-List Representatives are Chosen. Party-list representatives shall be proclaimed by the COMELEC based on the list of names submitted by the respective parties, organizations, or coalitions to the COMELEC according to their ranking in said list. AT ALL EVENTS, this Court set aside NBC Resolution No. 07-60 in Barangay Association for National Advancement 10 and Transparency v. COMELEC after revisiting the formula for allocation of additional seats to party-list organizations. Considering, however, that the records do not disclose the exact date of private respondents proclamation, the Court overlooks the technicality of timeliness and rules on the merits. Alternatively, since petitioners challenge goes into private respondents qualifications, it may be filed at anytime during his term. Qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or election or assumption of office but during the officer's entire tenure. Once any of the required 11 qualifications is lost, his title may be seasonably challenged. On the second and more substantial issue, the Court shall first discuss the age requirement for youth sector nominees under Section 9 of RA No. 7941 reading: Section 9. Qualifications of Party-List Nominees. No person shall be nominated as party-list representative unless he is a natural-born citizen of the Philippines, a registered voter, a resident of the Philippines for a period of not less than one (1)year immediately preceding the day of the election, able to read and write, a bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election, and is at least twenty-five (25) years of age on the day of the election. In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty (30) years of age on the day of the election. Any youth sectoral representative who attains the age of thirty (30) during his term shall be allowed to continue in office until the expiration of his term. (Emphasis and underscoring supplied.) The Court finds no textual support for public respondents interpretation that Section 9 applied only to those nominated during the first three congressional terms after the ratification of the Constitution or until 1998, unless a sectoral party is thereafter registered exclusively as representing the youth sector. A cardinal rule in statutory construction is that when the law is clear and free from any doubt or ambiguity, there is no 12 room for construction or interpretation. There is only room for application. As the law states in unequivocal terms that a nominee of the youth sector must at least be twenty-five (25) but not more than thirty (30) years of age on the day of the election, so it must be that a candidate who is more than 30 on election day is not qualified to be a youth sector nominee. Since this mandate is contained in RA No. 7941, the PartyList System Act, it covers ALL youth sector nominees vying for party-list representative seats. As petitioner points out, RA No. 7941 was enacted only in March, 1995. There is thus no reason to apply Section 9 thereof only to youth sector nominees nominated during the first three congressional terms after the ratification of the Constitution in 1987. Under this interpretation, the last elections where Section 9 applied were held in May, 1995 or two months after the law was enacted. This is certainly not sound legislative intent, and could not have been the objective of RA No. 7941. There is likewise no rhyme or reason in public respondents ratiocination that after the third congressional term from the ratification of the Constitution, which expired in 1998, Section 9 of RA No. 7941 would apply only to sectoral parties registered exclusively as representing the youth sector. This distinction is nowhere found in the law. Ubi lex 13 non distinguit nec nos distinguire debemus. When the law does not distinguish, we must not distinguish. Respecting Section 15 of RA No. 7941, the Court fails to find even an iota of textual support for public respondents ratiocination that the provision did not apply to private respondents shift of affiliation from CIBACs youth sector to its overseas Filipino workers and their families sector as there was no resultant change in party-list affiliation. Section 15 reads: Section 15. Change of Affiliation; Effect. Any elected party-list representative who changes his political party or sectoral affiliation during his term of office shall forfeit his seat: Provided, That if he changes his political party orsectoral affiliation within six (6) months before an election, he shall not be eligible for nomination as party-list representative under his new party or organization. (emphasis and underscoring supplied.) What is clear is that the wording of Section 15 covers changes in both political party and sectoral affiliation. And the latter may occur within the same party since multi-sectoral party-list organizations are qualified to participate in the Philippine party-list system. Hence, a nominee who changes his sectoral affiliation within the same party will only be eligible for nomination under the new sectoral affiliation if the change has been effected at least six months before the elections. Again, since the statute is clear and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation. This is the plain meaning rule or verba legis, as expressed in the maxim index animi 14 sermo or speech is the index of intention. It is, therefore, beyond cavil that Sections 9 and 15 of RA No. 7941 apply to private respondent. The Court finds that private respondent was not qualified to be a nominee of either the youth sector or the overseas Filipino workers and their families sector in the May, 2007 elections.

The records disclose that private respondent was already more than 30 years of age in May, 2007, it being stipulated 15 that he was born in August, 1975. Moreover, he did not change his sectoral affiliation at least six months before May, 2007, public respondent itself having found that he shifted to CIBACs overseas Filipino workers and their 16 families sector only on March 17, 2007. 1avvphi1 That private respondent is the first nominee of CIBAC, whose victory was later upheld, is of no moment. A party-list organizations ranking of its nominees is a mere indication of preference, their qualifications according to law are a different matter. It not being contested, however, that private respondent was eventually proclaimed as a party-list representative of CIBAC and rendered services as such, he is entitled to keep the compensation and emoluments provided by law for 17 the position until he is properly declared ineligible to hold the same. WHEREFORE, the petition is GRANTED. The Decision dated May 14, 2009 and Resolution No. 09-130 dated August 6, 2009 of the House of Representatives Electoral Tribunal are SET ASIDE. Emmanuel Joel J. Villanueva is declared ineligible to hold office as a member of the House of Representatives representing the party-list organization CIBAC. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 191938 October 19, 2010 ABRAHAM KAHLIL B. MITRA, Petitioner, vs. COMMISSION ON ELECTIONS, ANTONIO V. GONZALES and ORLANDO R. BALBON, JR., Respondents. RESOLUTION BRION, J.: 1 We resolve the Motion for Reconsideration filed by public respondent Commission on Elections (COMELEC) and the 2 Motion for Reconsideration with Motion for Oral Arguments filed by private respondents Antonio V. Gonzales and Orlando R. Balbon, Jr. (private respondents), dated July 19, 2010 and July 20, 2010, respectively, addressing our 3 Decision of July 2, 2010 (July 2, 2010 Decision or Decision). We annulled in this Decision the February 10, 2010 and May 4, 2010 Resolutions of the COMELEC, and denied the private respondents petition to cancel the Certificate of Candidacy (COC) of petitioner Abraham Kahlil B. Mitra (Mitra). The Assailed Ruling To recall its highlights, our Decision emphasized that despite our limited certiorari jurisdiction in election cases, we are not only obliged but are constitutionally bound to intervene when the COMELECs action on the appreciation and evaluation of evidence oversteps the limits of its discretion in this case, a situation where resulting errors, arising from the grave abuse committed by the COMELEC, mutated from being errors of judgment to errors of jurisdiction. Based on our evaluation of the evidence presented by both parties, we found that Mitra did not commit any deliberate material misrepresentation in his COC. We noted, too, that the COMELEC gravely abused its discretion in its appreciation of the evidence, leading it to conclude that Mitra is not a resident of Aborlan, Palawan. We also found that the COMELEC failed to critically consider whether Mitra deliberately attempted to mislead, misinform or hide a fact that would otherwise render him ineligible for the position of Governor of Palawan. On the critical question of whether Mitra deliberately misrepresented his Aborlan residence to deceive and mislead the people of the Province of Palawan, we found that Mitra did not. In fact, Mitra adduced positive evidence of transfer of residence which the private respondents evidence failed to sufficiently controvert. Specifically, the private respondents evidence failed to show that Mitra remained a Puerto Princesa City resident. In this regard, we took note of the "incremental moves" Mitra undertook to establish his new domicile in Aborlan, as evidenced by the following: (1) his expressed intent to transfer to a residence outside of Puerto Princesa City to make him eligible for a provincial position; (2) his preparatory moves starting in early 2008; (3) the transfer of registration as a voter in March 2009; (4) his initial transfer through a leased dwelling at Maligaya Feedmill; (5) the purchase of a lot for his permanent home; and (6) the construction of a house on the said lot which is adjacent to the premises he was leasing pending the completion of his house. Thus, we found that under the situation prevailing when Mitra filed his COC, there is no reason to infer that Mitra committed any misrepresentation, whether inadvertently or deliberately, in claiming residence in Aborlan. We also emphasized that the COMELEC could not even present any legally acceptable basis (as it used subjective non-legal standards in its analysis) to conclude that Mitras statement in his COC concerning his residence was indeed a misrepresentation. In sum, we concluded that the evidence in the present case, carefully reviewed, showed that Mitra indeed transfered his residence from Puerto Princesa City to Aborlan within the period required by law. The Motions for Reconsideration In its Motion for Reconsideration dated July 19, 2010, the COMELEC, through the Office of the Solicitor General, asks us to reconsider our July 2, 2010 Decision on the sole ground that: THIS HONORABLE COURT ERRED WHEN IT REVIEWED THE PROBATIVE VALUE OF THE EVIDENCE PRESENTED AND SUBSTITUTED ITS OWN FACTUAL FINDINGS OVER THAT OF [THE] PUBLIC 4 RESPONDENT.

The COMELEC argues that we overstepped our review power over its factual findings; as a specialized constitutional body, the findings and conclusions of the COMELEC are generally respected and even given the status of finality. The COMELEC also contends that the Court erred in taking cognizance of the present petition since the issues raised therein are essentially factual in nature. It claims that it is elementary that the extraordinary remedy of certiorari is limited to correcting questions of law and that the factual issues raised in the present petition are not appropriate for a petition for review on certiorari. On the merits, the COMELEC submits that there is substantial, if not overwhelming, evidence that Mitra is not a resident of Aborlan, Palawan. It argues that it merely took cognizance of Mitras purported dwellings "habitableness," or lack thereof, to determine the fact of residency; while Mitra may have exhibited his intention to transfer his domicile, the fact of actual residency was lacking. For their part, the private respondents raise the following errors in support of their Motion for Reconsideration with Motion for Oral Arguments dated July 20, 2010, viz: I. THE MAJORITY ERRED IN EXERCISING THIS HONORABLE COURTS LIMITED CERTIORARI JURISDICTION EVEN WHEN THE PETITION, ON ITS FACE, FAILED TO SHOW HOW THE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION. II. THE MAJORITY ERRED IN CONCLUDING THAT THE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION BY USING SUBJECTIVE AND NON-LEGAL STANDARDS IN ASSESSING THE EVIDENCE SUBMITTED BY MITRA. III. GRANTING WITHOUT ADMITTING THAT THE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION IN ONE ASPECT OF ITS RESOLUTION, THE SUPREME COURT SHOULD NONETHELESS CONSIDER WHETHER THE OTHER EVIDENCE SUBMITTED ARE ENOUGH TO SUSTAIN THE RULING OF THE COMELEC. A. THE QUANTUM OF EVIDENCE NECESSARY TO OVERTURN THE FINDINGS OF FACTS OF THE COMELEC SHOULD BE CLEAR AND CONVINCING EVIDENCE. WHEN THE EVIDENCE OF [THE] PETITIONER ARE UNSUBSTANTIATED AND CONTROVERTED, THE SAME FAILS TO REACH THE QUANTUM OF PROOF NECESSARY TO SUBSTITUTE THE FINDINGS OF THE COMELEC. IV. THE MAJORITY ERRED IN FOCUSING ON THE COMELECS OPINION REGARDING THE PHOTOGRAPHS SUBMITTED BY MITRA OF HIS SUPPOSED RESIDENCE, WHILE TOTALLY DISREGARDING OTHER EVIDENCE SUBMITTED BY THE PRIVATE RESPONDENTS AND CONSIDERED BY THE COMELEC. A. THE MAJORITY ERRED IN DISREGARDING THE EFFECTIVITY OF THE CONTRACT OF LEASE WHICH SHOWS THAT THE SAME IS ONLY UP TO 28 FEBRUARY 2010. B. THE MAJORITY ERRED IN DISREGARDING EVIDENCE WHICH SHOW THAT MITRA FAILED TO ABANDON HIS DOMICILE OF ORIGIN. V. THE MAJORITY ERRED IN HOLDING THAT MITRA HAD TRANSFERRED HIS RESIDENCE FROM HIS DOMICILE OF ORIGIN IN PUERTO PRINCESA CITY TO HIS DOMICILE OF CHOICE IN ABORLAN, IN AN INCREMENTAL PROCESS. VI. THE MAJORITY ERRED IN HOLDING THAT MITRA DID NOT COMMIT ANY DELIBERATE MATERIAL MISREPRESENTATION IN HIS COC. A. THE MATERIAL STATEMENT IN PETITIONERS COC RESPECTING HIS RESIDENCE HAS BEEN SHOWN TO BE FALSE. BY MAKING SUCH FALSE STATEMENT, PETITIONER DELIBERATELY TRIED TO MISLEAD AND TO MISINFORM THE ELECTORATE AS TO HIS ACTUAL RESIDENCE. HENCE, HIS COC WAS CORRECTLY DENIED DUE COURSE AND CANCELLED. B. THE MAJORITY ERRED IN EXONERATING MITRA FROM THE VIOLATION OF A MANDATORY PROVISION OF LAW WHICH ENTAILS BOTH ADMINISTRATIVE AND CRIMINAL LIABILITIES BY INVOKING THE PURPOSE OF THE LAW WHERE SUCH RESORT IS NOT CALLED FOR IN VIEW OF THE GIVEN FACTS AND EVIDENCE PRESENTED IN THIS CASE. VII. JURISPRUDENCE RELIED ON BY THE MAJORITY IS NOT APPLICABLE TO THE PRESENT CASE. A. THE CASE OF TORAYNO V. COMELEC IS NOT APPLICABLE TO THE PRESENT CASE. B.

THE CASE OF ASISTIO V. TRINIDAD PE-AGUIRRE IS LIKEWISE NOT APPLICABLE TO THE PRESENT CASE. C. 5 THE CASE OF VELASCO SHOULD BE APPLIED STRICTLY TO THE PRESENT CASE. Our Ruling We resolve to deny, for lack of merit, the motions for reconsideration and for oral arguments. We note at the outset that the COMELEC and private respondents arguments are mere rehashes of their previous submissions; they are the same arguments addressing the issues we already considered and passed upon in our July 2, 2010 Decision. Thus, both the COMELEC and private respondents failed to raise any new and substantial argument meriting reconsideration. The denial of the motion for oral arguments proceeds from this same reasoning; mere reiterations of the parties original submissions on issues our Decision has sufficiently covered, without more, do not merit the time, effort and attention that an oral argument shall require. Having said these, we shall still proceed to discuss the aspects of the case the motions touched upon, if only to put an end to lingering doubts on the correctness of our July 2, 2010 Decision. First, both the COMELEC and the private respondents posit that the Court improperly exercised its limited certiorari jurisdiction; they theorize that Mitras petition failed to allege and show errors of jurisdiction or grave abuse of discretion on the part of the COMELEC. They also stress that the Court should re spect and consider the COMELECs findings of fact to be final and non-reviewable. The COMELECs submission in this regard that the extraordinary remedy of certiorari is limited to corrections of questions of law and that the factual issues raised in the present petition are not appropriate for a petition for review on certiorari is wholly erroneous. This submission appears to have confused the standards of the Courts power of review under Rule 65 and Rule 45 of the Rules of Court, leading the COMELEC to grossly misread the import of Mitras petition before the Court. To recall, Mitra brought his case before us via a petition for certiorari, pursuant to Section 2, Rule 64, in relation to Rule 65, of the Rules of Court. Thus, in our July 2, 2010 Decision, we emphasized that our review (under the Rule 65 standard of grave abuse of discretion, and not under the Rule 45 question of law standard) is based on a very limited ground, i.e., on the jurisdictional issue of whether the COMELEC acted without or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction. The basis for the Courts review of COMELEC rulings under the standards of Rule 65 of the Rules of Court is Section 7, Article IX-A of the Constitution which provides that "[U]nless otherwise provided by [the] Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof." For this reason, the Rules of Court provide for a separate rule (Rule 64) specifically applicable only to decisions of the COMELEC and the Commission on Audit. This Rule expressly refers to the application of Rule 65 in the filing of a petition for certiorari, subject to the exception clause 6 "except as hereinafter provided." 7 8 In Aratuc v. Commission on Elections and Dario v. Mison, the Court construed the above-cited constitutional provision as relating to the special civil action for certiorari under Rule 65 (although with a different reglementary period for filing) and not to an appeal by certiorari under Rule 45 of the Rules of Court. Thus, Section 2 of Rule 64 of the Rules of Court now clearly specifies that the mode of review is the special civil action of certiorari under Rule 65, 9 except as therein provided. In Ocate v. Commission on Elections, we further held that: The purpose of a petition for certiorari is to determine whether the challenged tribunal has acted without or in excess of its jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction.1avvphi1 Thus, any resort to a petition for certiorari under Rule 64 in relation to Rule 65 of the 1997 Rules of Civil Procedure is limited to the resolution of jurisdictional issues. 10 The COMELEC should likewise be aware that the Constitution itself, in defining judicial power, pointedly states that 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. This provision, more than anything else, identifies the power and duty of this Court in grave abuse of discretion situations, and differentiates this authority from the power of review by appeal that Rule 45 of the Rules of Court defines. Based on these considerations, we cannot accept the COMELECs position that patently confuses the mode of review in election cases under Rules 64 and 65 of the Rules of Court, with the appellate review that Rule 45 of the same Rules provides. We likewise reject the COMELEC and the private respondents proposition that the Court erred in exercising its limited certiorari jurisdiction. Although the COMELEC is admittedly the final arbiter of all factual issues as the 11 12 Constitution and the Rules of Court provide, we stress that in the presence of grave abuse of discretion, our constitutional duty is to intervene and not to shy away from intervention simply because a specialized agency has been given the authority to resolve the factual issues. As we emphasized in our Decision, we have in the past recognized exceptions to the general rule that the Court ordinarily does not review in a certiorari case the COMELECs appreciation and evaluation of evidence. One such

exception is when the COMELECs appreciation and evaluation of evidence go beyond the limits of its discretion to the point of being grossly unreasonable. In this situation, we are duty bound under the Constitution to intervene and correct COMELEC errors that, because of the attendant grave abuse of discretion, have mutated into errors of jurisdiction. Our Decision clearly pointed out Mitras submissi ons and arguments on grave abuse of discretion, namely, that the COMELEC failed to appreciate that the case is a cancellation of a COC proceeding and that the critical issue is the presence of deliberate false material representation to deceive the elector ate. In fact, Mitras petition plainly argued that the COMELECs grave abuse of discretion was patent when it failed to consider that the ground to deny a COC is deliberate false representation. We completely addressed this issue and, in the process, analyzed the reasoning in the assailed COMELEC decision. At every step, we found that the COMELEC committed grave abuse of discretion in the appreciation of the evidence. Second, the private respondents contend that the COMELEC did not use subjective non-legal standards (i.e., interior decoration of the room) in arriving at its decision; it merely stated how it perceived Mitras alleged residence. The private respondents additionally claim that the quantum of evidence necessary to overturn the findings of the COMELEC should be clear and convincing evidence, which level of evidence does not obtain in the present case. The assailed COMELEC ruling speaks for itself on the matter of the standards the COMELEC used. We found that the COMELEC plainly used a subjective non-legal standard in its analysis and thereby, the COMELEC used wrong considerations in arriving at the conclusion that Mitras residence at the Maligaya Feedmill is not the residence contemplated by law. We reiterate that the COMELEC based its ruling that Mitra did not take up residence in Aborlan largely on the photographs of Mitras Aborlan premises; it concluded that the photographed premises could not have been a residence because of its assessment of the interior design and furnishings of the room. Thus, the COMELEC Second Divisions Resolution (which the COMELEC en banc fully supported) did not merely conclude that Mitra does not live in the photographed premises; more than this, it ruled that these premises cannot be considered a home or a residence, for lack of the qualities of a home that the Second Division wanted to see. To quote: The pictures presented by Mitra of his supposed "residence" are telling. The said pictures show a small, sparsely furnished room which is evidently unlived in and which is located on the second floor of a structure that appears like a factory or a warehouse. These pictures likewise show that the "residence" appears hastily set-up, cold, and utterly devoid of any [personality] which would have imprinted Mitras personality thereto such as old family photographs and memorabilia collected through the years. In fact, an appreciation of Mitras supposed "residence" raises doubts whether or not he indeed lives there. Verily, what is lacking therein are the loving attention and details inherent in every home to make it ones residence. Perhaps, at most, and to this Commissions mind, this small room could have served as Mitras resting area whenever he visited the said locality but nothing more. This observation coupled with the numerous statements from former employees and customers of Maligaya Feed Mill and Farm that Mitras residence is located in an unsavory location, considering the noise and pollution of being in a factory area, and that the same, in fact, had been Maligaya F eed Mills office just a few months back, militates against Mitras claim that the same has been his residence since early 2008. These information make it clear to this 13 Commission that this room is not a home. Thus presented, the COMELECs requirement of what should be considered a "residence" cannot but be a highly subjective one that finds no basis in law, in jurisprudence, or even in fact. Third, we cannot likewise agree with the private respondents theory that the quantum of evidence necessary to overturn the factual findings of the COMELEC should be clear and convincing evidence, as it misappreciates that we nullified the COMELECs findings because it used the wrong considerations in arriving at its conclusions. The private respondents fail to realize that the important considerations in the present case relate to questions bearing on the cancellation of the COC that they prayed for; the main critical points are the alleged deliberate misrepresentation by Mitra and the underlying question of his residency in Aborlan, Palawan. While it is undisputed that Mitras domicile of origin is Puerto Princesa City, Mitra adequately proved by substantial evidence that he transferred by incremental process to Aborlan beginning 2008, and concluded his transfer in early 2009. As our Decision discussed and as repeated elsewhere in this Resolution, the private respondents failed to establish by sufficiently convincing evidence that Mitra did not effectively transfer, while the COMELEC not only grossly misread the evidence but even used the wrong considerations in appreciating the submitted evidence. To convince us of their point of view, the private respondents point out that we (1) totally disregarded the other evidence they submitted, which the COMELEC, on the other hand, properly considered; (2) disregarded the import of the effectivity of the lease contract, which showed that it was only effective until February 28, 2010; and (3) disregarded the evidence showing that Mitra failed to abandon his domicile of origin. These issues are not new issues; we extensively and thoroughly considered and resolved them in our July 2, 2010 Decision. At this point, we only need to address some of the private respondents misleading points in order to clear the air. 1. The private respondents reliance on the expiration date of the lease contract, to disprove Mitras claim that the room at the Maligaya Feedmill is his residence, is misplaced. This argument is flimsy since the contract did not provide that it was completely and fully time-barred and was only up to February 28, 2010; it was renewable at the option of the parties. That a lease is fixed for a one-year term is a common practice.

What is important is that it is renewable at the option of the parties. In the absence of any objection from the 14 parties, the lease contract simply continues and is deemed renewed. 2. In an attempt to show that Mitra considers himself a resident of Puerto Princesa City, the private respondents submitted in their Motion for Reconsideration a colored certified true copy of Mitras alleged 15 Puerto Princesa City Community Tax Certificate (CTC) dated February 3, 2009 allegedly showing Mitras signature. To recall, we found that based on the records before us, the purported February 3, 2009 CTC did not bear the signature of Mitra. Although the private respondents have belatedly filed this evidence, we carefully examined the recently submitted colored copy of the February 3, 2009 CTC and saw no reason to reverse our finding; the "alleged signature" appears to us to be a mere hazy "superimposition" that does not bear any resemblance at all to Mitras signature. We, thus, stand by our ruling that the February 3, 2009 CTC, if at all, carries very little evidentiary value. It did it not at all carry Mitras signature; his secretarys positive testimony that she secured the CTC for Mitra, without the latters participation and knowledge, still stands unrefuted. 16 3. The private respondents likewise belatedly submitted a Certification, dated July 17, 2010, from the Municipal Agriculturist of Aborlan, stating that its office does not have any record of the supposed pineapple plantation in Barangay Isaub, Aborlan, Palawan. This late submission was made to show that Mitra has no established business interests in Aborlan. The Certification pertinently states: This is to certify that as of this date, there is no existing records/registration in our office regarding the alleged pineapple plantation in Barangay Isaub, Aborlan, Palawan. However, the Office of the Municipal Agriculturist is on the process of gathering data on the Master list of Farmers engaged in growing High Value Commercial Crops in Aborlan. This certification is issued to MR. BENJAMIN KATON a resident in Penida Subdivision, Puerto Princesa City for whatever legal purposes may serve him best. We cannot give any evidentiary value to this submission for two reasons. First, it was filed only on reconsideration stage and was not an evidence before us when the case was submitted for resolution. Second, even if it had not been filed late, the Certification does not prove anything; it is, on its face, contradictory. On the one hand, it categorically states that there are no existing records of any pineapple plantation in Barangay Isaub, Aborlan, Palawan; on the other hand, it also expressly states that its records are not yet complete since it is "on the process of gathering data on the Master list of Farmers engaged in 17 growing High Value Commercial Crops in Aborlan." Under what law or regulation the certifying office has the obligation to prepare a list of agricultural business interests in Aborlan has not even been alleged. At the risk of repetition, we reiterate that Mitras business interests in Aborlan stand undisputed in the present case. Not only was Mitra able to present photographs of his experimental pineapple plantation; his claim of ownership was also corroborated by the statements of Dr. Carme Caspe, Ricardo Temple and other witnesses. 4. The private respondents also claim that the Court erred in ruling that Mitra did not commit any deliberate material misrepresentation in his COC. We likewise see no merit in this claim. One important point in the present case is that the private respondents failed to prove that there was deliberate material misrepresentation in Mitras statement on his required residency prior to the May 10, 2010 elections. This, as we stressed in our Decision, is a glaring gap in the private respondents case: We do not believe that he committed any deliberate misrepresentation given what he knew of his transfer, as shown by the moves he had made to carry it out. From the evidentiary perspective, we hold that the evidence confirming residence in Aborlan decidedly tilts in Mitras favor; even assuming the worst for Mitra, the evidence in his favor cannot go below the level of an equipoise, i.e., when weighed, Mitras evidence of transfer and residence in Aborlan cannot be overcome by the respondents evidence that he remained a Puerto Princesa City resident. Under the situation prevailing when Mitra filed his COC, we cannot conclude that Mitra committed any misrepresentation, much less a deliberate one, about his residence. The character of Mitras representation before the COMELEC is an aspect of the case that the COMELEC completely failed to consider as it focused mainly on the character of Mitras feedmill residence. For this reason, the COMELEC was led into error one that goes beyond an ordinary error of judgment. By failing to take into account whether there had been a deliberate misrepresentation in Mitras COC, the COMELEC committed the grave abuse of simply assuming that an error in the COC was necessarily a deliberate falsity in a material representation. In this case, it doubly erred because there was no falsity; as the carefully considered evidence shows, Mitra did indeed transfer his residence within the period required by Section 74 of the OEC. The respondents significantly ask us in this case to adopt the same faulty approach of using subjective norms, as they now argue that given his stature as a member of the prominent Mitra clan of Palawan, and as a three term congressman, it is highly incredible that a small room in a feed mill has served as his residence since 2008. We reject this suggested approach outright for the same reason we condemned the COMELEC s use of subjective non-legal standards. Mitras feed mill dwelling cannot be considered in isolation and separately from the circumstances of his transfer of residence, specifically, his expressed intent to transfer to a residence outside of Puerto Princesa City to make him eligible to run for a provincial position; his preparatory moves starting in early 2008; his initial transfer through a leased dwelling; the purchase of a lot for his permanent home; and the construction of a

house in this lot that, parenthetically, is adjacent to the premises he leased pending the completion of his house. These incremental moves do not offend reason at all, in the way that the COMELECs highly subjective non -legal standards do. Thus, we can only conclude, in the context of the cancellation proceeding before us, that the respondents have not presented a convincing case sufficient to overcome Mitras evidence of effective transfer to and residence in Aborlan and the validity of his representation on this point in his COC, while the COMELEC could not even present any legally 18 acceptable basis to conclude that Mitras statement in his COC regarding his residence was a misrepresentation. 19 5. The private respondents submit that the Court erred in relying on jurisprudence (Torayno, Sr. v. COMELEC and 20 Asistio v. Hon. Trinidad Pe-Aguirre ) not applicable to the present case. They additionally argue that our ruling in 21 Velasco v. COMELEC should be applied strictly to the present case. These submissions are wrong, as they do not consider the purposes and the specific points of law for which we cited these cases. Torayno, Asistio and Velasco, read in their proper perspective, fully support our findings and conclusions in this case. While Torayno does not share the exact factual situation in the present case, we cited the case to illustrate that it is not unknown in this jurisdiction to have a situation where a candidate, due to legal developments (such as reclassification of a component city to a highly urbanized city), is compelled to transfer residence to allow him to continue his or her public service in another political unit that he or she cannot legally access as a candidate, without a change of residence. In the present case, as in Torayno, Mitra would not have had any legal obstacle to his gubernatorial bid were it not for the reclassification of Puerto Princesa City from a component city to a highly urbanized city. The adjustment he had to make was solely in his residence, as he already had, as a Puerto Princesa City resident, knowledge of and sensitivity to the needs of the Palawan electorate. The factual antecedents of Asistio are likewise not exact ly the same as the facts of the present case, but the Courts treatment of the COC inaccuracies in Asistio fully supports our conclusion that Mitra has established his Aborlan domicile. In Asistio, we held that Asistios mistake in his residency statement in his COC "is not sufficient proof that he 22 has abandoned his domicile in Caloocan City, or that he has established residence outside of Caloocan City." In the present case, Mitra did not commit any inaccuracies in his COC. In fact, any inaccuracy there may have been was committed by third persons on documents (such as the building permit, contract of sale of the Temple property, and his CTC) that do not have any bearing on his candidacy. Under these circumstances, we would apply a harsher rule to Mitra if we conclude that he has not established his Aborlan domicile. Our July 2, 2010 Decision finds commonality with our ruling in Velasco in the recognition, in both cases, of the rule of law. But as we explained in our Decision, the similarity ends there as the facts to which the law was applied differed. We thus ruled: These cases are to be distinguished from the case of Velasco v. COMELEC where the COMELEC cancelled the COC of Velasco, a mayoralty candidate, on the basis of his undisputed knowledge, at the time he filed his COC, that his inclusion and registration as a voter had been denied. His failure to register as a voter was a material fact that he had clearly withheld from the COMELEC; he knew of the denial of his application to register and yet concealed his non-voter status when he filed his COC. Thus, we affirmed the COMELECs action in cancelling his COC. If there is any similarity at all in Velasco and the present case, that similarity is in the recognition in both cases of the rule of law. In Velasco, we recognized based on the law that a basic defect existed prior to his candidacy, leading to his disqualification and the vice-mayor-elects assumption to the office. In the present case, we recognize the validity of Mitras COC, again on the basis of substantive and procedural law, and no occasion arises for the vice 23 governor-elect to assume the gubernatorial post. To summarize, both the COMELEC and private respondents have not shown, through their respective motions, sufficient reasons to compel us to modify or reverse our July 2, 2010 Decision. Other Developments, Issues and Rulings In the course of the Courts consideration of this case, a dissent was entered that contained its own arguments on why our Decision of July 2, 2010 should be reversed. For a complete treatment and presentation of the issues raised, the arguments in the dissent and the refutation are discussed below, separately from the arguments the COMELEC and private respondents themselves raised. First, the dissent asserts that our conclusion that the private respondents evidence failed to s how that Mitra remained a Puerto Princesa City resident is "way off point" since the private respondents showed, as the COMELEC has found, that Mitra could not have stayed and resided at the mezzanine portion of the 24 Maligaya Feedmill located at Barangay Isaub, Aborlan, Palawan. In concluding that Mitra remained to be a Puerto Princesa City resident, the dissent points to the certification of the Punong Barangay of Sta. Monica, Puerto Princesa City attesting that Mitra continued to reside in that barangay. The dissent also argues that the certification of the Punong Barangay of Sta. Monica, supported by the sworn statement of Commodore Hernandez that Mitra resides in that same barangay, deserves equal if not greater weight than the statement of the Punong Barangay of Isaub, Aborlan; the latter supporting statement should provide the "tilting element 25 on the question of Mitras continued residency in his domicile of origin." Second, the dissent faults us for not giving weight to the sworn statements of Maligaya Feed Mills customers and former employees, who testified that Mitra did not reside at the mezzanine portion of the

Feed Mill. It emphasizes the undisputed point that the room at the mezzanine neither has the usual comfort room nor a kitchen area. Additionally, it argues that we conveniently failed to cite any statutory standard with respect to the determination of whether Mitras alleged residence constitutes a "residen ce" as defined by 26 law. Third, the dissent submits that we gravely erred "in giving credence to Mitras gratuitous claims of business interests in Aborlan Palawan" to justify our finding that "Mitras transfer of residence was accomplished not 27 in one single move but, through an incremental process." It notes that Mitra failed to submit material proofs to prove his substantial business interests in Aborlan, Palawan, such as but not limited to - "government issued permits or licenses, tax declarations, or real estate tax payments, property leases and proofs of 28 commercial transactions." The dissent concludes that the suppression of material evidence, which, could directly prove the existence and ownership of the pineapple plantation should be taken against Mitra who 29 claims ownership and existence of these businesses. Fourth, the dissent argues that we erred in unduly relying on the "dubious" lease contract for being antedated. It stresses that the ponencia unreasonably gave credence to the lease contract despite "indicators" of 30 its invalidity, which should have forewarned the Court that the same is not what it purports to be. It also adds that our justification that the lease contract by law may be impliedly renewed from month to month lacks factual basis, since Mitra himself, in his Motion for Reconsideration dated February 13, 2010 before the COMELEC en banc, stated that "he had moved to his own new house physically residing in his newly 31 completed home in Aborlan." Fifth, the dissent implores the Court to apply to the present case our June 15, 2010 Decision in G.R. No. 32 192127, Mario Joel T. Reyes v. Commission on Elections and Antonio V. Gonzales, where we resolved to dismiss Reyes petition via a minute resolution for failure to sufficiently show that the COMELEC gravely abused its discretion in cancelling Reyes COC for his deliberate misre presentation on his transfer and establishment of a new residence in Aborlan, Palawan. Finally, the dissent submits that the mere fact that Mitra won in the May 10, 2010 gubernatorial elections cannot disregard the mandatory one-year residency requirement to qualify as a gubernatorial candidate. It 33 cites our ruling in Velasco v. Commission on Elections, where we ruled that the provisions on material qualifications of elected official should always prevail over the will of the electorate in any given locality; to rule otherwise, would be "to slowly gnaw at the rule of law." These arguments are addressed in the same order they are posed under the topical headings below. The private respondents failed to establish by sufficiently convincing evidence that Mitra remained a Puerto Princesa City resident. The evidence before us, properly considered and carefully reviewed, fully supports our conclusion that the private respondents evidence failed to show that Mitra remained a Puerto Princesa City resident. As discussed now and in our Decision of July 2, 2010, Mitra adequately proved by substantial evidence that he transferred by incremental process to Aborlan beginning 2008, concluding his transfer in early 2009. Given this proof, the burden of evidence lies with the private respondents to establish the contrary. Proof to the contrary is sadly lacking, as the dissents reliance on the Certification of the Punong Barangay of Sta. Monica, Puerto Princesa City is misplaced. The ponencia cannot give full evidentiary weight to the aforementioned Certification which simply stated This is to CERTIFY that ABRAHAM KAHLIL B. MITRA, is a bonafide resident of Purok El Rancho this (sic) Barangay. CERTIFIES FURTHER, that on February 3, 2009, he secure (sic) community tax certificate in this Barangay with 34 CTC No. 16657723. To be sure, a bare certification in a disputed situation cannot suffice to conclusively establish the existence of what the certification alleged. The purported CTC, on the other hand, was neither signed nor thumb-marked by Mitra and, thus, bore no clear indication that it had been adopted and used by Mitra as his own. In our evaluation, we in fact pointedly emphasized that the Puerto Princesa City CTC dated February 3, 2009, if at all, carries little evidentiary value in light of Lilia Camoras (Mitras secretary) positive declaration that she was the one who procured it, while Mitras Aborlan CTC dated March 18, 2009 carried Mitras own signature. Camora fully explained the circumstances under which she secured the CTC of February 3, 2009 and her statement was never disputed. On the other hand, Commodore Hernandez declaration on its face did not controvert Carme E. Caspes sworn statement which adequately proved that Mitras transfer to Aborlan was accomplished, not in a single move, but through an incremental process that started in early 2008 and concluded in March 2009. Thus, we emphasized in our Decision: A sworn statement that has no counterpart in the respondents evidence in so far as it provides details (particularly when read with the statement of Ricardo Temple) is Carme Caspes statement on how Mitras transfer of residence took place. Read together, these statements attest that the transfer was accomplished, not in one single move but, through an incremental process that started in early 2008 and was in place by March 2009, although the house Mitra 35 intended to be his permanent home was not yet then completed.

The COMELEC committed grave abuse of discretion in the appreciation of the evidence and in using wrong considerations which lead it to incorrectly conclude that Mitra is not a resident of Aborlan and that he committed a deliberate misrepresentation in his COC. Contrary to the dissents view, the sworn statements of Maligaya Feedmills customers and former employees that Mitra did not and could not have resided at the mezzanine portion of the Feedmill cannot be given full evidentiary weight, since these statements are in nature of negative testimonies that do not deserve weight and credence in the face of contrary positive evidence, particularly, Carme E. Caspes testimony, cited above, that Mitra did indeed transfer residence in a process that was accomplished, not in a single move, but through an incremental process that started in early 2008. It is well-settled in the rules of evidence that positive testimony is stronger than negative 36 testimony. Additionally, we noted in our Decision that the COMELEC committed grave abuse of discretion, as it failed to correctly appreciate that the evidence clearly pointed to fact that Mitra effectively transferred his residence to Aborlan, viz: Specifically, it was lost on the COMELEC majority (but not on the Dissent) that Mitra made definite, although incremental transfer moves, as shown by the undisputed business interests he has established in Aborlan in 2008; by lease of a dwelling he established his base; by the purchase of a lot for his permanent home; by his transfer of registration as a voter in March 2009; and by the construction of a house all viewed against the backdrop of a bachelor Representative who spent most of his working hours in Manila, who had a whole congressional district to 37 take care of, and who was establishing at the same time his significant presence in the whole Province of Palawan. The dissents observation that the ponencia conveniently failed to cite any statutory standard with respect to the determination of whether Mitras alleged residence constitutes a "residence" as defined by law is simply not 38 true. Our July 2, 2019 Decision was particularly sensitive to the matter of standards, as we noted that the COMELEC used personal and subjective standards in its assessment of Mitras dwelling when, in fact, the law is replete with standards, i.e., the dwelling must be where a person permanently intends to return and to remain. Thus, we held: In considering the residency issue, the COMELEC practically focused solely on its consideration of Mitras residence at Maligaya Feedmill, on the basis of mere photographs of the premises. In the COMELECs view (expressly voiced out by the Division and fully concurred in by the En Banc), the Maligaya Feedmill building could not hav e been Mitras residence because it is cold and utterly devoid of any indication of Mitras personality and that it lacks loving attention and details inherent in every home to make it ones residence. This was the main reason that the COMELEC relied upon for its conclusion. Such assessment, in our view, based on the interior design and furnishings of a dwelling as shown by and examined only through photographs, is far from reasonable; the COMELEC thereby determined the fitness of a dwelling as a persons residence based solely on very personal and subjective assessment standards when the law is replete with standards that can be used. Where a dwelling qualifies as a residence i.e., the dwelling where a person permanently intends to return to and to remain his or her capacity or inclination to decorate the place, or the lack of 39 it, is immaterial. To buttress our finding that the COMELEC used personal and subjective assessment standards instead of the 40 standards prescribed by law, we cited Coquilla v. COMELEC, which characterized the term residence as referring to "domicile" or legal residence, that is "the place where a party actually or constructively has his permanent home, where he, no matter where he may be found at any given time, eventually intends to return and remain (animus manendi). Mitras business interests in Aborlan remain undisputed and are supported by the evidence on record. The dissents view that Mitras business interests are not supported by the evidence on record is not accurate. As discussed above and in our July 2, 2010 Decision, Mitras busin ess interests in Aborlan stand undisputed in the present case. On the one hand, the private respondents failed to present any iota of evidence to disprove Mitras claims that he had significant investments in Aborlan, such as the expiremental pineapple plantation, farm, farmhouse and cock farm. 41 On the other hand, Mitra submitted photographs of his experimental pineapple plantation, farm, farmhouse and cock farm to prove his business interests in Aborlan. Carme E. Caspes and Ricardo Temples statements also corroborated Mitras claim that he owns the pineapple plantation which is located in a property near the Maligaya Feedmill. In this regard, Carme E. Caspes sworn statement pertinently declared: 3. Since 2001, Congressman Mitra has been frequently visiting my farm and we often meet at the Maligaya Feedmill and Farm located along National Hi-way, Sitio Maligaya, Barangay Isaub, Aborlan, Palawan. 4. Sometime in January 2008, Congressman Mitra together with his brother Ramon B. Mitra and his Chief of Staff, Atty. Winston T. Gonzales and some of their friends started an experimental pineapple growing project in a rented farmland located near the Maligaya Feedmill and Farm. 5. At about the time that they started the pineapple project, Congressman Mitra and Ramon Mitra would from time to time stay overnight in the residential portion of Maligaya Feedmill located along National Hiway, Sitio Maligaya, Barangay Isaub, Aborlan, Palawan. 6. Sometime in February 2008, inasmuch as Congressman Abraham Kahlil B. Mitra and Ramon B. Mitra would want to permanently stay in Aborlan, as Congressman Mitra would want to be nearer and have easier access to the entire 2st Congressional District and as they intend to invest in a chicken layer venture in

Aborlan in addition to their pineapple project, we ented onto a contract of lease covering the residential portion of the Maligaya Feedmill as their residence, a chicken layer house and a growing house for chickens. We also agreed that Congressman Mitra has the option to purchase a portion of the Feedmill where he can erect or contruct his own house if he so desires later. 7. Congressman Mitra, pursuant to our agreement, immediately renovated and refurbished the residential part in a portion of the Feedmill and as of March 2008 he started to occupy and reside in the said premises bringing with him some of his personal belongings, clothes and other personal effects. 10. That in January 2009, Congressman Mitra decided to purchase a nearby farmland located behind the Deaf School where he intends to contruct his residential house and farm. However, as he needed time to consummate the sale of the property and to construct his house thereon, we agreed to renew the lease for another year effective February 2, 2009 to February 28, 2010 consisting of, among others, a residential portion of the Maligaya Feedmill. 11. Sometime in May 2009, Congressman Mitra caused the construction of a house and established a game fowl/fighting cock farm in the lot that he purchased but he continued to reside in the Maligaya Feedmill up to 42 the present. The photographs of the experimental pineapple plantation, farm, farmhouse and cock farm, coupled with the sworn statements of Carme E. Caspe and Ricardo Temple, substantially prove the existence of Mitras business interests in Aborlan. Thus, Mitras failure to submit permits o r licenses, tax declarations, real estate tax payments and other proofs of commercial transactions does not negate the fact that he has substantial business interests in Aborlan as he claims. 43 Incidentally, the dissents invocation of the adverse presumptio n of suppression of evidence is erroneous, since it 44 does not arise when the evidence is at the disposal of both parties. In the present case, the required proofs of commercial transactions the dissent cites are public documents which are at the disposal of both parties; they are not solely under the custody of Mitra and can be easily obtained from the municipal offices of Aborlan had the private respondents been minded to do so. The bottom line is that no such evidence was ever presented in this case, and none can and should be considered at this point. The validity or invalidity of the lease contract is not determinative of question of Mitras residence in Aborlan. Beyond the arguments raised about the invalidity of the lease contract, what is significant for purposes of this case is the immateriality of the issue to the present case. As we emphasized in our Decision: The validity of the lease contract, however, is not the issue before us; what concerns us is the question of whether Mitra did indeed enter into an agreement for the lease, or strictly for the use, of the Maligaya Feedmill as his residence (while his house, on the lot he bought, was under construction) and whether he indeed resided there. The notarys compliance with the notarial law likewise assumes no materiality as it is a defect not imputable to Mit ra; what 45 is important is the parties affirmation before a notary public of the contracts genuineness and due execution. The dissents thesis that Mitras allegation in his Motion for Reconsideration (dated February 13, 2010) before the COMELEC en banc that he had already transferred to the newly constructed house in Aborlan negates the proposition that the lease agreement is extendible from month to month - is misleading. The significance of Mitras statement in his Motion for Reconsideration that he had already transferred to his newly constructed house in Aborlan must not be read in isolation; it must be appreciated under the backdrop of Mitras explicit i ntention to make Aborlan his permanent residence through an incremental transfer of residence, as evidenced by the following: (1) his initial transfer through the leased dwelling at the mezzanine portion of the Maligaya Feedmill; (2) the purchase of a lot for his permanent home; and (3) the construction of a house on this lot which is adjacent to the premises he was leasing pending the completion of his house. All these should of course be read with the establishment of Mitras business interest in Aborlan and his transfer of registration as a voter. Reyes v. Commission on Elections is not applicable in the present case. In invoking the applicability of our June 15, 2010 ruling in Reyes v. Commission on Elections, the dissent cites the "explanatory note" penned by Justice Conchita Carpio-Morales recommending the dismissal of Reyes petition. The explanatory note states: To successfully effect a change of domicile, one must demonstrate (1) actual removal or change of domicile; (2) a bona fide intention of abandoning the former place of residence and establishing a new one; and (3) definite acts which correspond with the purpose. Public respondent committed no grave abuse of discretion in finding that the petitioner had not sufficiently established a change of his domicile from Coron, Palawan, his domicile of origin, to Aborlan, Palawan, his supposed domicile of choice, for failure to show, among others things, (1) actual presence at Aborlan, Palawan, and (2) abandonment of his residence at Coron, Palawan. It thus correctly relied on the Courts pronouncement in Dumpit -Michelena v. Boado that without clear and positive proof of the concurrence of the requirements for a change of domicile, the domicile of origin continues.

Reading Section 78 of the Omnibus Election Code with the constitutional qualifications for a Member of the House of Representatives, petitioners false representation in his COC regarding his residence, which affects his qualifications, 46 gave cause for the COMELEC to cancel the same. On June 15, 2010, the Court issued a Minute Resolution dismissing Reyes petition, which states: The Court Resolved to DISMISS the petition for failure thereof to sufficiently show that any grave abuse of discretion was committed by the Commission on Elections in rendering the challenged resolutions which, on the contrary, 47 appear to be in accord with the facts and applicable law and jurisprudence. This Resolution found no grave abuse of discretion and upheld the March 25, 2010 Resolution of the COMELEC 48 49 Second Division and May 7, 2010 Resolution of the COMELEC en banc. In this March 25, 2010 Resolution, the COMELEC Second Division found: An evaluation, however, of the evidence presented by the parties vis--vis the three requirements for a successful change of domicile would show that the petitioner is correct. First, the alleged residence of respondent is a mere beach house or a lodging house with a roof made of pawid as shown in the Declaration of Real Property of Clara Espiritu Reyes, the wife of the respondent. This description of the property is confirmed by two photographs attached to the Memorandum of the petitioner. By its very nature, a beach house is a mere temporary abode, a lodging house where people stay merely as transients. It is not meant to be a permanent place to live in. As the Supreme Court declared in Dumpit Michelena v. Boado, a beach house is at most a place of temporary relaxation and it can hardly be considered a place of residence. With this kind of property, it can scarcely be said that respondent has the intention of remaining there permanently or for an indefinite period of time. Second, respondent has failed to show actual presence at his domicile of choice. Respondent himself admitted that he goes only to Aborlan whenever he gets reprieves from work as most of the time he stays at Puerto Princesa City, where he also resides with his wife. His witnesses also confirm this saying that all Palaweos know that the office of the governor is at the capitol of Puerto Princesa City, where respondent and his wife stay if there is work at the office. However, considering that Aborlan is only about an hours away from Puerto Princesa, it is odd that respondent and his wife never go home to Aborlan after office hours if he intended to establish his domicile of choice in the said municipality. It is also unusual that respondents wife still stays at Puerto Princesa City while she works as manager of Palawan Agricultural and Animal Husbandy Corporation, which is based in Aborlan. This conduct is not indicative of an intent to establish their domicile at Aborlan. Third, respondent failed to show that he already cut his ties with Coron, Palawan as his domicle. Although respondent declared that as early as 2008, he has already transferred his domicile at Aborlan, still he secured his Community Tax Certificate (CTC) for the year 2009 at Coron. Respondent tried to wiggle out from this tight spot by explaining that it was secured by his secretary, who through force of habit inadvertently got it for him. However, such explanation proved futile when respondent was confronted with the fact that he still used the said CTC in establishing his identity when he signed a Special Power of Attorney on January 12, 2009 and when he signed a contract in behalf of the Palawan Provincial Government on August 10, 2009 even when he has supposedly secured another CTC from Aborlan on April 7, 2009. Thus, even in August of 2009, less than a year prior to the May 10, 2010 election, respondent still portrayed himself as a resident of Coron. The intention then to abandon the said place as his domicile is wanting. Based on the foregoing discussions alone, it is at once apparent the three-point requirements for the abandonment of 50 a domicile and the establishment of a new one do not concur in the case of the respondent. Contrary to the dissents view, no parallelism can be drawn between this ruling and the present case, so that this ruling cannot apply to the latter. First, the dissents citation of Justice Carpio-Morales explanatory note recommending the dismissal of Reyes petition cannot be considered a precedent that should be made applicable to the present case. The explanatory note, while reflective of the Courts thinking, is not a decision nor an opinion of the Court. It remains what its description connotes an explanatory note provided by one Justice and approved by the Court and nothing more; what binds the Court is its pronouncement that no grave abuse of discretion transpired in the COMELECs consideration of the case. Under this legal situation, what assumes significance are the COMELEC Resolutions that the Court effectively upheld when it issued the June 15, 2010 Minute Resolution dismissing Reyes petition. Second, the factual circumstances in Reyes are entirely different from the present case; no parallelism can be drawn so that the application of the ruling in Reyes cannot be bodily lifted and applied to Mitra. In Reyes, the COMELEC ruled that Reyes committed a material misrepresentation in his COC when he declared that his residence is Tigman, Aborlan, Palawan and that he is eligible for the office he seeks to be elected to. The COMELEC so concluded after it found that the evidence showed that Reyes failed to prove that (1) he had the intention to remain permanently in Aborlan since his alleged residence is a mere beach house which by its very nature is a temporary place of residence 51 as held by the Court in Dumpit Michelana v. Boado; 2) he had actual presence at his domicile of choice; and (3) that he had already transferred from his domicile (Coron, Palawan) to Tigman, Aborlan Palawan. The COMELEC even found, on the matter of CTC, that Reyes consistently used his Coron CTC in his transactions, thus negating his explanation that the CTC was procured without his knowledge and consent. In contrast, we found in the present case that Mitra did not deliberately misrepresent his Aborlan residence to deceive or mislead the Palawan electorate since he in fact adduced positive evidence of transfer of residence which the private respondents failed to sufficiently controvert. In this regard, we noted with emphasis that Mitra undertook

"incremental moves" to his new domicile in Aborlan as evidenced by the following: (1) his expressed intent to transfer to a residence outside of Puerto Princesa City to make him eligible for a provincial position; (2) his preparatory moves starting in early 2008; (3) the transfer of registration as a voter in March 2009; (4) his initial transfer through a leased dwelling at Maligaya Feedmill; (5) the purchase of a lot for his permanent home; and (6) the construction of a house 52 on the said lot which is adjacent to the premises he was leasing pending the completion of his house. The issue regarding Mitras CTC, too, was satisfactorily explained and is far different from the obtaining fac ts in the case of Reyes. No occasion exists to apply the rule of the primacy of the will of people since Mitra did not commit any deliberate misrepresentation; in fact, he proved that he transferred his residence to Aborlan within the period required by law. The dissent contends that Mitras election as Governor "did not render the present case moot and academic or lift the 53 statutory one-year residency requirement for him to qualify for the gubernatorial post." The dissent apparently perceives Mitras electoral victory as a major consideration in our Decision of July 2, 2010. Unfortunately, the dissent is mistaken in its appreciation of the thrust of our Decision; we in fact ruled that no reason exists to appeal to the primacy of the electorates will since Mitra did not commit any material misrepresentation in his COC. We said: We have applied in past cases the principle that the manifest will of the people as expressed through the ballot must be given fullest effect; in case of doubt, political laws must be interpreted to give life and spirit to the popular mandate. Thus, we have held that while provisions relating to certificates of candidacy are in mandatory terms, it is an established rule of interpretation as regards election laws, that mandatory provisions, requiring certain steps before elections, will be construed as directory after the elections, to give effect to the will of the people. Quite recently, however, we warned against a blanket and unqualified reading and application of this ruling, as it may carry dangerous significance to the rule of law and the integrity of our elections. For one, such blanket/unqualified reading may provide a way around the law that effectively negates election requirements aimed at providing the electorate with the basic information for an informed choice about a candidates eligibility and fitness for office. Short of adopting a clear cut standard, we thus made the following clarification: We distinguish our ruling in this case from others that we have made in the past by the clarification that COC defects beyond matters of form and that involve material misrepresentations cannot avail of the benefit of our ruling that COC mandatory requirements before elections are considered merely directory after the people shall have spoken. A mandatory and material election law requirement involves more than the will of the people in any given locality. Where a material COC misrepresentation under oath is made, thereby violating both our election and criminal laws, we are faced as well with an assault on the will of the people of the Philippines as expressed in our laws. In a choice between provisions on material qualifications of elected officials, on the one hand, and the will of the electorate in any given locality, on the other, we believe and so hold that we cannot choose the electorate will. Earlier, Frivaldo v. COMELEC provided the following test: [T]his Court has repeatedly stressed the importance of giving effect to the sovereign will in order to ensure the survival of our democracy. In any action involving the possibility of a reversal of the popular electoral choice, this Court must exert utmost effort to resolve the issues in a manner that would give effect to the will of the majority, for it is merely sound public policy to cause elective offices to be filled by those who are the choice of the majority. To successfully challenge a winning candidate's qualifications, the petitioner must clearly demonstrate that the ineligibility is so patently antagonistic to constitutional and legal principles that overriding such ineligibility and thereby giving effect to the apparent will of the people would ultimately create greater prejudice to the very democratic institutions and juristic traditions that our Constitution and laws so zealously protect and promote. [Emphasis supplied.] With the conclusion that Mitra did not commit any material misrepresentation in his COC, we see no reason in this case to appeal to the primacy of the electorates will. We cannot deny, however, that the people of Palawan have spoken in an election where residency qualification had been squarely raised and their voice has erased any doubt 54 about their verdict on Mitras qualifications. Under these terms, we cannot be any clearer. WHEREFORE, premises considered, we resolve to DENY with FINALITY, for lack of merit, the motions for reconsideration and motion for oral arguments now before us. Let entry of judgment be made in due course. SO ORDERED. H. HARRY L. ROQUE, JR., JOEL R. BUTUYAN, G.R. No. 188456 ROMEL R. BAGARES, ALLAN JONES F. LARDIZABAL, GILBERT T. ANDRES, IMMACULADA D. GARCIA, ERLINDA T. Present: MERCADO, FRANCISCO A. ALCUAZ, MA. AZUCENA P. MACEDA, and ALVIN A. PETERS, PUNO, C.J., * Petitioners, QUISUMBING, - versus YNARES-SANTIAGO, CARPIO, COMMISSION ON ELECTIONS, CORONA, Represented by HON. CHAIRMAN JOSE MELO, CARPIO MORALES, COMELEC SPECIAL BIDS and AWARDS CHICO-NAZARIO,

COMMITTEE, represented by its CHAIRMAN HON. FERDINAND RAFANAN, DEPARTMENT OF BUDGET and MANAGEMENT, represented by HON. ROLANDO ANDAYA, TOTAL INFORMATION MANAGEMENT CORPORATION and SMARTMATIC INTERNATIONAL CORPORATION, Respondents. PETE QUIRINO-QUADRA, Petitioner-in-Intervention. SENATE OF THE PHILIPPINES, represented by its President, JUAN PONCE ENRILE, Movant-Intervenor.

VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, and ABAD, JJ.

Promulgated: September 10, 2009 x-----------------------------------------------------------------------------------------x DECISION VELASCO, JR., J.: In a democratic system of government, the peoples voice is sovereign. Corollarily, choosing through the ballots the men and women who are to govern the country is perhaps the highest exercise of democracy. It is thus the interest of the state to insure honest, credible and peaceful elections, where the sanctity of the votes and the secrecy of the ballots are safeguarded, where the will of the electorate is not frustrated or undermined. For when the popular will itself is subverted by election irregularities, then the insidious seeds of doubt are sown and the ideal of a peaceful and smooth transition of power is placed in jeopardy. To automate, thus breaking away from a manual system of election, has been viewed as a significant step towards clean and credible elections, unfettered by the travails of the long wait and cheating that have marked many of our electoral exercises. The Commission on Elections (Comelec), private respondents, the National Computer Center and other computer wizards are confident that nationwide automated elections can be successfully implemented. Petitioners and some skeptics in the information technology (IT) industry have, however, their reservations, which is quite understandable. To them, the automated election system and the untested technology Comelec has chosen and set in motion are pregnant with risks and could lead to a disastrous failure of elections. Comelec, they allege, would not be up to the challenge. Cheating on a massive scale, but this time facilitated by a machine, is perceived to be a real possibility. In this petition for certiorari, prohibition and mandamus with prayer for a restraining order and/or preliminary injunction, petitioners H. Harry L. Roque, Jr., et al., suing as taxpayers and concerned citizens, seek to nullify respondent Comelecs award of the 2010 Elections Automation Project (automation project) to the joint venture of [1] Total Information Management Corporation (TIM) and Smartmatic International Corporation (Smartmatic) and to permanently prohibit the Comelec, TIM and Smartmatic from signing and/or implementing the corresponding contract-award. By Resolution of July 14, 2009, the Court directed the respondents as well as the University of the Philippines (UP) Computer Center, National Computer Center (NCC) and Information Technology Foundation of the Philippines (Infotech, hereinafter) to submit their collective or separate comments to the petition on or before July 24, 2009. Before any of the comments could actually be filed, Atty. Pete Quirino-Quadra sought leave to intervene. In [3] another resolution, the Court allowed the intervention and admitted the corresponding petition-in-intervention.
[2]

On July 29, 2009, the Court heard the principal parties in oral arguments which was followed by the submission of their and the resource persons instructive, albeit clashing, memoranda. The Senate, through the Senate President, would later join the fray via a Motion for Leave to Intervene. In a Resolution of August 25, 2009, the Court admitted the Senates comment-in-intervention. From the petition, the separate comments thereon, with their respective annexes, and other pleadings, as well as from admissions during the oral arguments, the Court gathers the following facts: On December 22, 1997, Congress enacted Republic Act No. (RA) 8436 authorizing the adoption of an automated election system (AES) in the May 11, 1998 national and local elections and onwards. The 1998, 2001, and 2004 national and local polls, however, came and went but purely manual elections were still the order of the [4] day. On January 23, 2007, the amendatory RA 9369 was passed authorizing anew the Comelec to use an AES. Of particular relevance are Sections 6 and 10 of RA 9369 originally Secs. 5 and 8, respectively of RA 8436, as amendedeach defining Comelecs specific mandates insofar as automated electi ons are concerned. The AES was not utilized in the May 10, 2000 elections, as funds were not appropriated for that purpose by Congress and due to time constraints. RA 9369 calls for the creation of the Comelec Advisory Council (CAC). CAC is to recommend, among [6] other functions, the most appropriate, applicable and cost-effective technology to be applied to the AES. To be [7] created by Comelec too is the Technical Evaluation Committee (TEC) which is tasked to certify, through an established international certification committee, not later than three months before the elections, by categorically stating that the AES, inclusive of its hardware and software components, is operating properly and accurately based [8] on defined and documented standards. In August 2008, Comelec managed to automate the regional polls in the Autonomous Region of Muslim [9] [10] Mindanao (ARMM), using direct recording electronics (DRE) technology in the province of Maguindanao; and the [11] optical mark reader/recording (OMR) system, particularly the Central Count Optical Scan (CCOS), in the rest of [12] ARMM. What scores hailed as successful automated ARMM 2008 elections paved the way for Comelec, with [13] some prodding from senators, to prepare for a nationwide computerized run for the 2010 national/local polls, with the many lessons learned from the ARMM experience influencing, according to the NCC, the technology selection for [14] the 2010 automated elections. Accordingly, in early March 2009, the Comelec released the Request for Proposal (RFP), also known as Terms of Reference (TOR), for the nationwide automation of the voting, counting, transmission, consolidation and canvassing of votes for the May 10, 2010 Synchronized National and Local Elections. What is referred to also in the RFP and other contract documents as the 2010 Elections Automation Project (Automation Project) consists of three elaborate components, as follows: Component 1: Paper-Based AES. 1-A. Election Management System (EMS); 1-B Precinct-Count Optic [16] Scan (PCOS) System and 1-C. Consolidation/Canvassing System (CCS); Component 2: Provision for Electronic Transmission of Election Results using Public Telecommunications Network; and Component 3: Overall Project Management And obviously to address the possibility of systems failure, the RFP required interested bidders to submit, [17] [18] among other things: a continuity plan and a back-up plan. Under the two-envelope system designed under the RFP, each participating bidder shall submit, as part [20] of its bid, an Eligibility Envelope that shouldinter alia establish the bidders eligibility to bid. On the other hand, the second envelope, or the Bid Envelope itself, shall contain two envelopes that, in turn, shall contain the technical [21] proposal and the financial proposal, respectively. Subsequently, the Comelec Special Bids and Awards Committee (SBAC), earlier constituted purposely for the aforesaid project, caused the publication in different newspapers of the Invitation to Apply for Eligibility and to [22] [23] Bid for the procurement of goods and services to be used in the automation project. Meanwhile, Congress enacted RA 9525 appropriating some PhP 11.3 billion as supplemental budget for the May 10, 2010 automated national and local elections. Of the ten (10) invitation-responding consortia which obtained the bid documents, only seven (7) submitted [24] sealed applications for eligibility and bids which, per Bid Bulletin No. 24, were to be opened on a pre-set date,
[19] [15] [5]

following the convening of the pre-bid conference. Under the RFP, among those eligible to participate in the bidding are manufacturers, suppliers and/or distributors forming themselves into a joint venture. A joint venture is defined as a group of two or more manufacturers, suppliers and/or distributors that intend to be jointly and severally responsible or [25] liable for a particular contract. Among the submitted bids was that of the joint venture (JV) of TIM and Smartmatic, the former incorporated under the Corporation Code of the Philippines. Smartmatic, on the other hand, was organized under the laws [26] of Barbados. For a stated amount, said JV proposed to undertake the whole automation project, inclusive of the delivery of 82,200 PCOS machines. After the conclusion of the eligibility evaluation process, only three [27] consortia were found and thus declared as eligible. Further on, following the opening of the passing bidders Bid Envelope and evaluating the technical and financial proposals therein contained, the SBAC, per its Res. No. 09-001, [28] s.-2009, declared the above-stated bid of the JV of TIM-Smartmatic as the single complying calculated bid. As required by the RFP, the bid envelope contained an outline of the joint ventures back -up and continuity or [29] contingency plans, in case of a systems breakdown or any such eventuality which shall result in the delay, obstruction or nonperformance of the electoral process. After declaring TIM-Smartmatic as the best complying bidder, the SBAC then directed the joint venture to undertake post-qualification screening, and its PCOS prototype machinesthe Smarmatic Auditable Electronic [30] System (SAES) 1800to undergo end-to-end testing to determine compliance with the pre-set criteria. In its Memorandum of June 01, 2009, on the Subject: Systems Evaluation Consolidated Report and Status Report on the Post-Qualification Evaluation Procedures, the SBAC Technical Working Group (TWG) stated that it was undertaking a 4-day (May 27 to May 30, 2009) test evaluation of TIM and Smartmatics proposed PCOS project machines. Its conclusion: The demo systems presented PASSED all tests as required in the 26-item criteria [31] specified in the [RFP] with 100% accuracy rating. The TWG also validated the eligibility, and technical and financial qualifications of the TIM-Smartmatic joint venture. On June 9, 2009, Comelec, upon the recommendation of its SBAC, the CAC and other stakeholders, issued [32] Resolution No. (Res.) 8608 authorizing the SBAC to issue, subject to well-defined conditions, the notice of award and notice to proceed in favor of the winning joint venture. Soon after, TIM wrote Comelec expressing its desire to quit the JV partnership. In time, however, the parties were able to patch up what TIM earlier described as irreconcilable differences between partners. What followed was that TIM and Smartmatic, pursuant to the Joint Venture Agreement (JVA), caused the incorporation of a joint venture corporation (JVC) that would enter into a contract with the Comelec. On July 8, 2009, the Securities and Exchange Commission issued a certificate of incorporation in favor of Smartmatic TIM Corporation. Two days after, or on July 10, 2009, Comelec and Smartmatic TIM Corporation, as provider, executed a [34] contract for the lease of goods and services under the contract for the contract amount of PhP 7,191,484,739.48, payable as the Goods and Services are delivered and/or progress is made in accordance [with pre -set] Schedule of [35] [36] Payments. On the same date, a Notice to Proceed was sent to, and received by, Smartmatic TIM Corporation. Meanwhile, or on July 9, 2009, petitioners interposed the instant recourse which, for all intents and purposes, impugns the validity and seeks to nullify the July 10, 2009 Comelec-Smartmatic-TIM Corporation automation contract adverted to. Among others, petitioners pray that respondents be permanently enjoined from implementing the automation project on the submission that: PUBLIC RESPONDENTS COMELEC AND COMELEC-SBAC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN AWARDING THE 2010 ELECTIONS AUTOMATION PROJECT TO PRIVATE RESPONDENTS TIM AND SMARTMATIC FOR THE FOLLOWING REASONS: x x x COMELEC DID NOT CONDUCT ANY PILOT TESTING OF THE x x x PCOS MACHINES OFFERED BY PRIVATE RESPONDENTS SMARTMATIC AND TIM, IN VIOLATION OF [RA] 8436 (AS AMENDED BY [RA] 9369) THE [PCOS] MACHINES [THUS] OFFERED BY PRIVATE RESPONDENTS x x x DO NOT SATISFY THE MINIMUM SYSTEM CAPABILITIES SET BY [RA] NO. 8436 (AS AMENDED BY [RA] 9369). PRIVATE RESPONDENTS x x x DID NOT SUBMIT THE REQUIRED DOCUMENTS DURING THE BIDDING PROCESS THAT SHOULD ESTABLISH THE DUE EXISTENCE,
[33]

COMPOSITION, AND SCOPE OF THEIR JOINT VENTURE, IN VIOLATION OF THE SUPREME COURTS HOLDING IN INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES, vs. COMELEC (G.R. No. 159139, Jan. 13, 2004). THERE WAS NO VALID JOINT VENTURE AGREEMENT [JVA] BETWEEN PRIVATE RESPONDENTS SMARTMATIC AND TIM DURING THE BIDDING, IN VIOLATION OF THE SUPREME COURTS HOLDING IN INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES vs. COMELEC x x x WHICH REQUIRES A JOINT VENTURE TO INCLUDE A COPY OF ITS [JVA] DURING THE BIDDING.

THE ALLEGED JOINT VENTURE COMPOSED OF PRIVATE RESPONDENTS SMARTMATIC AND TIM, DOES NOT SATISFY THE SUPREME COURTS DEFINITION OF A JOINT VENTURE IN INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES vs. COMELEC x x x WHICH REQUIRES A COMMUNITY OF INTEREST IN THE PERFORMANCE OF THE SUBJECT MATTER.

Filed as it was before contract signing, the petition understandably did not implead Smartmatic TIM Corporation, doubtless an indispensable party to these proceedings, an incident that did not escape Comelecs [37] notice. As a preliminary counterpoint, either or both public and private respondents question the legal standing or locus standi of petitioners, noting in this regard that the petition did not even raise an issue of transcendental importance, let alone a constitutional question. As an additional point, respondents also urge the dismissal of the petition on the ground of prematurity, petitioners having failed to avail themselves of the otherwise mandatory built-in grievance mechanism under Sec. 55 in relation to Sec. 58 of RA 9184, also known as the Government Procurement Reform Act, as shall be discussed shortly. PROCEDURAL GROUNDS The Court is not disposed to dismiss the petition on procedural grounds advanced by respondents. Locus Standi and Prematurity It is true, as postulated, that to have standing, one must, as a rule, establish having suffered some actual or threatened injury as a result of the alleged illegal government conduct; that the injury is fairly traceable to the [38] challenged action; and that the injury is likely to be redressed by a favorable action. The prescription on standing, however, is a matter of procedure. Hence, it may be relaxed, as the Court has often relaxed the rule for nontraditional plaintiffs, like ordinary citizens and taxpayers, when the public interest so requires, such as when the [39] matter is of transcendental importance, of overarching significance to society, or of paramount public interest. As [40] we wrote in Chavez v. PCGG, where issues of public importance are presented, there is no necessity to show that the suitor has experienced or is in actual danger of suffering direct and personal injury as the requisite injury is assumed. Petitioners counsel, when queried, hedged on what specific constitutional proscriptions or concepts had been infringed by the award of the subject automation project to Smartmatic TIM Corporation, although he was heard to say that our objection to the system is anchored on the Constitution itself a violation [sic] of secrecy of [41] voting and the sanctity of the ballot. Petitioners also depicted the covering automation contract as constituting an abdication by the Comelec of its election-related mandate under the Constitution, which is to enforce and administer all laws relative to the conduct of elections. Worse still, according to the petitioners, the abdication, with its anti-dummy dimension, is in favor of a foreign corporation that will be providing the hardware [42] and software requirements. And when pressed further, petitioners came out with the observation that, owing in part to the sheer length of the ballot, the PCOS would not comply with Art. V, Sec. 2 of the [43] [44] Constitution prescribing secrecy of voting and sanctity of the ballot. There is no doubt in our mind, however, about the compelling significance and the transcending public importance of the one issue underpinning this petition: the success and the far-reaching grim implications of the failureof the nationwide automation project that will be implemented via the challenged automation contract.

The doctrinal formulation may vary, but the bottom line is that the Court may except a particular case from [45] the operations of its rules when the demands of justice so require. Put a bit differently, rules of procedure are [46] merely tools designed to facilitate the attainment of justice. Accordingly, technicalities and procedural barriers should not be allowed to stand in the way, if the ends of justice would not be subserved by a rigid adherence to the [47] rules of procedure. This postulate on procedural technicalities applies to matters of locus standi and the presently invoked principle of hierarchy of courts, which discourages direct resort to the Court if the desired redress is within the competence of lower courts to grant. The policy on the hierarchy of courts, which petitioners indeed failed to observe, is not an iron-clad rule. For indeed the Court has full discretionary power to take cognizance and assume jurisdiction of special civil actions for certiorari and mandamus filed directly with it for exceptionally compelling [48] [49] reasons or if warranted by the nature of the issues clearly and specifically raised in the petition. The exceptions that justify a deviation from the policy on hierarchy appear to obtain under the premises. The Court will for the nonce thus turn a blind eye to the judicial structure intended, first and foremost, to provide an orderly dispensation of justice.

Hierarchy of Courts At this stage, we shall dispose of another peripheral issue before plunging into the core substantive issues tendered in this petition. Respondents contend that petitioners should have availed themselves of the otherwise mandatory protest mechanism set forth in Sections 55 and 58 of the procurement law (RA 9184) and the counterpart provisions found in its Implementing Rules and Regulations (IRR)-A before seeking judicial remedy. Insofar as relevant, Sec. 55 of RA 9184 provides that decisions of the bids and awards committee (BAC) in all stages of procurement may be protested, via a verified position paper, to the head of the procuring agency. On the other hand, the succeeding Sec. 58 states that court action may be resorted to only after the protest contemplated in Sec. 55 shall have been completed. Petitioners except. As argued, the requirement to comply with the protest mechanism, contrary to what may have [50] been suggested in Infotech, is imposed on the bidders. Petitioners position is correct. As a matter of common sense, only a bidder is entitled to receive a notice of the protested BAC action. Only a losing bidder would be aggrieved by, and ergo would have the personality to challenge, such action. This conclusion finds adequate support from the ensuing provisions of the aforesaid IRR-A: 55.2. The verified position paper shall contain the following documents: a) The name of bidder; b) The office address of the bidder x x x.

SUBSTANTIVE ISSUES We now turn to the central issues tendered in the petition which, in terms of subject matter, revolved around two concerns, viz: (1) the Joint Venture Agreement (JVA) of Smartmatic and TIM; and (2) the PCOS machines to be used. Petitioners veritably introduced another issue during the oral arguments, as amplified in their memorandum, i.e. the constitutionality and statutory flaw of the automation contract itself. The petition-inintervention confined itself to certain features of the PCOS machines. The Joint Venture Agreement: Its Existence and Submission The issue respecting the existence and submission of the TIM-Smartmatic JVA does not require an extended disquisition, as repairing to the records would readily provide a satisfactory answer. We note in fact that the petitioners do not appear to be earnestly pressing the said issue anymore, as demonstrated by their counsels practically cavalier discussion thereof during the oral argument. When reminded, for instance, of private respondents insistence on having in fact submitted their JVA dated April 23, 2009, petitioners counsel responded as follows: We knew your honor that there was, in fact, a joint venture agreement filed. However, because of the belated discovery that [there] were irreconcilable differences, we then made a view that this joint venture agreement was a sham, at best pro formabecause it did not contain all the required stipulations in order [51] to evidence unity of interest x x x.

Indeed, the records belie petitioners initial posture that TIM and Smartmatic, as joint venture partners, did not include in their submitted eligibility envelope a copy of their JVA. The SBACs Post Qualification Evaluation Report (Eligibility) on TIM-Smartmatic, on page 10, shows the following entry: Valid Joint Venture Agreement, stating among things, that the members are jointly and severally liable for the whole obligation, in [52] case of joint venture Documents verified compliance. Contrary to what the petitioners posit, the duly notarized JVA, as couched, explained the nature and [53] the limited purpose of the joint venture and expressly defined, among other things, the composition, scope, [54] and the 60-40 capital structure of the aggroupment. The JVA also contains provisions on the [55] [56] [57] management and division of profits. Article 3 of the JVA delineates the respective participations and responsibilities of the joint venture partners in the automation project. Given the foregoing perspective, the Court is at a loss to understand how petitioners can assert that the Smartmatic-TIM consortium has failed to prove its joint venture existence and/or to submit evidence as would enable the Comelec to know such items as who it is dealing with, which between the partners has control over the decision-making process, the amount of investment to be contributed by each partner, the parties shares in the profits and like details. Had petitioners only bothered to undertake the usual due diligence that comes with good judgment and examined the eligibility envelope of the Smartmatic-TIM joint venture, they would have discovered that their challenge to and arguments against the joint venture and its JVA have really no factual basis. It may be, as petitioners observed, that the TIM-Smartmatic joint venture remained an unincorporated aggroupment during the bid-opening and evaluation stages. It ought to be stressed, however, that the fact of non-incorporation was without a vitiating effect on the validity of the tender offers. For the bidding ground rules, as spelled out primarily in the RFP and the clarificatory bid bulletins, does not require, for bidding purposes, that there be an incorporation of the bidding joint ventures or consortiums. In fact, Bid Bulletin Nos. 19 and 20 recognize the existence and the acceptability of proposals of unincorporated joint ventures. In response to a poser, for example, regarding the 60% Filipino ownership requirement in a joint venture arrangement, the SBAC, in its Bid Bulletin No. 22, stated: In an unincorporated joint venture, determination of the required Filipino participation may be made by examining the terms and conditions of the [JVA] and other supporting financial documents submitted by the joint venture. (Emphasis ours.) Petitioners, to be sure, have not shown that incorporation is part of the pass/fail criteria used in determining eligibility . Petitioners have made much of the Courts ruling in Information Technology Foundation of [58] the Philippines [Infotech] v. Comelec, arguing in relation thereto that the partnership of Smartmatic and TIM does not meet the Courts definition of a joint venture which requires community of interest in the performance of the subject matter. Petitioners invocation of Infotech is utterly misplaced. Albeit Infotech and this case are both about modernizing the election process and bidding joint ventures, the relevant parallelism ends there. Cast as they are against dissimilar factual milieu, one cannot plausibly set Infotech side with and contextually apply to this case theratio of Infotech. Suffice it to delve on the most glaring of differences. In Infotech, the winning bid pertained to the consortium of Mega Pacific, a purported joint venture. Extant records, however, do not show the formation of such joint venture, let alone its composition. To borrow from the ponencia of then Justice, later Chief Justice, Artemio Panganiban, there is no sign whatsoever of any [JVA], consortium agreement [or] memorandum agreement x x [59] x executed among the members of the purported consortium . There was in fine no evidence to show that the alleged joint venture partners agreed to constitute themselves into a single entity solidarily responsible for the entirety of the automation contract. Unlike the purported Mega Pacific consortium in Infotech, the existence in this case of the bidding joint venture of Smarmatic and TIM is properly documented and spread all over the bid documents. And to stress, TIM and Smartmatic, in their JVA, unequivocally agreed between themselves to perform their respective undertakings. And over and beyond their commitments to each other, they undertook to incorporate, if called for by the bidding results, a JVC that shall be solidarily liable with them for any actionable breach of the automation contract. In Infotech, the Court chastised the Comelec for dealing with an entity, the full identity of which the poll body knew nothing about. Taking a cue from this holding, petitioners tag the TIM-Smartmatic JVA as flawed and as one that would leave the Comelec hanging for the non -inclusion, as members of the joint venture, of three IT providers. The three referred to are Jarltech International, Inc. (Jarltech), a subsidiary of Smartmatic that manufactures the Smartmatic voting machines; Dominion Voting Systems (Domino), the inventor of said PCOS machines; and 2GO Transportation System Corporation (2GO), the subcontractor responsible for the distribution of the PCOS machines throughout the country.

Petitioners beef against the TIM-Smartmatic JVA is untenable. First off, the Comelec knows the very entities whom they are dealing with, which it can hold solidary liable under the automation contract, should there be contract violation. Secondly, there is no requirement under either RA 8436, as amended, or the RFP, that all the suppliers, manufacturers or distributors involved in the transaction should be part of the joint venture. On the contrary, the [60] Instruction to Biddersas petitioners themselves admit allows the bidder to subcontract portions of the goods or [61] services under the automation project. To digress a bit, petitioners have insisted on the non-existence of a bona fide JVA between TIM and Smarmatic. Failing to gain traction for their indefensible posture, they would thrust on the Court the notion of an invalid joint venture due to the non-inclusion of more companies in the existing TIM-Smartmatic joint venture. The irony is not lost on the Court. This brings us to the twin technical issues tendered herein bearing on the PCOS machines of Smartmatic. At its most basic, the petition ascribes grave abuse of discretion to the Comelec for, among other things, awarding the automation project in violation of RA 8436, as amended. Following their line, no pilot test of the PCOS technology Smartmatic-TIM offered has been undertaken; hence, the Comelec cannot conduct a nationwide automation of the 2010 polls using the machines thus offered. Hence, the contract award to Smartmatic-TIM with their untested PCOS machines violated RA 8436, as amended by RA 9369, which mandates that with respect to the May 2010 elections and onwards, the system procured must have been piloted in at least 12 areas referred to in Sec. 6 of RA 8436, as amended. What is more, petitioners assert, private respon dents PCOS machines do not satisfy the minimum system capabilities set by the same law envisaged to ensure transparent and credible voting, counting and canvassing of votes. And as earlier narrated, petitioners would subsequently add the abdication angle in their bid to nullify the automation contract. Pilot Testing Not Necessary Disagreeing, as to be expected, private respondents maintain that there is nothing in the applicable law requiring, as a pre-requisite for the 2010 election automation project award, that the prevailing bidders automation system, the PCOS in this case, be subjected to pilot testing. Comelec echoes its co-respondents stance on pilot testing, with the added observation that nowhere in the statutory provision relied upon are th e words pilot testing [62] used. The Senates position and its supporting arguments match those of private respondents. The respondents thesis on pilot testing and the logic holding it together are well taken. There can be no argument about the phrase pilot test not being found in the law. But does it necessarily follow that a pilot test is absolutely not contemplated in the law? We repair to the statutory provision petitioners cited as requiring a pilot run, referring to Sec. 6 of RA 8436, as amended by RA 9369, reading as follows: Sec. 5. Authority to use an Automated Election System.- To carry out the above statedpolicy, the [Comelec], x x x is hereby authorized to use an automated election system or systems in the same election in different provinces, whether paper-based or a direct recording electronic election system as it may deem appropriate and practical for the process of voting, counting of votes and canvassing/consolidation and transmittal of results of electoral exercises: Provided, that for the regular national and local elections, which shall be held immediately after the effectivity of this Act, the AES shall be used in at least two highly urbanized cities and two provinces each in Luzon, Visayas, and Mindanao to be chosen by the [Comelec]: Provided, further, That local government units whose officials have been the subject of administrative charges within sixteen (16) month prior to the May 14, 2007 elections shall not be chosen. Provided, finally, That no area shall be chosen without the consent of the Sanggunian of the local government unit concerned. The term local government unit as used in this provision shall refer to a highly urbanized city or province. In succeeding regular national or local elections, the AES shall be implemented. (Emphasis and underscoring added.) RA 9369, which envisages an AES, be it paper-based or direct-recording electronic, took effect in the [63] second week of February 2007 or thereabout. The regular national and local elections referred to after the effectivity of this Act can be no other than the May 2007 regular elections, during which time the AES shall, as the law is worded, be used in at least two highly urbanized cities and provinces in Luzon, Visayas and Mindanao. The Court takes judicial notice that the May 2007 elections did not deploy AES, evidently due to the mix of time and funding constraints. To the petitioners, the underscored portion of the aforequoted Sec. 6 of RA 8436 is the pilot-testing provision that Comelec failed to observe.

We are not persuaded. From the practical viewpoint, the pilot testing of the technology in question in an actual, scheduled electoral exercise under harsh conditions would have been the ideal norm in computerized system implementation. The underscored proviso of Sec. 6 of RA 8436 is not, however, an authority for the proposition that the pilot testing of the PCOS in the 2007 national elections in the areas thus specified is an absolute must for the machines use in the 2010 national/local elections. The Court can concede that said proviso, with respect to the May 2007 elections, commands the Comelec to automate in at least 12 defined areas of the country. But the bottom line is that the required 2007 automation, be it viewed in the concept of a pilot test or not, is not a mandatory requirement for the choice of system in, or a prerequisite for, the full automation of the May 2010 elections. As may be noted, Sec. 6 of RA 8436 may be broken into three essential parts, the first partaking of the nature of a general policy declaration: that Comelec is authorized to automate the entire elections. The second part states that for the regular national and local elections that shall be held in May 2007, Comelec shall use the AES, with an option, however, to undertake automation, regardless of the technology to be selected, in a limited area or, to be more precise, in at least two highly urbanized cities and two provinces each in Luzon, Visayas, and Mindanao to be chosen by the Comelec. On the other hand, the last part, phrased sans reference to the May 2007 elections, commands thus: [I]n succeeding regular national or local elections, the [automated election system] shall be implemented. Taken in its proper context, the last part is indicative of the legislative intent for the May 2010 electoral exercise to be fully automated, regardless of whether or not pilot testing was run in the 2007 polls. To argue that pilot testing is a condition precedent to a full automation in 2010 would doubtless undermine the purpose of RA 9369. For, as aptly observed during the oral arguments, if there was no political exercise in May 2007, the country would theoretically be barred forever from having full automation. Sec. 6 of the amended RA 8436, as couched, therefore, unmistakably conveys the idea of unconditional full automation in the 2010 elections. A construal making pilot testing of the AES a prerequisite or condition sine qua non to putting the system in operation in the 2010 elections is tantamount to reading into said section something beyond the clear intention of Congress, as expressed in the provision itself. We reproduce with approval the following excerpts from the comment of the Senate itself: The plain wordings of RA 9369 (that amended RA 8436) commands that the 2010 elections shall be fully automated, and such full automation is not conditioned on pilot testing in the May 2007 elections. Congress merely gave COMELEC the flexibility to partially use the AES in [64] some parts of the country for the May 2007 elections. Lest it be overlooked, an AES is not synonymous to and ought not to be confused with the PCOS. Sec. 2(a) of RA 8436, as amended, defines an AES as a system using appropriate technology which has been demonstrated in the voting, counting, consolidating, canvassing and transmission of election results, and other electoral processes . On the other hand, PCOS refers to a technology wherein an optical ballot scanner, into which optical scan paper [65] ballots marked by hand by the voter are inserted to be counted. What may reasonably be deduced from these definitions is that PCOS is merely one of several automated voting, counting or canvassing technologies coming within the term AES, implying in turn that the automated election system or technology that the Comelec shall adopt in future elections need not, as a matter of mandatory arrangement, be piloted in the adverted two highly urbanized cities and provinces. In perspective, what may be taken as mandatory prerequisite for the full automation of the 2010 regular national/ local elections is that the system to be procured for that exercise be a technology tested either here or abroad. The ensuing Section 8 of RA 8436, as amended, says so. SEC 12. Procurement of Equipment and Materials . To achieve the purpose of this Act, the Commission is authorized to procure, xxx, by purchase, lease, rent or other forms of acquisition, supplies, equipment, materials, software, facilities, and other services, from local or foreign sources xxx. With respect to the May 10, 2010 elections and succeeding electoral exercises, the system procured must have demonstrated capability and been successfully used in prior electoral exercise here or abroad. Participation in the 2007 pilot exercise shall not be conclusive of the systems fitness. (Emphasis supplied). While the underscored portion makes reference to a 2007 pilot exercise, what it really exacts is that, for the automation of the May 2010 and subsequent elections, the PCOS or any AES to be procured must have demonstrated its capability and success in either a local or a foreign electoral exercise. And as expressly declared by the provision, participation in the 2007 electoral exercise is not a guarantee nor is it conclusive of the systems

fitness. In this regard, the Court is inclined to agree with private respondents interpretation of the underscored portion in question: The provision clearly conveys that the [AES] to be used in the 2010 elections need not have been used in the 2007 elections, and that the demonstration of its capability need not be in a previous Philippine election. Demonstration of the success and capability of the PCOS may be in an electoral exercise in a foreign [66] jurisdiction. As determined by the Comelec, the PCOS system had been successfully deployed in previous [67] electoral exercises in foreign countries, such as Ontario, Canada; and New York, USA, albeit Smartmatic was not necessarily the system provider. But then, RA 9369 does not call for the winning bidder of the 2010 automation project and the deploying entity/provider in the foreign electoral exercise to be one and the same entity. Neither does the law incidentally require that the system be first used in an archipelagic country or with a topography or a voting population similar to or approximating that of the Philippines. At any event, any lingering doubt on the issue of whether or not full automation of the 2010 regular elections can validly proceed without a pilot run of the AES should be put to rest with the enactment in March 2009 of RA [68] 9525, in which Congress appropriated PhP 11.301 billion to automate the 2010 elections, subject to compliance with the transparency and accuracy requirements in selecting the relevant technology of the machines, thus: Sec. 2. Use of Funds. x x x Provided, however, That disbursement of the amounts herein appropriated or any part thereof shall be authorized only in strict compliance with the Constitution, the provisions of [RA] No. 9369 and other election laws incorporated in said Act as to ensure the conduct of a free, orderly, clean, honest and credible election and shall adopt such measures that will guaranty transparency and accuracy in the selection of the relevant technology of the machines to be used on May 10, 2010 automated national and local elections. (Emphasis added.) It may safely be assumed that Congress approved the bill that eventually became RA 9525, fully aware that the system using the PCOS machines were not piloted in the 2007 electoral exercise. The enactment of RA 9525 is to us a compelling indication that it was never Congress intent to make the pilot testing of a particular automated election system in the 2007 elections a condition precedent to its use or award of the 2010 Automation Project. The commentin-intervention of the Senate says as much. Further, the highly charged issue of whether or not the 2008 ARMM elections covering, as NCC observed, three conflict-ridden island provincesmay be treated as substantial compliance with the pilot test requireme nt must be answered in the affirmative. No less than Senator Richard J. Gordon himself, the author of the law, said that the system has been tried and tested in the ARMM elections last year, so we have to proceed with the total [69] implementation of the law. We note, though, the conflicting views of the NCC and ITFP on the matter. Suffice it to state at this juncture that the system used in the 2008 ARMM election exercise bears, as petitioners to an extent grudgingly [72] admit, a similarity with the PCOS. The following, lifted from the Comelecs comment, is to us a fair description of how the two systems (PCOS and CCOS) work and where the difference lies: xxx the elections in the [ARMM] utilized the Counting Center Optical Scan (CCOS), a system which uses the Optical Mark Reader (OMR), the same technology as the PCOS. Under the CCOS, the voters cast their votes by shading or marking the circles in the paper ballots which corresponded to the names of their chosen candidates [like in PCOS]. Thereafter, the ballot boxes were brought to the counting centers where they were scanned, counted and canvassed. xxx Under the PCOS, the counting, consolidation and canvassing of the votes are done at the precinct level. The election results at the precincts are then electronically transmitted to the next level, and so on. xxx PCOS dispenses with the physical transportation of ballot boxes from the [73] precincts to the counting centers.
[70] [71]

Moreover, it has been proposed that a partial automation be implemented for the May 2010 elections in accordance with Section 5 of RA 8436, as amended by RA 9369 instead of full automation. The Court cannot agree as such proposition has no basis in law. Section 5, as worded, does not allow for partial automation. In fact, Section 5 [74] clearly states that the AES shall be implemented nationwide. It behooves this Court to follow the letter and intent of the law for full automation in the May 2010 elections. PCOS Meets Minimum Capabilities Standards

As another ground for the nullification of the automation contract, petitioners posit the view that the PCOS machines do not satisfy the minimum system capabilities prescribed by RA 8436, as amended. To a specific point, they suggest that the PCOS system offered and accepted lacks the features that would assure accuracy in the recording and reading of votes, as well as in the tabulation, consolidation/canvassing, electronic transmission, [75] storage results and accurate ballot counting. In this particular regard, petitioners allege that, based on Smartmatics website, the PCOS has a margin of error of from 2% to 10%, way beyond that of the required 99.99% [76] accuracy in the counting of votes. The minimum system capabilities provision cited is Sec. 7 of RA 8436, as amended, and the missing features referred to by petitioners are pars. (b) and (j). In full, Sec. 7 of RA 8436, as amended, reads: SEC. 6. Minimum System Capabilities. - The automated election have the following functional capabilities: system must at least

(a) Adequate security against unauthorized access; (b) Accuracy in recording and reading of votes as well as in the tabulation, consolidation/canvassing, electronic transmission, and storage of results; (c) Error recovery in case of non-catastrophic failure of device; (d) System integrity which ensures physical stability and functioning of the vote recording and counting process; (e) Provision for voter verified paper audit trail; (f) System auditability which provides supporting documentation for verifying the correctness of reported election results; (g) An election management system for preparing ballots and programs for use in the casting and counting of votes and to consolidate, report and display election result in the shortest time possible; (h) Accessibility to illiterates and disabled voters; (i) Vote tabulating program for election, referendum or plebiscite; (j) Accurate ballot counters; (k) Data retention provision; (l) Provide for the safekeeping, storing and archiving of physical or paper resource used in the election process; (m) Utilize or generate official ballots as herein defined; (a) Provide the voter a system of verification to find out whether or not the machine has registered his choice; and (o) Configure access control for sensitive system data and function. In the procurement of this system, the Commission shall develop and adopt an evaluation system to ascertain that the above minimum system capabilities are met. The evaluation system shall be developed with the assistance of an advisory council. From the records before us, the Court is fairly satisfied that the Comelec has adopted a rigid technical evaluation mechanism, a set of 26-item/check list criteria, as will be enumerated shortly, to ensure compliance with the above minimum systems capabilities. The SBAC Memorandum of June 03, 2009, as approved by Comelec Res. 8608, categorically stated that the SBAC-TWG submitted its report that TIM/Smartmatics proposed systems and machines PASSED all the end -toend demo tests using the aforementioned 26-item criteria, inclusive of the accuracy rating test of at least 99.955%. As appearing in the SBAC-TWG report, the corresponding answers/remarks to each of the 26 individual items are as [79] herein indicated:
[77] [78]

ITEM

REQUIREMENT

REMARK/DESCRIPTION

Does the system allow manual feeding of a ballot into the PCOS machine? Does the system scan a ballot sheet at the speed of at least 2.75 inches per second?

Yes. The proposed PCOS machine accepted the test ballots which were manually fed one at a time. Yes. A 30-inch ballot was used in this test. Scanning the 30-inch ballot took 2.7 seconds,

Is the system able to capture and store in an encrypted format the digital images of the ballot for at least 2,000 ballot sides (1,000 ballots, with back to back printing)?

which translated to 11.11inches per second. Yes the system captured the images of the 1,000 ballots in encrypted format. Each of the 1,000 images files contained the images of the front and back sides of the ballot, totaling to 2,000 ballot side. To verify the captured ballot images, decrypted copies of the encrypted files were also provided. The same were found to be digitized representations of the ballots cast. Yes. The proposed PCOS is a fully integrated single device, with built-in printer and built-in data communications ports (Ethernet and USB). Yes. A portion of a filled up marked oval was blown up using image editor software to reveal the number of dots per inch. The sample image showed 200 dpi. File properties of the decrypted image file also revealed 200 dpi. Yes. 30 shades of gray were scanned in the test PCOS machine, 20 of which were required, exceeding the required 4-bit/16 levels of gray as specified in the Bid Bulletin No. 19. Yes. The system required the use of a security key with different sets of passwords/PINs for Administrator and Operator users. Yes. The PCOS machine makes use of an LCD display to show information: machine; if a ballot is being processed; if a ballot is being rejected; on other instructions and information to the voter/operator. Yes. The PCOS showed error messages on its screen whenever a ballot is rejected by the machine and gives instructions to the voter on what to do next, or when there was a ballot jam error. Yes. The two rounds of tests were conducted for this test using only valid marks/shades on the ballots. 20,000 marks were required to complete this test, with only one (1) allowable reading error. 625 ballots with 32 marks each were used for this test. During the comparison of the PCOSgenerated results with the manually prepared/predetermined results, it was found out that there were seven (7) marks which were inadvertently missed out during ballot preparation by the TWG. Although the PCOSgenerated results turned out to be 100% accurate, the 20,000-mark was not met thereby requiring the test to be repeated. To prepare for other possible missed out if a ballot may be inserted into the

Is the system a fully integrated single device as described in item no. 4 of Component 1-B? Does the system have a scanning resolution of at least 200 dpi?

Does the system scan in grayscale?

Does the system require authorization and authentication of all operators, such as, but not limited to, usernames and passwords, with multiple user access levels? Does the system have an electronic display?

Does the system employ error handling procedures, including, but not limited to, the use of error prompts and other related instructions? Does the system count the voters vote as marked on the ballot with an accuracy rating of at least 99.995%?

10

11

Does the system detect and reject fake or spurious, and previously scanned ballots? Does the system scan both sides of a ballot and in any orientation in one pass?

12

13

Does the system have necessary safeguards to determine the authenticity of a ballot, such as, but not limited to, the use of bar codes, holograms, color shifting ink, micro printing, to be provided on the ballot, which can be recognized by the system?

marks,650 ballots with (20,800 marks) were used for the next round of test, which also yielded 100% accuracy. Yes. This test made use of one (1) photocopied ballot and one (1) re-created ballot. Both were rejected by the PCOS. Yes. Four (4) ballots with valid marks were fed into the PCOS machine in the four (4) portrait orientations specified in Bid Bulletin No. 4 (either back or front, upside down or right side up), and all were accurately captured. Yes. The system was able to recognize if the security features on the ballot are missing. Aside from the test on the fake or spurious ballots (Item No. 11), three (3) test ballots with tampered bar codes and timing marks were used and were all rejected by the PCOS machine. The photocopied ballot in the test for Item No. 11 was not able to replicate the UV ink pattern on top portion of the ballot causing the rejection of the ballot. Yes. The Two sample test ballots of different lengths were provided: one (1) was 14 inches long while the other was 30 inches long. Both were 8.5 inches wide. The first showed 108 pre-printed candidate names for the fourteen (14) contests/positions, including two (2) survey questions on gender and age group, and a plebiscite question. The other showed 609 pre-printed candidate names, also for fourteen (14) positions including three (3) survey questions. Yes. The 30-inch ballot, which was used to test Item No. 2, contained 309 names for the national positions and 300 names for local positions. The total pre-printed names on the ballot totaled 609. This type of test ballot was also used for test voting by the public, including members of the media. Arial Narrow, font size 10, was used in the printing of the candidate names. Yes. The ballots used for the accuracy test (Item No. 10), which made use of full shade marks, were also used in this test and were accurately recognized by the PCOS machine. Yes. Four (4) test ballots were used with one (1) mark each per ballot showing the following pencil marks: top half shade; bottom half shade; left half shade; and

14

Are the names of the candidates pre-printed on the ballot?

15

Does each side of the ballot sheet accommodate at least 300 names of candidates with a minimum font size of 10, in addition to other mandatory information required by law?

16

17

Does the system recognize full shade marks on the appropriate space on the ballot opposite the name of the candidate to be voted for? Does the system recognize partial shade marks on the appropriate space on the ballot opposite the name of the candidate to be voted for?

 right half shade These partial shade marks were all recognized by the PCOS machine Yes. One (1) test ballot with one check () mark, using a pencil, was used for this test. The mark was recognized successfully. Yes. One (1) test ballot with one x mark, using a pencil, was used for this test. The mark was recognized successfully. Yes. The 1000 ballots used in the accuracy test (Item No. 10) were marked using the proposed marking pen by the bidder. A separate ballot with one (1) pencil mark was also tested. This mark was also recognized by the PCOS machine. Moreover, the tests for Items No. 17, 18 and 19 were made using pencil marks on the ballots. Yes. Five (5) ballots were used in this test. The power cord was pulled from the PCOS while the rd 3 ballot was in the middle of the scanning procedure, such that it was left hanging in the ballot reader. After resumption of regular power supply, the PCOS machine was able to restart successfully with notification to the operator that there were two (2) ballots already cast in the machine. The rd hanging 3 ballot was returned to the operator and was able to be re-fed into the PCOS machine. The marks on all five (5) were all accurately recognized. 22 Does the system have transmission and consolidation/canvassing capabilities? Does the system generate a backup copy of the generated reports, in a removable data storage device? Does the system have alternative power sources, which will enable it to fully operate for at least 12 hours? Yes. The PCOS was able to transmit to the CCS during the end-to-end demonstration using GLOBE prepaid Internet kit. Yes. The PCOS saves a backup copy of the ERs, ballot images, statistical report and audit log into a Compact Flash (CF) Card. Yes. A 12 bolt 18AH battery lead acid was used in this test. The initial test had to be repeated due to a short circuit, after seven (7) hours from start-up without ballot scanning. This was explained by TIM-Smartmatic to be caused by non-compatible wiring of the battery to the PCOS. A smaller wire than what is required was inadvertently used, likening the situation to incorrect wiring of a car battery. Two (2) COMELEC electricians were called to confirm TIM-Smartmatics explanation. The PCOS machine was connected to regular power and started successfully. The following day, the re test was completed in 12 hours and 40 minutes xxx 984 ballots were fed into the machine. The ER, as generated by the PCOS was compared with predetermined result, showed 100% accuracy. Yes. The PCOS prints reports via its built-in

18

Does the system recognize check ()marks on the appropriate space on the ballot opposite the name of the candidate to be voted for? Does the system recognize x marks on the appropriate space on the ballot opposite the name of the candidate to be voted for? Does the system recognize both pencil and ink marks on the ballot?

19

20

21

In a simulation of a system shut down, does the system have error recovery features?

23

24

25

Is the system capable of generating and

printing reports?

26

Did the bidder successfully demonstrateEMS, voting counting, consolidation/canvassing and transmission?

printer which includes: 1. Initialization Report; 2. Election Returns (ER); 3. PCOS Statistical Report; 4. Audit Log. Yes. An end-to-end demonstration of all proposed systems was presented covering: importing of election data into the EMS; creation of election configuration data for the PCOS and the CCS using EMS; creation of ballot faces using EMS; configuring the PCOS and the CCS using the EMS-generated election configuration file; initialization, operation, generation of reports and backup using the PCOS; electronic transmission of results to the: [1] from the PCOS to city/municipal CCS and the central server. [2] from the city/municipal CCS to the provincial CCS. [3] from the provincial CCS to the national CCS; receipt and canvass of transmitted results: [1] by the city/municipal CCS from the PCOS. [2] by the provincial CCS from the city/municipal CCS. [3] by the national CCS from the provincial CCS; receipt of the transmittal results by the central server from the PCOS.

Given the foregoing and absent empirical evidence to the contrary, the Court, presuming regularity in the performance of regular duties, takes the demo-testing thus conducted by SBAC-TWG as a reflection of the capability [80] of the PCOS machines, although the tests, as Comelec admits, were done literally in the Palacio del Governador building, where a room therein simulated a town, the adjoining room a city, etc. Perusing the RFP, however, the real worth of the PCOS system and the machines will of course come after they shall have been subjected to the gamut of acceptance tests expressly specified in the RFP, namely, the lab test, field test, mock election test, transmission test and, lastly, the final test and sealing procedure of all PCOS and CCS units using the [81] actual Election Day machine configuration. Apropos the counting-accuracy feature of the PCOS machines, petitioners no less impliedly admit that the [82] web page they appended to their petition, showing a 2% to 10% failing rate, is no longer current. And if they bothered to examine the current website of Smartmatic specifically dealing with its SAES 1800, the PCOS system it [83] offered, they would have readily seen that the advertised accuracy rating is over 99.99999%. Moreover, a careful scrutiny of the old webpage of Smarmatic reveals that the 2% to 10 % failure rate applied to optical scanners and not to SAES. Yet the same page discloses that the SAES has 100% accuracy. Clearly, the alleged 2% to 10% failing rate is now irrelevant and the Court need not belabor this and the equally irrelevant estoppel principle petitioners impose on us. Intervenor Cuadras concern relates to the auditability of the election results. In this regard, it may suffice to point out that PCOS, being a paper-based technology, affords audit since the voter would be able, if need be, to verify if the machine had scanned, recorded and counted his vote properly. Moreover, it should also be noted that the PCOS machine contains an LCD screen, one that can be programmed or configured to display to the voter his votes [84] as read by the machine. No Abdication of Comelecs Mandate and Responsibilty As a final main point, petitioners would have the Comelec-Smartmatic-TIM Corporation automation contract nullified since, in violation of the Constitution, it constitutes a wholesale abdication of the poll bodys constitutional mandate for election law enforcement. On top of this perceived aberration, the mechanism of the PCOS machines would infringe the constitutional right of the people to the secrecy of the ballot which, according to the petitioners, is [85] provided in Sec. 2, Art. V of the Constitution. The above contention is not well taken. The first function of the Comelec under the Constitution and the Omnibus Election Code for that matter relates to the enforcement and administration of all laws and regulations relating to the conduct of elections to public office to ensure a free, orderly and honest electoral exercise. And how did petitioners come to their conclusion about their abdication theory? By acceding to Art. 3.3 of the automation contract, Comelec relinquished, so petitioners claim, supervision and control of the system to be used for the automated elections.
[86]

To a more specific point, the loss of control, as may be deduced from the ensuing exchanges, arose from the fact that Comelec would not be holding possession of what in IT jargon are the public and private keys pair. CHIEF JUSTICE: Well, more specifically are you saying that the main course of this lost of control is the fact that SMARTMATIC holds the public and private keys to the sanctity of this system? ATTY. ROQUE: Yes, Your Honor, as well as the fact that they control the program embedded in the key cost that will read their votes by which the electorate may verify that their votes were counted. CHIEF JUSTICE: You are saying that SMARTMATIC and not its partner TIM who hold these public and private keys? ATTY. ROQUE: Yes, Your Honor. The Court is not convinced. There is to us nothing in Art 3.3 of the automation contract, even if read separately from other stipulations and the provisions of the bid documents and the Constitution itself, to support the simplistic conclusion of abdication of control pressed on the Court. Insofar as pertinent, Art 3.3 reads: 3.3 The PROVIDER shall be liable for all its obligations under this Project and the performance of portions thereof by other persons or entities not parties to this Contract shall not relieve the PROVIDER of said obligations and concomitant liabilities. SMARTMATIC, as the joint venture partner with the greater track record in automated elections, shall be in charge of the technical aspects of the counting and canvassing software and hardware, including transmission configuration and system integration. SMARTMATIC shall also be primarily responsible for preventing and troubleshooting technical problems that may arise during the elections. (Emphasis added.) The proviso designating Smartmatic as the joint venture partner in charge of the technical aspect of the counting and canvassing wares does not to us translate, without more, to ceding control of the electoral process to Smartmatic. It bears to stress that the aforesaid designation of Smartmatic was not plucked from thin air, as it was in fact an eligibility requirement imposed, should the bidder be a joint venture. Part 5, par. 5.4 (e) of the Instruction to Bidders on the subject Eligible Bidders, whence the second paragraph of aforequoted Art. 3.3 came from, reads: 5.4 A JV of two or more firms as partners shall comply with the following requirements. xxxx (e) The JV member with a greater track record in automated elections, shall be in-charge of the technical aspects of the counting and canvassing software and hardware, including transmission configuration and system integration And lest it be overlooked, the RFP, which forms an integral part of the automation contract, has put all prospective bidders on notice of Comelecs intent to automate and to accept bids that would meet several needs, among which is a complete solutions provider which can provide effective overall nationwide project management service under COMELEC supervision and control, to ensure effective and successful [88] implementation of the [automation] Project. Complementing this RFP advisory as to control of the election process is Art. 6.7 of the automation contract, providing: 6.7 Subject to the provisions of the General Instructions to be issued by the Commission En Banc, the entire processes of voting, counting, transmission, consolidation and canvassing of votes shall be conducted by COMELECs personnel and officials , and their performance, completion and final results according to specifications and within the specified periods shall be the shared responsibility of COMELEC and the PROVIDER. (Emphasis added.) But not one to let an opportunity to score points pass by, petitioners rhetorically ask: Where does Public Respondent Comelec intend to get this large number of professionals, many of whom are already gainfully employed [89] [90] [91] abroad? The Comelec, citing Sec. 3 and Sec. 5 of RA 8436, as amended, aptly answered this poser in the following wise: x x x [P]ublic respondent COMELEC, in the implementation of the automated project, will forge partnerships with various entities in different fields to bring about the success of the 2010 automated elections. Public respondent COMELEC will partner with Smartmatic TIM Corporation for the training and hiring of the IT personnel as well as for the massive voter-education campaign. There is in fact a budget allocation x x x for these undertakings. x x x
[87]

As regards the requirement of RA 9369 that IT-capable personnel shall be deputized as a member of the BEI and that another IT-capable person shall assist the BOC, public respondent COMELEC shall partner with DOST and other agencies and instrumentalities of the government. In not so many words during the oral arguments and in their respective Memoranda, public and private respondents categorically rejected outright allegations of abdication by the Comelec of its constitutional duty. The petitioners, to stress, are strangers to the automation contract. Not one participated in the bidding conference or the bidding proper or even perhaps examined the bidding documents and, therefore, none really knows the real intention of the parties. As case law tells us, the court has to ferret out the real intent of the parties. What is fairly clear in this case, however, is that petitioners who are not even privy to the bidding process foist upon the Court their own view on the stipulations of the automation contract and present to the Court what they think are the parties true intention. It is a study of outsiders appearing to know more than the parties do, but actually speculating what the parties intended. The following is self-explanatory: CHIEF JUSTICE: Why did you say that it did not, did you talk with the Chairman and Commissioners of COMELEC that they failed to perform this duty, they did not exercise this power of control? ATTY. ROQUE : Your Honor, I based it on the fact that it was the COMELEC in fact that entered into this contract . CHIEF JUSTICE : Yes, but my question is did you confront the COMELEC officials that they forfeited their power of control in over our election process? [92] ATTY. ROQUE : We did not confront, your Honor. We impugned their acts, Your Honor. Just as they do on the issue of control over the electoral process, petitioners also anchor on speculative reasoning their claim that Smartmatic has possession and control over the public and private keys pair that will operate the PCOS machines. Consider: Petitioners counsel was at the start cocksure about Smartmatics control of [93] these keys and, with its control, of the electoral process. Several questions later, his answers had a qualifying tone: JUSTICE NACHURA: And can COMELEC under the contract not demand that it have access, that it be given access to and in fact generate its own keys independently with SMARTMATIC so that it would be COMELEC and not SMARTMATIC that would have full control of the technology insofar as the keys are concerned xxx? ATTY. ROQUE: I do not know if COMELEC will be in a position to generate these keys, xxx.
[94]

And subsequently, the speculative nature of petitioners position as to who would have possession and control of the keys became apparent. CHIEF JUSTICE: Yes, but did you check with the COMELEC who will be holding these two keys x x x did you check with COMELEC whether this system is correct? ATTY.ROQUE: We have not had occasion to do so, x x x Your Honor. xxxx CHIEF JUSTICE: Why do you make that poor conclusion against the COMELEC x x x May not the COMELEC hire the services of experts in order for the institution to be able to discharge its constitutional functions? ATTY. ROQUE: That is true, but x x x there is too much reliance on individuals who do not have the same kind of accountability as public officers x x x CHIEF JUSTICE: Are you saying that the COMELEC did not consult with available I.T. experts in the country before it made the bidding rules before it conducted the bidding and make the other policy judgments? ATTY. ROQUE: Your Honor, what I am sure is that they did not confer with the I.T. Foundation x x x. [95] CHIEF JUSTICE: But is that foundation the only expert, does it have a monopoly of knowledge?

The Court, to be sure, recognizes the importance of the vote-security issue revolving around the issuance of the public and private keys pair to the Board of Election Inspectors, including the digital signatures. The NCC comment on the matter deserves mention, appearing to hew as it does to what appear on the records. The NCC wrote: The RFP/TOR used in the recent bidding for the AES to be used in the 2010 elections specifically mandated the use of public key cryptography. However, it was left to the discretion of the bidder to propose an acceptable manner of utilization for approval/acceptance of the Comelec. Nowhere in the RFP/TOR was it indicated that COMELEC would delegate to the winning bidder the full discretion, supervision and control over the manner of PKI [Public Key Infrastructure] utilization.

With the view we take of the automation contract, the role of Smartmatic TIM Corporation is basically to supply the goods necessary for the automation project, such as but not limited to the PCOS machines, PCs, electronic transmission devices and related equipment, both hardware and software, and the technical services pertaining to their operation. As lessees of the goods and the back-up equipment, the corporation and its operators would provide assistance with respect to the machines to be used by the Comelec which, at the end of the day, will be conducting the election thru its personnel and whoever it deputizes. And if only to emphasize a point, Comelecs contract is with Smartmatic TIM Corporation of which Smartmatic is a 40% minority owner, per the JVA of TIM and Smartmatic and the Articles of Incorporation of Smartmatic TIM Corporation. Accordingly, any decision on the part or on behalf of Smartmatic will not be binding on Comelec. As a necessary corollary, the board room voting arrangement that Smartmatic and TIM may have agreed upon as joint venture partners, inclusive of the veto vote that one may have power over the other, should really be the least concern of the Comelec. Parenthetically, the contention that the PCOS would infringe on the secrecy and sanctity of the ballot [96] because, as petitioners would put it, the voter would be confronted with a three feet long ballot, does not commend itself for concurrence. Surely, the Comelec can put up such infrastructure as to insure that the voter can write his preference in relative privacy. And as demonstrated during the oral arguments, the voter himself will personally feed the ballot into the machine. A voter, if so minded to preserve the secrecy of his ballot, will always devise a way to do so. By the same token, one with least regard for secrecy will likewise have a way to make his vote known. During the oral arguments, the notion of a possible violation of the Anti-Dummy Law cropped up, given the RFP requirement of a joint venture bidder to be at least be 60% Filipino. On the other hand, the winning bidder, TIMSmartmatic joint venture, has Smartmatic, a foreign corporation, owning 40% of the equity in, first, the joint venture partnership, and then in Smartmatic TIM Corporation. The Anti-Dummy Law
[97]

pertinently states:

Section 1. Penalty. In all cases in which any constitutional or legal provision requires Philippine or any other specific citizenship as a requisite for the exercise or enjoyment of a right, franchise or privilege, any citizen of the Philippines or of any other specific country who allows his name or citizenship to be used for the purpose of evading such provision, and any alien or foreigner profiting thereby, shall be punished by imprisonment xxx and by a fine xxx. SECTION 2. Simulation of minimum capital stock In all cases in which a constitutional or legal provision requires that a corporation or association may exercise or enjoy a right, franchise or privilege, not less than a certain per centum of its capital must be owned by citizens of the Philippines or any other specific country, it shall be unlawful to falsely simulate the existence of such minimum stock or capital as owned by such citizen for the purpose of evading such provision. xxx SECTION 2-A. Unlawful use, Exploitation or Enjoyment. Any person, corporation, or association which, having in its name or under its control, a right, franchise, privilege, property or business, the exercise or enjoyment of which is expressly reserved by the Constitution or the laws to citizens of the Philippines or of any other specific country, or to corporations or associations at least sixty per centum of the capital of which is owned by such citizens , permits or allows the use, exploitation or enjoyment thereof by a person, corporation, or association

not possessing the requisites prescribed by the Constitution or the laws of the Philippines; or leases, or in any other way, transfers or conveys said right, franchise, privilege, property or business to a person, corporation or association not otherwise qualified under the Constitution xxx shall be punished by imprisonment xxx (Emphasis added.)

The Anti-Dummy Law has been enacted to limit the enjoyment of certain economic activities to Filipino citizens or corporations. For liability for violation of the law to attach, it must be established that there is a law limiting or reserving the enjoyment or exercise of a right, franchise, privilege, or business to citizens of thePhilippines or to corporations or associations at least 60 per centum of the capital of which is owned by such citizens. In the case at bench, the Court is not aware of any constitutional or statutory provision classifying as a nationalized activity the lease or provision of goods and technical services for the automation of an election. In fact, Sec. 8 of RA 8436, as amended, vests the Comelec with specific authority to acquire AES from foreign sources, thus: SEC 12. Procurement of Equipment and Materials . To achieve the purpose of this Act, the Commission is authorized to procure, xxx, by purchase, lease, rent or other forms of acquisition, supplies, equipment, materials, software, facilities, and other services, from local or foreign sources xxx. (Emphasis added.) Petitioners cite Executive Order No. (EO) 584, Series of 2006, purportedly limiting contracts for the supply of materials, goods and commodities to government-owned or controlled corporation, company, agency or municipal corporation to corporations that are 60% Filipino. We do not quite see the governing relevance of EO 584. For let alone the fact that RA 9369 is, in relation to EO 584, a subsequent enactment and, therefore, enjoys primacy over the executive issuance, the Comelec does fall under the category of a government-owned and controlled corporation, an agency or a municipal corporation contemplated in the executive order. A view has been advanced regarding the susceptibility of the AES to hacking, just like the voting machines used in certain precincts in Florida, USA in the Gore-Bush presidential contests. However, an analysis of postelection reports on the voting system thus used in the US during the period material and the AES to be utilized in the 2010 automation project seems to suggest stark differences between the two systems. The first relates to the Source [99] Code, defined in RA 9369 as human readable instructions that define what the computer equipment will do. The Source Code for the 2010 AES shall be available and opened for review by political parties, candidates and the [100] citizens arms or their representatives; whereas in the US precincts aforementioned, the Source Code was alleged to have been kept secret by the machine manufacture company, thus keeping the American public in the dark as to how exactly the machines counted their votes. And secondly, in the AES, the PCOS machines found in the precincts will also be the same device that would tabulate and canvass the votes; whereas in the US, the machines in the precincts did not count the votes. Instead the votes cast appeared to have been stored in a memory card that was brought to a counting center at the end of the day. As a result, the hacking and cheating may have possibly occurred at the counting center. Additionally, with the AES, the possibility of system hacking is very slim. The PCOS machines are only online when they transmit the results, which would only take around one to two minutes. In order to hack the system during this tiny span of vulnerability, a super computer would be required. Noteworthy also is the fact that the memory card to be used during the elections is encrypted and read-onlymeaning no illicit program can be executed or introduced into the memory card. Therefore, even though the AES has its flaws, Comelec and Smartmatic have seen to it that the system is well-protected with sufficient security measures in order to ensure honest elections. And as indicated earlier, the joint venture provider has formulated and put in place a continuity and back-up plans that would address the understandable apprehension of a failure of elections in case the machines falter during the actual election. This over-all fall-back strategy includes the provisions for 2,000 spare PCOS machines on top of the 80,000 units assigned to an equal number precincts throughout the country. The continuity and back-up plans seek to address the following eventualities: (1) The PCOS fails to scan ballots; (2) The PCOS scans the ballots, but fails to print election returns (ERs); and/or (3) The PCOS prints but fails to transmit the ERs. In the event item #1 occurs, a spare PCOS, if available, will be brought in or, if not available, the PCOS of another precinct (PCOS 2 for [101] clarity), after observing certain defined requirements, shall be used. Should all the PCOS machines in the entire municipality/city fail, manual counting of the paper ballots and the manual accomplishment of ERs shall be [102] resorted to in accordance with Comelec promulgated rules on appreciation of automated ballots. In the event item #2 occurs where the PCOS machines fail to print ERs, the use of spare PCOS and the transfer of PCOS-2 shall be effected. Manual counting of ERs shall be resorted to also if all PCOS fails in the entire municipality. And should eventuality #3 transpire, the following back-up options, among others, may be availed of: bringing PCOS-1 to the
[98]

nearest precinct or polling center which has a functioning transmission facility; inserting transmission cable of functioning transmission line to PCOS-1 and transmitting stored data from PCOS-1 using functioning transmission facility. The disruption of the election process due to machine breakdown or malfunction may be limited to a precinct only or could affect an entire municipal/city. The worst case scenario of course would be the wholesale breakdown of the 82,000 PCOS machines. Nonetheless, even in this most extreme case, failure of all the machines would not necessarily translate into failure of elections. Manual count tabulation and transmission, as earlier stated, can be done, PCOS being a paper-ballot technology. If the machine fails for whatever reason, the paper ballots would still be there for the hand counting of the votes, manual tabulation and transmission of the ERs. Failure of elections consequent to voting machines failure would, in fine, be a very remote possibility. A final consideration. The first step is always difficult. Hardly anything works, let alone ends up perfectly the first time around. As has often been said, if one looks hard enough, he will in all likelihood find a glitch in any new system. It is no wonder some IT specialists and practitioners have considered the PCOS as unsafe, not the most appropriate technology for Philippine elections, and easily hackable, even. And the worst fear expressed is that disa ster is just waiting to happen, that PCOS would not work on election day. Congress has chosen the May 2010 elections to be the maiden run for full automation. And judging from what the Court has heard and read in the course of these proceedings, the choice of PCOS by Comelec was not a spur-of-moment affair, but the product of honest-to-goodness studies, consultations with CAC, and lessons learned from the ARMM 2008 automated elections. With the backing of Congress by way of budgetary support, the poll body has taken this historic, if not ambitious, first step. It started with the preparation of the RFP/TOR, with a list of voluminous annexes embodying in specific detail the bidding rules and expectations from the bidders. And after a hotly contested and, by most accounts, a highly transparent public bidding exercise, the joint venture of a Filipino and foreign corporation won and, after its machine hurdled the end-to-end demonstration test, was eventually awarded the contract to undertake the automation project. Not one of the losing or disqualified bidders questioned, at least not before the courts, the bona fides of the bidding procedures and the outcome of the bidding itself. Assayed against the provisions of the Constitution, the enabling automation law, RA 8436, as amended by RA 9369, the RFP and even the Anti-Dummy Law, which petitioners invoked as an afterthought, the Court finds the project award to have complied with legal prescriptions, and the terms and conditions of the corresponding automation contract in question to be valid. No grave abuse of discretion, therefore, can be laid on the doorsteps of respondent Comelec. And surely, the winning joint venture should not be faulted for having a foreign company as partner. The Comelec is an independent constitutional body with a distinct and pivotal role in our scheme of government. In the discharge of its awesome functions as overseer of fair elections, administrator and lead implementor of laws relative to the conduct of elections, it should not be stymied with restrictions that would perhaps [103] be justified in the case of an organization of lesser responsibility. It should be afforded ample elbow room and enough wherewithal in devising means and initiatives that would enable it to accomplish the great objective for which it was createdto promote free, orderly, honest and peaceful elections. This is as it should be for, too often, Comelec has to make decisions under difficult conditions to address unforeseen events to preserve the integrity of the election and in the process the voice of the people. Thus, in the past, the Court has steered away from interfering with the Comelecs exercise of its power which, by law and by the nature of its office properly pertain to it. Absent, therefore, a clear showing of grave abuse of discretion on Comelecs part, as here, the Court should refrain from utilizing the corrective hand ofcertiorari to review, let alone nullify, the acts of that body. This gem, while not on all fours with, is lifted from, the Courts holding in an old but oft -cited case: x x x We may not agree fully with [the Comelecs] choice of means, but unless these are clearly illegal or constitute gross abuse of discretion, this court should not interfere. Politics is a practical matter, and political questions must be dealt with realistically not from the standpoint of pure theory [or speculation]. x x x xxxx There are no ready-made formulas for solving public problems. Time and experience are necessary to evolve patterns that will serve the ends of good government. In the matter of the administration of the laws relative to the conduct of elections, x x x we must not by any excessive zeal take away from the [Comelec] the initiative which by constitutional and legal mandates

properly belongs to it. Due regard to the independent character of the Commission x x x requires that the power of this court to review the acts of that body should, as a general proposition, be used [104] sparingly, but firmly in appropriate cases. xxx The Court, however, will not indulge in the presumption that nothing would go wrong, that a successful automation election unmarred by fraud, violence, and like irregularities would be the order of the moment on May 10, 2010. Neither will it guarantee, as it cannot guarantee, the effectiveness of the voting machines and the integrity of the counting and consolidation software embedded in them. That task belongs at the first instance to Comelec, as part of its mandate to ensure clean and peaceful elections. This independent constitutional commission, it is true, possesses extraordinary powers and enjoys a considerable latitude in the discharge of its functions. The road, however, towards successful 2010 automation elections would certainly be rough and bumpy. The Comelec is laboring under very tight timelines. It would accordingly need the help of all advocates of orderly and honest elections, of all men and women of goodwill, to smoothen the way and assist Comelec personnel address the fears expressed about the integrity of the system. Like anyone else, the Court would like and wish automated elections to succeed, credibly. WHEREFORE, the instant petition is hereby DENIED. SO ORDERED.

DEL CASTILLO, J.: The Treaty of Peace with Japan, insofar as it barred future claims such as those asserted by plaintiffs in these actions, exchanged full compensation of plaintiffs for a future peace. History has vindicated the wisdom of that bargain. And while full compensation for plaintiffs' hardships, in the purely economic sense, has been denied these former prisoners and countless other survivors of the war, the immeasurable bounty of life for [1] themselves and their posterity in a free society and in a more peaceful world services the debt.

There is a broad range of vitally important areas that must be regularly decided by the Executive Department without either challenge or interference by the Judiciary. One such area involves the delicate arena of foreign relations. It would be strange indeed if the courts and the executive spoke with different voices in the realm of foreign policy. Precisely because of the nature of the questions presented, and the lapse of more than 60 years since the conduct complained of, we make no attempt to lay down general guidelines covering other situations not involved here, and confine the opinion only to the very questions necessary to reach a decision on this matter. Factual Antecedents This is an original Petition for Certiorari under Rule 65 of the Rules of Court with an application for the issuance of a writ of preliminary mandatory injunction against the Office of the Executive Secretary, the Secretary of the Department of Foreign Affairs (DFA), the Secretary of the Department of Justice (DOJ), and the Office of the Solicitor General (OSG). Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit organization registered with the Securities and Exchange Commission, established for the purpose of providing aid to the victims of rape by Japanese military forces in the Philippines during the Second World War. Petitioners narrate that during the Second World War, the Japanese army attacked villages and systematically raped the women as part of the destruction of the village. Their communities were bombed, houses were looted and burned, and civilians were publicly tortured, mutilated, and slaughtered. Japanese soldiers forcibly seized the women and held them in houses or cells, where they were repeatedly raped, beaten, and abused by Japanese soldiers. As a result of the actions of their Japanese tormentors, the petitioners have spent their lives in misery, having endured physical injuries, pain and disability, and mental and [2] emotional suffering. Petitioners claim that since 1998, they have approached the Executive Department through the DOJ, DFA, and OSG, requesting assistance in filing a claim against the Japanese officials and military officers who ordered the establishment of the comfort women stations in the Philippines. However, officials of the Executive Department declined to assist the petitioners, and took the position that the individual claims of the comfort women for compensation had already been fully satisfied by Japans compliance with the Peace Treaty between the Philippines and Japan. Issues

Hence, this petition where petitioners pray for this court to (a) declare that respondents committed grave abuse of discretion amounting to lack or excess of discretion in refusing to espouse their claims for the crimes against humanity and war crimes committed against them; and (b) compel the respondents to espouse their claims for official apology and other forms of reparations against Japan before the International Court of Justice (ICJ) and other international tribunals. Petitioners arguments Petitioners argue that the general waiver of claims made by the Philippine government in the Treaty of Peace with Japan is void. They claim that the comfort women system established by Japan, and the brutal rape and enslavement of [3] [4] [5] petitioners constituted a crime against humanity, sexual slavery, and torture. They allege that the prohibition against these international crimes is jus cogens norms from which no derogation is possible; as such, in waiving the claims of Filipina comfort women and failing to espouse their complaints against Japan, the Philippine government is in breach of its legal obligation not to afford impunity for crimes against humanity. Finally, petitioners assert that the Philippine governments acceptance of the apologies made by Japan as well as funds from the Asian Womens Fund (AWF) were contrary to international law. Respondents Arguments Respondents maintain that all claims of the Philippines and its nationals relative to the war were dealt with in the San [6] Francisco Peace Treaty of 1951 and the bilateral Reparations Agreement of 1956. Article 14 of the Treaty of Peace provides: Article 14. Claims and Property a) It is recognized that Japan should pay reparations to the Allied Powers for the damage and suffering caused by it during the war. Nevertheless it is also recognized that the resources of Japan are not presently sufficient, if it is to maintain a viable economy, to make complete reparation for all such damage and suffering and at the present time meet its other obligations. Except as otherwise provided in the present Treaty, the Allied Powers waive all reparations claims of the Allied Powers, other claims of the Allied Powers and their nationals arising out of any actions taken by Japan and its nationals in the course of the prosecution of the war, and claims of the Allied Powers for direct military costs of occupation.
[8] [7]

b)

In addition, respondents argue that the apologies made by Japan have been satisfactory, and that Japan had addressed the individual claims of the women through the atonement money paid by the Asian Womens Fund. Historical Background The comfort women system was the tragic legacy of the Rape of Nanking. In December 1937, Japanese military forces captured the city of Nanking in China and began a barbaric campaign of terror known as the Rape of Nanking, which included the rapes and murders of an estimated 20,000 to 80,000 Chinese women, including young girls, pregnant mothers, and elderly [9] women. In reaction to international outcry over the incident, the Japanese government sought ways to end international [10] condemnation by establishing the comfort women system. Under this system, the military could simultaneously appease [11] soldiers' sexual appetites and contain soldiers' activities within a regulated environment. Comfort stations would also prevent the [12] spread of venereal disease among soldiers and discourage soldiers from raping inhabitants of occupied territories. Daily life as a comfort woman was unmitigated misery. The military forced victims into barracks-style stations divided [14] into tiny cubicles where they were forced to live, sleep, and have sex with as many 30 soldiers per day. The 30 minutes allotted [15] for sexual relations with each soldier were 30-minute increments of unimaginable horror for the women. Disease was [16] rampant. Military doctors regularly examined the women, but these checks were carried out to prevent the spread of venereal diseases; little notice was taken of the frequent cigarette burns, bruises, bayonet stabs and even broken bones inflicted on the women by soldiers. Fewer than 30% of the women survived the war. Their agony continued in having to suffer with the residual physical, psychological, and emotional scars from their former lives. Some returned home and were ostracized by their families. Some [18] committed suicide. Others, out of shame, never returned home. Efforts to Secure Reparation
[17] [13]

The most prominent attempts to compel the Japanese government to accept legal responsibility and pay compensatory damages for the comfort women system were through a series of lawsuits, discussion at the United Nations (UN), resolutions by various nations, and the Womens International Criminal Tribunal. The Japanese government, in turn, responded through a series [19] of public apologies and the creation of the AWF. Lawsuits In December 1991, Kim Hak-Sun and two other survivors filed the first lawsuit in Japan by former comfort women [20] [21] against the Japanese government. The Tokyo District Court however dismissed their case. Other suits followed, but the [22] Japanese government has, thus far, successfully caused the dismissal of every case. Undoubtedly frustrated by the failure of litigation before Japanese courts, victims of the comfort women system brought their claims before the United States (US). On September 18, 2000, 15 comfort women filed a class action lawsuit in the US [23] District Court for the District of Columbia "seeking money damages for [allegedly] having been subjected to sexual slavery and torture before and during World War II," in violation of "both positive and customary international law." The case was filed pursuant [24] to the Alien Tort Claims Act (ATCA), which allowed the plaintiffs to sue the Japanese government in a US federal district [25] court. On October 4, 2001, the district court dismissed the lawsuit due to lack of jurisdiction over Japan, stating that [t]here is no question that this court is not the appropriate forum in which plaintiffs may seek to reopen x x x discussions nearly half a century later x x x [E]ven if Japan did not enjoy sovereign immunity, plaintiffs' claims are non-justiciable and must be dismissed. The District of Columbia Court of Appeals affirmed the lower court's dismissal of the case. On appeal, the US Supreme Court granted the womens petition for writ of certiorari, vacated the judgment of the District of Columbia Court of [27] Appeals, and remanded the case. On remand, the Court of Appeals affirmed its prior decision, noting that much as we may [28] feel for the plight of the appellants, the courts of the US simply are not authorized to hear their case. The women again brought their case to the US Supreme Court which denied their petition for writ of certiorari on February 21, 2006. Efforts at the United Nations In 1992, the Korean Council for the Women Drafted for Military Sexual Slavery by Japan (KCWS), submitted a petition to the UN Human Rights Commission (UNHRC), asking for assistance in investigating crimes committed by Japan against Korean [29] women and seeking reparations for former comfort women. The UNHRC placed the issue on its agenda and appointed Radhika Coomaraswamy as the issue's special investigator. In 1996, Coomaraswamy issued a Report reaffirming Japan's responsibility in forcing Korean women to act as sex slaves for the imperial army, and made the following recommendations: A. 137. (a) At the national level The Government of Japan should: Acknowledge that the system of comfort stations set up by the Japanese Imperial Army during the Second World War was a violation of its obligations under international law and accept legal responsibility for that violation; Pay compensation to individual victims of Japanese military sexual slavery according to principles outlined by the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on the right to restitution, compensation and rehabilitation for victims of grave violations of human rights and fundamental freedoms. A special administrative tribunal for this purpose should be set up with a limited time-frame since many of the victims are of a very advanced age; Make a full disclosure of documents and materials in its possession with regard to comfort stations and other related activities of the Japanese Imperial Army during the Second World War; Make a public apology in writing to individual women who have come forward and can be substantiated as women victims of Japanese military sexual slavery; Raise awareness of these issues by amending educational curricula to reflect historical realities; Identify and punish, as far as possible, perpetrators involved in the recruitment and institutionalization of comfort stations during the Second World War.
[26]

(b)

(c)

(d)

(e) (f)

Gay J. McDougal, the Special Rapporteur for the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, also presented a report to the Sub-Committee on June 22, 1998 entitled Contemporary Forms of Slavery: Systematic Rape, Sexual Slavery and Slavery-like Practices During Armed Conflict. The report included an appendix entitled An Analysis of [30] the Legal Liability of the Government of Japan for 'Comfort Women Stations' established during the Second World War, which contained the following findings: 68. The present report concludes that the Japanese Government remains liable for grave violations of human rights and humanitarian law, violations that amount in their totality to crimes against humanity. The Japanese Governments arguments to the contrary, including arguments that seek to attack the underlying humanitarian law prohibition of enslavement and rape, remain as unpersuasive today as they were when they were first raised before the Nuremberg war crimes tribunal more than 50 years ago. In addition, the Japanese Governments argument that Japan has already settled all claims from the Second World War through peace treaties and reparations agreements following the war remains equally unpersuasive. This is due, in large part, to the failure until very recently of the Japanese Government to admit the extent of the Japanese militarys direct involvement in the establishment and maintenance of these rape centres. The Japanese Governments silence on this point during the period in which peace and reparations agreements between Japan and other Asian Governments were being negotiated following the end of the war must, as a matter of law and justice, preclude Japan from relying today on these peace treaties to extinguish liability in these cases. 69. The failure to settle these claims more than half a century after the cessation of hostilities is a testament to the degree to which the lives of women continue to be undervalued. Sadly, this failure to address crimes of a sexual nature committed on a massive scale during the Second World War has added to the level of impunity with which similar crimes are committed today. The Government of Japan has taken some steps to apologize and atone for the rape and enslavement of over 200,000 women and girls who were brutalized in comfort stations during the Second World War. However, anything less than full and unqualified acceptance by the Government of Japan of legal liability and the consequences that flow from such liability is wholly inadequate. It must now fall to the Government of Japan to take the necessary final steps to provide adequate redress.

The UN, since then, has not taken any official action directing Japan to provide the reparations sought. Women's International War Crimes

Tribunal The Women's International War Crimes Tribunal (WIWCT) was a people's tribunal established by a number of Asian [31] women and human rights organizations, supported by an international coalition of non-governmental organizations. First proposed in 1998, the WIWCT convened in Tokyo in 2000 in order to adjudicate Japan's military sexual violence, in particular the enslavement of comfort women, to bring those responsible for it to justice, and to end the ongoing cycle of impunity for wartime sexual violence against women. After examining the evidence for more than a year, the tribunal issued its verdict on December 4, 2001, finding the [32] former Emperor Hirohito and the State of Japan guilty of crimes against humanity for the rape and sexual slavery of women. It bears stressing, however, that although the tribunal included prosecutors, witnesses, and judges, its judgment was not legally binding since the tribunal itself was organized by private citizens. Action by Individual Governments On January 31, 2007, US Representative Michael Honda of California, along with six co-sponsor representatives, introduced House Resolution 121 which called for Japanese action in light of the ongoing struggle for closure by former comfort [33] women. The Resolution was formally passed on July 30, 2007, and made four distinct demands: [I]t is the sense of the House of Representatives that the Government of Japan (1) should formally acknowledge, apologize, and accept historical responsibility in a clear and unequivocal manner for its Imperial Armed Forces' coercion of young women into sexual slavery, known to the world as comfort women, during its colonial and wartime occupation of Asia and the Pacific Islands from the 1930s through the duration of World War II; (2) would help to resolve recurring questions about the sincerity and status of prior statements if the Prime Minister of Japan were to make such an apology as a public statement in his official capacity; (3) should clearly and publicly refute any claims that the sexual enslavement and trafficking of the comfort

women for the Japanese Imperial Army never occurred; and (4) should educate current and future generations about this horrible crime while following the recommendations of the international community with [34] respect to the comfort women.

In December 2007, the European Parliament, the governing body of the European Union, drafted a resolution similar to [35] House Resolution 121. Entitled, Justice for Comfort Women, the resolution demanded: (1) a formal acknowledgment of responsibility by the Japanese government; (2) a removal of the legal obstacles preventing compensation; and (3) unabridged education of the past. The resolution also stressed the urgency with which Japan should act on these issues, stating: the right of individuals to claim reparations against the government should be expressly recognized in national law, and cases for reparations for the survivors of sexual slavery, as a crime under international law, should be prioritized, taking into account the age of the survivors. The Canadian and Dutch parliaments have each followed suit in drafting resolutions against Japan. Canada's resolution demands the Japanese government to issue a formal apology, to admit that its Imperial Military coerced or forced hundreds of [36] thousands of women into sexual slavery, and to restore references in Japanese textbooks to its war crimes. The Dutch parliament's resolution calls for the Japanese government to uphold the 1993 declaration of remorse made by Chief Cabinet Secretary Yohei Kono. The Foreign Affairs Committee of the United Kingdoms Parliament also produced a report in November, 2008 entitled, "Global Security: Japan and Korea" which concluded that Japan should acknowledge the pain caused by the issue of comfort women in order to ensure cooperation between Japan and Korea. Statements of Remorse made by representatives of the Japanese government

Various officials of the Government of Japan have issued the following public statements concerning the comfort system: a) Statement by the Chief Cabinet Secretary Yohei Kono in 1993: The Government of Japan has been conducting a study on the issue of wartime "comfort women" since December 1991. I wish to announce the findings as a result of that study. As a result of the study which indicates that comfort stations were operated in extensive areas for long periods, it is apparent that there existed a great number of comfort women. Comfort stations were operated in response to the request of the military authorities of the day. The then Japanese military was, directly or indirectly, involved in the establishment and management of the comfort stations and the transfer of comfort women. The recruitment of the comfort women was conducted mainly by private recruiters who acted in response to the request of the military. The Government study has revealed that in many cases they were recruited against their own will, through coaxing coercion, etc., and that, at times, administrative/military personnel directly took part in the recruitments. They lived in misery at comfort stations under a coercive atmosphere. As to the origin of those comfort women who were transferred to the war areas, excluding those from Japan, those from the Korean Peninsula accounted for a large part. The Korean Peninsula was under Japanese rule in those days, and their recruitment, transfer, control, etc., were conducted generally against their will, through coaxing, coercion, etc. Undeniably, this was an act, with the involvement of the military authorities of the day, that severely injured the honor and dignity of many women. The Government of Japan would like to take this opportunity once again to extend its sincere apologies and remorse to all those, irrespective of place of origin, who suffered immeasurable pain and incurable physical and psychological wounds as comfort women. It is incumbent upon us, the Government of Japan, to continue to consider seriously, while listening to the views of learned circles, how best we can express this sentiment. We shall face squarely the historical facts as described above instead of evading them, and take them to heart as lessons of history. We hereby reiterated our firm determination never to repeat the same mistake by forever engraving such issues in our memories through the study and teaching of history.

As actions have been brought to court in Japan and interests have been shown in this issue outside Japan, the Government of Japan shall continue to pay full attention to this matter, including private researched related thereto. Prime Minister Tomiichi Murayamas Statement in 1994

b)

On the issue of wartime comfort women, which seriously stained the honor and dignity of many women, I would like to take this opportunity once again to express my profound and sincere remorse and apologies

c) Letters from the Prime Minister of Japan to Individual Comfort Women The issue of comfort women, with the involvement of the Japanese military authorities at that time, was a grave affront to the honor and dignity of a large number of women. As Prime Minister of Japan, I thus extend anew my most sincere apologies and remorse to all the women who endured immeasurable and painful experiences and suffered incurable physical and psychological wounds as comfort women. I believe that our country, painfully aware of its moral responsibilities, with feelings of apology and remorse, should face up squarely to its past history and accurately convey it to future generations.

d) The Diet (Japanese Parliament) passed resolutions in 1995 and 2005 Solemnly reflecting upon the many instances of colonial rule and acts of aggression that occurred in modern world history, and recognizing that Japan carried out such acts in the past and inflicted suffering on the people of other countries, especially in Asia, the Members of this House hereby express deep remorse. (Resolution of the House of Representatives adopted on June 9, 1995)

e) Various Public Statements by Japanese Prime Minister Shinzo Abe I have talked about this matter in the Diet sessions last year, and recently as well, and to the press. I have been consistent. I will stand by the Kono Statement. This is our consistent position. Further, we have been apologizing sincerely to those who suffered immeasurable pain and incurable psychological wounds as comfort women. Former Prime Ministers, including Prime Ministers Koizumi and Hashimoto, have issued letters to the comfort women. I would like to be clear that I carry the same feeling. This has not changed even slightly. (Excerpt from Remarks by Prime Minister Abe at an Interview by NHK, March 11, 2007). I am apologizing here and now. I am apologizing as the Prime Minister and it is as stated in the statement by the Chief Cabinet Secretary Kono. (Excerpt from Remarks by Prime Minister Abe at the Budget Committee, the House of Councilors, the Diet of Japan, March 26, 2007). I am deeply sympathetic to the former comfort women who suffered hardships, and I have expressed my apologies for the extremely agonizing circumstances into which they were placed. (Excerpt from Telephone Conference by Prime Minister Abe to President George W. Bush, April 3, 2007). I have to express sympathy from the bottom of my heart to those people who were taken as wartime comfort women. As a human being, I would like to express my sympathies, and also as prime minister of Japan I need to apologize to them. My administration has been saying all along that we continue to stand by the Kono Statement. We feel responsible for having forced these women to go through that hardship and pain as comfort women under the circumstances at the time. (Excerpt from an interview article "A Conversation with Shinzo Abe" by the Washington Post, April 22, 2007). x x x both personally and as Prime Minister of Japan, my heart goes out in sympathy to all those who suffered extreme hardships as comfort women; and I expressed my apologies for the fact that they were forced to endure such extreme and harsh conditions. Human rights are violated in many parts of the world during the 20th Century; therefore we must work to make the 21st Century a wonderful century in which no human rights are violated. And the Government of Japan and I wish to make significant contributions to that end. (Excerpt from Prime Minister Abe's remarks at the Joint Press Availability after the summit meeting at Camp David between Prime Minister Abe and President Bush, April 27, 2007).

The Asian Women's Fund Established by the Japanese government in 1995, the AWF represented the government's concrete attempt to address [37] its moral responsibility by offering monetary compensation to victims of the comfort women system. The purpose of the AWF was to show atonement of the Japanese people through expressions of apology and remorse to the former wartime comfort [38] women, to restore their honor, and to demonstrate Japans strong respect for women. The AWF announced three programs for former comfort women who applied for assistance: (1) an atonement fund paying 2 million (approximately $20,000) to each woman; (2) medical and welfare support programs, paying 2.5-3 million ($25,000$30,000) for each woman; and (3) a letter of apology from the Japanese Prime Minister to each woman. Funding for the program came from the Japanese government and private donations from the Japanese people. As of March 2006, the AWF provided 700 million (approximately $7 million) for these programs in South Korea, Taiwan, and the Philippines; 380 million (approximately $3.8 million) in Indonesia; and 242 million (approximately $2.4 million) in the Netherlands. On January 15, 1997, the AWF and the Philippine government signed a Memorandum of Understanding for medical and welfare support programs for former comfort women. Over the next five years, these were implemented by the Department of Social Welfare and Development. Our Ruling Stripped down to its essentials, the issue in this case is whether the Executive Department committed grave abuse of discretion in not espousing petitioners claims for official apology and other forms of reparations against Japan. The petition lacks merit. From a Domestic Law Perspective, the Executive Department has the exclusive prerogative to determine whether to espouse petitioners claims against Japan.
[39]

Baker v. Carr explained that:

remains the starting point for analysis under the political question doctrine. There the US Supreme Court

x x x Prominent 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 non-judicial discretion; or the impossibility of a court's 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 embarrassment from multifarious pronouncements by various departments on question.
[40]

In Taada v. Cuenco, we held that 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 the government. It is concerned with issues dependent upon thewisdom, not legality of a particular measure." Certain types of cases often have been found to present political questions. One such category involves questions of foreign relations. It is well-established that "[t]he conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative--'the political'--departments of the government, and the propriety of what may be done [42] in the exercise of this political power is not subject to judicial inquiry or decision." The US Supreme Court has further cautioned that decisions relating to foreign policy are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind [43] for which the Judiciary has neither aptitude, facilities nor responsibility.
[41]

To be sure, not all cases implicating foreign relations present political questions, and courts certainly possess the authority [44] to construe or invalidate treaties and executive agreements. However, the question whether the Philippine government should

espouse claims of its nationals against a foreign government is a foreign relations matter, the authority for which is demonstrably committed by our Constitution not to the courts but to the political branches. In this case, the Executive Department has already decided that it is to the best interest of the country to waive all claims of its nationals for reparations against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the courts to question. Neither could petitioners herein assail the said determination by the Executive Department via the instant petition for certiorari. In the seminal case of US v. Curtiss-Wright Export Corp., the US Supreme Court held that [t]he President is the sole organ of the nation in its external relations, and its sole representative with foreign relations. It is quite apparent that if, in the maintenance of our international relations, embarrassment -- perhaps serious embarrassment -- is to be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible where domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. x x x
[45]

This ruling has been incorporated in our jurisprudence through Bayan v. [46] [47] Executive Secretary and Pimentel v. Executive Secretary; its overreaching principle was, perhaps, best articulated in (now [48] Chief) Justice Punos dissent in Secretary of Justice v. Lantion: x x x The conduct of foreign relations is full of complexities and consequences, sometimes with life and death significance to the nation especially in times of war. It can only be entrusted to that department of government which can act on the basis of the best available information and can decide with decisiveness. x x x It is also the President who possesses the most comprehensive and the most confidential information about foreign countries for our diplomatic and consular officials regularly brief him on meaningful events all over the world. He has also unlimited access to ultra-sensitive military intelligence data. In fine, the presidential role in foreign affairs is dominant and the President is traditionally accorded a wider degree of discretion in the conduct of foreign affairs. The regularity, nay, validity of his actions are adjudged under less stringent standards, lest their judicial repudiation lead to breach of an international obligation, rupture of state relations, forfeiture of confidence, national embarrassment and a plethora of other problems with equally undesirable consequences. The Executive Department has determined that taking up petitioners cause would be inimical to our countrys foreign policy interests, and could disrupt our relations withJapan, thereby creating serious implications for stability in this region. For us to overturn the Executive Departments determination would mean an assessment of the foreign policy judgments by a coordinate political branch to which authority to make that judgment has been constitutionally committed. In any event, it cannot reasonably be maintained that the Philippine government was without authority to negotiate the Treaty of Peace with Japan. And it is equally true that, since time immemorial, when negotiating peace accords and settling international claims: x x x [g]overnments have dealt with x x x private claims as their own, treating them as national assets, and as counters, `chips', in international bargaining. Settlement agreements have lumped, or linked, claims deriving from private debts with others that were intergovernmental in origin, and concessions in regard to one category of claims might be set off against concessions in the other, or against larger political considerations [49] unrelated to debts.

Indeed, except as an agreement might otherwise provide, international settlements generally wipe out the underlying [50] private claims, thereby terminating any recourse under domestic law. In Ware v. Hylton, a case brought by a British subject to recover a debt confiscated by the Commonwealth of Virginia during the war, Justice Chase wrote: I apprehend that the treaty of peace abolishes the subject of the war, and that after peace is concluded, neither the matter in dispute, nor the conduct of either party, during the war, can ever be revived, or brought into contest again. All violences, injuries, or damages sustained by the government, or people of either, during the war, are buried in oblivion; and all those things are implied by the very treaty of peace; and therefore not necessary to be expressed. Hence it follows, that the restitution of, or compensation for, British property confiscated, or extinguished, during the war, by any of the United States, could only be provided for by the treaty of peace; and if there had been no provision, respecting these subjects, in the treaty, they could

not be agitated after the treaty, by the British government, much less by her subjects in courts of justice. (Emphasis supplied).

This practice of settling claims by means of a peace treaty is certainly [51] nothing new. For instance, in Dames & Moore v. Regan, the US Supreme Court held: Not infrequently in affairs between nations, outstanding claims by nationals of one country against the government of another country are sources of friction between the two sovereigns. United States v. Pink, 315 U.S. 203, 225, 62 S.Ct. 552, 563, 86 L.Ed. 796 (1942). To resolve these difficulties, nations have often entered into agreements settling the claims of their respective nationals. As one treatise writer puts it, international agreements settling claims by nationals of one state against the government of another are established international practice reflecting traditional international theory. L. Henkin, Foreign Affairs and the Constitution 262 (1972). Consistent with that principle, the United States has repeatedly exercised its sovereign authority to settle the claims of its nationals against foreign countries. x x x Under such agreements, the President has agreed to renounce or extinguish claims of United States nationals against foreign governments in return for lump-sum payments or the establishment of arbitration procedures. To be sure, many of these settlements were encouraged by the United States claimants themselves, since a claimant's only hope of obtaining any payment at all might lie in having his Government negotiate a diplomatic settlement on his behalf. But it is also undisputed that the United States has sometimes disposed of the claims of its citizens without their consent, or even without consultation with them, usually without exclusive regard for their interests, as distinguished from those of the nation as a whole. Henkin, supra, at 262-263. Accord, Restatement (Second) of Foreign Relations Law of the United States 213 (1965)(President may waive or settle a claim against a foreign state x x x [even] without the consent of the [injured] national). It is clear that the practice of settling claims continues today.

Respondents explain that the Allied Powers concluded the Peace Treaty with Japan not necessarily for the complete atonement of the suffering caused by Japanese aggression during the war, not for the payment of adequate reparations, but for security purposes. The treaty sought to prevent the spread of communism in Japan, which occupied a strategic position in the Far East. Thus, the Peace Treaty compromised individual claims in the collective interest of the free world. This was also the finding in a similar case involving American victims of Japanese slave labor during the war. In a [53] consolidated case in the Northern District of California, the court dismissed the lawsuits filed, relying on the 1951 peace treaty [54] with Japan, because of the following policy considerations: The official record of treaty negotiations establishes that a fundamental goal of the agreement was to settle the reparations issue once and for all. As the statement of the chief United States negotiator, John Foster Dulles, makes clear, it was well understood that leaving open the possibility of future claims would be an unacceptable impediment to a lasting peace: Reparation is usually the most controversial aspect of peacemaking. The present peace is no exception. On the one hand, there are claims both vast and just. Japan's aggression caused tremendous cost, losses and suffering. On the other hand, to meet these claims, there stands a Japan presently reduced to four home islands which are unable to produce the food its people need to live, or the raw materials they need to work. x x x The policy of the United States that Japanese liability for reparations should be sharply limited was informed by the experience of six years of United States-led occupation of Japan. During the occupation the Supreme Commander of the Allied Powers (SCAP) for the region, General Douglas MacArthur, confiscated Japanese assets in conjunction with the task of managing the economic affairs of the vanquished nation and with a view to reparations payments. It soon became clear that Japan's financial condition would render any aggressive reparations plan an exercise in futility. Meanwhile, the importance of a stable, democratic Japan as a bulwark to communism in the region increased. At the end of 1948, MacArthur expressed the view that [t]he use of reparations as a weapon to retard the reconstruction of a viable economy in Japan should be combated with all possible means and recommended that the reparations issue be settled finally and without delay.
[52]

That this policy was embodied in the treaty is clear not only from the negotiations history but also from the Senate Foreign Relations Committee report recommending approval of the treaty by the Senate. The committee noted, for example: Obviously insistence upon the payment of reparations in any proportion commensurate with the claims of the injured countries and their nationals would wreck Japan's economy, dissipate any credit that it may possess at present, destroy the initiative of its people, and create misery and chaos in which the seeds of discontent and communism would flourish. In short, [it] would be contrary to the basic purposes and policy of x x x the United States x x x. We thus hold that, from a municipal law perspective, that certiorari will not lie. As a general principle and particularly here, where such an extraordinary length of time has lapsed between the treatys conclusion and our consideration the Executive must be given ample discretion to assess the foreign policy considerations of espousing a claim against Japan, from the standpoint of both the interests of the petitioners and those of the Republic, and decide on that basis if apologies are sufficient, and whether further steps are appropriate or necessary. The Philippines is not under any international obligation to espouse petitioners claims.

In the international sphere, traditionally, the only means available for individuals to bring a claim within the international legal [55] system has been when the individual is able to persuade a government to bring a claim on the individuals behalf. Even then, it is not the individuals rights that are being asserted, but rather, the states own rights. Nowhere is this position more clearly reflected than in the dictum of the Permanent Court of International Justice (PCIJ) in the 1924 Mavrommatis Palestine Concessions Case: By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own right to ensure, in the person of its subjects, respect for the rules of international law. The question, therefore, whether the present dispute originates in an injury to a private interest, which in point of fact is the case in many international disputes, is irrelevant from this standpoint. Once a State has taken up a case on behalf of one of its subjects before an [56] international tribunal, in the eyes of the latter the State is sole claimant. Since the exercise of diplomatic protection is the right of the State, reliance on the right is within the absolute discretion of states, and the decision whether to exercise the discretion may invariably be influenced by political considerations other than the [57] legal merits of the particular claim. As clearly stated by the ICJ in Barcelona Traction: The Court would here observe that, within the limits prescribed by international law, a State may exercise diplomatic protection by whatever means and to whatever extent it thinks fit, for it is its own right that the State is asserting. Should the natural or legal person on whose behalf it is acting consider that their rights are not adequately protected, they have no remedy in international law. All they can do is resort to national law, if means are available, with a view to furthering their cause or obtaining redress. The municipal legislator may lay upon the State an obligation to protect its citizens abroad, and may also confer upon the national a right to demand the performance of that obligation, and clothe the right with corresponding sanctions. However, all these questions remain within the province of municipal law and do not [58] affect the position internationally. (Emphasis supplied)

The State, therefore, is the sole judge to decide whether its protection will be granted, to what extent it is granted, and when will it cease. It retains, in this respect, a discretionary power the exercise of which may be determined by considerations of a political or other nature, unrelated to the particular case. The International Law Commissions (ILCs) Draft Articles on Diplomatic Protection fully support this traditional view. [59] They (i) state that "the right of diplomatic protection belongs to or vests in the State, (ii) affirm its discretionary nature by clarifying [60] that diplomatic protection is a "sovereign prerogative" of the State; and (iii) stress that the state "has the right to exercise diplomatic protection [61] on behalf of a national. It is under no duty or obligation to do so." It has been argued, as petitioners argue now, that the State has a duty to protect its nationals and act on his/her behalf [62] when rights are injured. However, at present, there is no sufficient evidence to establish a general international obligation for

States to exercise diplomatic protection of their own nationals abroad. Though, perhaps desirable, neither state practice nor opinio juris has evolved in such a direction. If it is a duty internationally, it is only a moral and not a legal duty, and there is no [64] means of enforcing its fulfillment. We fully agree that rape, sexual slavery, torture, and sexual violence are morally reprehensible as well as legally prohibited [65] under contemporary international law. However, petitioners take quite a theoretical leap in claiming that these proscriptions automatically imply that that the Philippines is under a non-derogable obligation to prosecute international crimes, particularly since petitioners do not demand the imputation of individual criminal liability, but seek to recover monetary reparations from the state of Japan. Absent the consent of states, an applicable treaty regime, or a directive by the Security Council, there is no non-derogable duty to institute proceedings against Japan. Indeed,precisely because of states reluctance to directly prosecute claims against another state, recent developments support the modern trend to empower individuals to directly participate in [66] suits against perpetrators of international crimes. Nonetheless, notwithstanding an array of General Assembly resolutions calling for the prosecution of crimes against humanity and the strong policy arguments warranting such a rule, the practice of [67] states does not yet support the present existence of an obligation to prosecute international crimes. Of course a customary duty of prosecution is ideal, but we cannot find enough evidence to reasonably assert its existence. To the extent that any state practice in this area is widespread, it is in the practice of granting amnesties, immunity, selective prosecution, or de facto impunity [68] to those who commit crimes against humanity. Even the invocation of jus cogens norms and erga omnes obligations will not alter this analysis. Even if we sidestep the question of whether jus cogens norms existed in 1951, petitioners have not deigned to show that the crimes committed by the Japanese army violated jus cogens prohibitions at the time the Treaty of Peace was signed, or that the duty to prosecute perpetrators of international crimes is an erga omnes obligation or has attained the status of jus cogens. The term erga omnes (Latin: in relation to everyone) in international law has been used as a legal term describing obligations owed by States towards the community of states as a whole. The concept was recognized by the ICJ in Barcelona Traction: x x x an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis--vis another State in the field of diplomatic protection. By their very nature, the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law others are conferred by international instruments of a universal or quasi-universal character. The Latin phrase, erga omnes, has since become one of the rallying cries of those sharing a belief in the emergence of a value-based international public order. However, as is so often the case, the reality is neither so clear nor so bright. Whatever the [69] relevance of obligations erga omnes as a legal concept, its full potential remains to be realized in practice. The term is closely connected with the international law concept of jus cogens. In international law, the term jus cogens (literally, compelling law) refers to norms that command peremptory authority, superseding conflicting treaties and custom. Jus cogens norms are considered peremptory in the sense that they are mandatory, do not admit derogation, and can be modified [70] only by general international norms of equivalent authority. Early strains of the jus cogens doctrine have existed since the 1700s, but peremptory norms began to attract greater scholarly attention with the publication of Alfred von Verdross's influential 1937 article, Forbidden Treaties in International [72] Law. The recognition of jus cogens gained even more force in the 1950s and 1960s with the ILCs preparation of the Vienna [73] Convention on the Law of Treaties (VCLT). Though there was a consensus that certain international norms had attained the [74] status of jus cogens, the ILC was unable to reach a consensus on the proper criteria for identifying peremptory norms. After an extended debate over these and other theories of jus cogens, the ILC concluded ruefully in 1963 that there is not as yet any generally accepted criterion by which to identify a general rule of international law as having the character of jus [75] cogens. In a commentary accompanying the draft convention, the ILC indicated that the prudent course seems to be to x x x [76] leave the full content of this rule to be worked out in State practice and in the jurisprudence of international tribunals. Thus, [77] while the existence ofjus cogens in international law is undisputed, no consensus exists on its substance, beyond a tiny core of [78] principles and rules. Of course, we greatly sympathize with the cause of petitioners, and we cannot begin to comprehend the unimaginable horror they underwent at the hands of the Japanese soldiers. We are also deeply concerned that, in apparent contravention of
[71]

[63]

fundamental principles of law, the petitioners appear to be without a remedy to challenge those that have offended them before appropriate fora. Needless to say, our government should take the lead in protecting its citizens against violation of their fundamental human rights. Regrettably, it is not within our power to order the Executive Department to take up the petitioners cause. Ours is only the power to urge and exhort the Executive Department to take up petitioners cause. WHEREFORE, the Petition is hereby DISMISSED. SO ORDERED.