Republic of the Philippines That as being OIC Governor of the Province of Rizal and in the performance of my

SUPREME COURT duties thereof, I among others, have signed as I did sign the unnumbered
Manila memorandum ordering the replacement of all the barangay officials of all the
barangay(s) in the Municipality of Taytay, Rizal;
EN BANC
That the above cited memorandum dated December 1, 1986 was signed by me
personally on February 8,1987;
G.R. No. 78059 August 31, 1987

That said memorandum was further deciminated (sic) to all concerned the
ALFREDO M. DE LEON, ANGEL S. SALAMAT, MARIO C. STA. ANA, JOSE C. TOLENTINO, ROGELIO J. DE LA
following day, February 9. 1987.
ROSA and JOSE M. RESURRECCION, petitioners,
vs.
HON. BENJAMIN B. ESGUERRA, in his capacity as OIC Governor of the Province of Rizal, HON. ROMEO FURTHER AFFIANT SAYETH NONE.
C. DE LEON, in his capacity as OIC Mayor of the Municipality of Taytay, Rizal, FLORENTINO G. MAGNO,
REMIGIO M. TIGAS, RICARDO Z. LACANIENTA, TEODORO V. MEDINA, ROSENDO S. PAZ, and TERESITA L.
Pasig, Metro Manila, March 23, 1987.
TOLENTINO, respondents.

MELENCIO-HERRERA, J.:
An original action for Prohibition instituted by petitioners seeking to enjoin respondents from replacing
them from their respective positions as Barangay Captain and Barangay Councilmen of Barangay
Dolores, Municipality of Taytay, Province of Rizal.
As required by the Court, respondents submitted their Comment on the Petition, and petitioner's their
Reply to respondents' Comment.
In the Barangay elections held on May 17, 1982, petitioner Alfredo M. De Leon was elected Barangay
Captain and the other petitioners Angel S. Salamat, Mario C. Sta. Ana, Jose C. Tolentino, Rogelio J. de la
Rosa and Jose M. Resurreccion, as Barangay Councilmen of Barangay Dolores, Taytay, Rizal under Batas
Pambansa Blg. 222, otherwise known as the Barangay Election Act of 1982.
Before us now, petitioners pray that the subject Memoranda of February 8, 1987 be declared null and
void and that respondents be prohibited from taking over their positions of Barangay Captain and
Barangay Councilmen, respectively. Petitioners maintain that pursuant to Section 3 of the Barangay
Election Act of 1982 (BP Blg. 222), their terms of office "shall be six (6) years which shall commence on
June 7, 1982 and shall continue until their successors shall have elected and shall have qualified," or up
to June 7, 1988. It is also their position that with the ratification of the 1987 Constitution, respondent
OIC Governor no longer has the authority to replace them and to designate their successors.
On the other hand, respondents rely on Section 2, Article III of the Provisional Constitution, promulgated
on March 25, 1986, which provided:
SECTION 2. All elective and appointive officials and employees under the 1973
Constitution shall continue in office until otherwise provided by proclamation or
executive order or upon the designation or appointment and qualification of their
successors, if such appointment is made within a period of one year from February
25,1986.

By reason of the foregoing provision, respondents contend that the terms of office of elective and
On February 9, 1987, petitioner Alfredo M, de Leon received a Memorandum antedated December 1,
appointive officials were abolished and that petitioners continued in office by virtue of the aforequoted
1986 but signed by respondent OIC Governor Benjamin Esguerra on February 8, 1987 designating
provision and not because their term of six years had not yet expired; and that the provision in the
respondent Florentino G. Magno as Barangay Captain of Barangay Dolores, Taytay, Rizal. The designation
Barangay Election Act fixing the term of office of Barangay officials to six (6) years must be deemed to
made by the OIC Governor was "by authority of the Minister of Local Government."
have been repealed for being inconsistent with the aforequoted provision of the Provisional
Constitution.
Also on February 8, 1987, respondent OIC Governor signed a Memorandum, antedated December 1,
1986 designating respondents Remigio M. Tigas, Ricardo Z. Lacanienta Teodoro V. Medina, Roberto S.
Examining the said provision, there should be no question that petitioners, as elective officials under the
Paz and Teresita L. Tolentino as members of the Barangay Council of the same Barangay and
1973 Constitution, may continue in office but should vacate their positions upon the occurrence of any
Municipality.
of the events mentioned. 1

That the Memoranda had been antedated is evidenced by the Affidavit of respondent OIC Governor, the
Since the promulgation of the Provisional Constitution, there has been no proclamation or executive
pertinent portions of which read:
order terminating the term of elective Barangay officials. Thus, the issue for resolution is whether or not
the designation of respondents to replace petitioners was validly made during the one-year period which
xxx xxx xxx ended on February 25, 1987.

That I am the OIC Governor of Rizal having been appointed as such on March 20,
1986;
Considering the candid Affidavit of respondent OIC Governor, we hold that February 8, 1977, should be
considered as the effective date of replacement and not December 1,1986 to which it was ante dated, in
keeping with the dictates of justice.

But while February 8, 1987 is ostensibly still within the one-year deadline, the aforequoted provision in
the Provisional Constitution must be deemed to have been overtaken by Section 27, Article XVIII of the
1987 Constitution reading.

SECTION 27. This Constitution shall take effect immediately upon its ratification by
a majority of the votes cast in a plebiscite held for the purpose and shall supersede
all previous Constitutions.

The 1987 Constitution was ratified in a plebiscite on February 2, 1987. By that date, therefore, the
Provisional Constitution must be deemed to have been superseded. Having become inoperative,
respondent OIC Governor could no longer rely on Section 2, Article III, thereof to designate respondents
to the elective positions occupied by petitioners.

Petitioners must now be held to have acquired security of tenure specially considering that the Barangay
Election Act of 1982 declares it "a policy of the State to guarantee and promote the autonomy of the
barangays to ensure their fullest development as self-reliant communities. 2 Similarly, the 1987
Constitution ensures the autonomy of local governments and of political subdivisions of which the
barangays form a part, 3 and limits the President's power to "general supervision" over local
governments. 4 Relevantly, Section 8, Article X of the same 1987 Constitution further provides in part:

Sec. 8. The term of office of elective local officials, except barangay officials, which
shall be determined by law, shall be three years ...

Until the term of office of barangay officials has been determined by law, therefore, the term of office of
six (6) years provided for in the Barangay Election Act of 1982 5 should still govern.

Contrary to the stand of respondents, we find nothing inconsistent between the term of six (6) years for
elective Barangay officials and the 1987 Constitution, and the same should, therefore, be considered as
still operative, pursuant to Section 3, Article XVIII of the 1987 Constitution, reading:

Sec. 3. All existing laws, decrees, executive orders, proclamations letters of

instructions, and other executive issuances not inconsistent, with this Constitution
shall remain operative until amended, repealed or revoked.

WHEREFORE, (1) The Memoranda issued by respondent OIC Governor on February 8, 1987 designating
respondents as the Barangay Captain and Barangay Councilmen, respectively, of Barangay Dolores,
Taytay, Rizal, are both declared to be of no legal force and effect; and (2) the Writ of Prohibition is
granted enjoining respondents perpetually from proceeding with the ouster/take-over of petitioners'
positions subject of this Petition. Without costs.

SO ORDERED.
Republic of the Philippines district who shall have the same qualifications as those of Congressmen, to be elected on the second
SUPREME COURT Tuesday of November, 1970 in accordance with the Revised Election Code.
Manila
After the adoption of said Res. No. 2 in 1967 but before the November elections of that year, Congress,
EN BANC acting as a legislative body, enacted Republic Act No. 4914 implementing the aforesaid Resolution No. 2
and practically restating in toto the provisions of said Resolution No. 2.

On June 17, 1969, Congress, also acting as a Constituent Assembly, passed Resolution No. 4 amending
the aforesaid Resolution No. 2 of March 16, 1967 by providing that the convention "shall be composed of
G.R. No. L-32432 September 11, 1970
320 delegates apportioned among the existing representative districts according to the number of their
respective inhabitants: Provided, that a representative district shall be entitled to at least two delegates,
MANUEL B. IMBONG, petitioner, who shall have the same qualifications as those required of members of the House of
vs. Representatives," 1 "and that any other details relating to the specific apportionment of delegates,
JAIME FERRER, as Chairman of the Comelec, LINO M. PATAJO and CESAR MILAFLOR, as members election of delegates to, and the holding of, the Constitutional Convention shall be embodied in an
thereof, respondents. implementing legislation: Provided, that it shall not be inconsistent with the provisions of this
Resolution." 2
G.R. No. L-32443 September 11, 1970
On August 24, 1970, Congress, acting as a legislative body, enacted Republic Act No. 6132, implementing
IN THE MATTER OF A PETITION FOR DECLARATORY JUDGMENT REGARDING THE VALIDITY OF R.A. No. Resolutions Nos. 2 and 4, and expressly repealing R.A. No.
6132, OTHERWISE KNOWN AS THE CONSTITUTIONAL CONVENTION ACT OF 1970. RAUL M. 4914. 3
GONZALES,petitioner,
vs. Petitioner Raul M. Gonzales assails the validity of the entire law as well as the particular provisions
COMELEC, respondent. embodied in Sections 2, 4, 5, and par. 1 of 8(a). Petitioner Manuel B. Imbong impugns the
constitutionality of only par. I of Sec. 8(a) of said R.A. No. 6132 practically on the same grounds advanced
Manuel B. Imbong in his own behalf. by petitioner Gonzales.

Raul M. Gonzales in his own behalf. I

Office of the Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General Ricardo L. Pronove, Jr.,
and Solicitors Raul I. Goco, Bernardo P. Pardo, Rosalio A. de Leon, Vicente A. Torres and Guillermo C.
Nakar for respondents.
Lorenzo Taada, Arturo Tolentino, Jovito Salonga and Emmanuel Pelaez as amici curiae.
The validity of Sec. 4 of R.A. No. 6132, which considers, all public officers and employees, whether
elective or appointive, including members of the Armed Forces of the Philippines, as well as officers and
employees of corporations or enterprises of the government, as resigned from the date of the filing of
their certificates of candidacy, was recently sustained by this Court, on the grounds, inter alia, that the
same is merely an application of and in consonance with the prohibition in Sec. 2 of Art. XII of the
Constitution and that it does not constitute a denial of due process or of the equal protection of the law.
Likewise, the constitutionality of paragraph 2 of Sec. 8(a) of R.A. No. 6132 was upheld. 4

MAKASIAR, J.:
These two separate but related petitions for declaratory relief were filed pursuant to Sec. 19 of R.A. No.
6132 by petitioners Manuel B. Imbong and Raul M. Gonzales, both members of the Bar, taxpayers and
interested in running as candidates for delegates to the Constitutional Convention. Both impugn the
constitutionality of R.A. No. 6132, claiming during the oral argument that it prejudices their rights as
such candidates. After the Solicitor General had filed answers in behalf the respondents, hearings were
held at which the petitioners and the amici curiae, namely Senator Lorenzo Taada, Senator Arturo
Tolentino, Senator Jovito Salonga, and Senator Emmanuel Pelaez argued orally.
It will be recalled that on March 16, 1967, Congress, acting as a Constituent Assembly pursuant to Art. XV
of the Constitution, passed Resolution No. 2 which among others called for a Constitutional Convention
to propose constitutional amendments to be composed of two delegates from each representative
II
Without first considering the validity of its specific provisions, we sustain the constitutionality of the
enactment of R.A. No. 6132 by Congress acting as a legislative body in the exercise of its broad law-
making authority, and not as a Constituent Assembly, because
1. Congress, when acting as a Constituent Assembly pursuant to Art. XV of the
Constitution, has full and plenary authority to propose Constitutional amendments
or to call a convention for the purpose, by a three-fourths vote of each House in
joint session assembled but voting separately. Resolutions Nos. 2 and 4 calling for
a constitutional convention were passed by the required three-fourths vote.
2. The grant to Congress as a Constituent Assembly of such plenary authority to
call a constitutional convention includes, by virtue of the doctrine of necessary
 implication, all other powers essential to the effective exercise of the principal
power granted, such as the power to fix the qualifications, number,
apportionment, and compensation of the delegates as well as appropriation of
funds to meet the expenses for the election of delegates and for the operation of
the Constitutional Convention itself, as well as all other implementing details
indispensable to a fruitful convention. Resolutions Nos. 2 and 4 already embody
the above-mentioned details, except the appropriation of funds.
3. While the authority to call a constitutional convention is vested by the present
Constitution solely and exclusively in Congress acting as a Constituent Assembly,
the power to enact the implementing details, which are now contained in
Resolutions Nos. 2 and 4 as well as in R.A. No. 6132, does not exclusively pertain to
Congress acting as a Constituent Assembly. Such implementing details are matters
within the competence of Congress in the exercise of its comprehensive legislative
power, which power encompasses all matters not expressly or by necessary
implication withdrawn or removed by the Constitution from the ambit of
legislative action. And as lone as such statutory details do not clash with any
specific provision of the constitution, they are valid.
4. Consequently, when Congress, acting as a Constituent Assembly, omits to
provide for such implementing details after calling a constitutional convention,
Congress, acting as a legislative body, can enact the necessary implementing
legislation to fill in the gaps, which authority is expressly recognized in Sec. 8 of
Res No. 2 as amended by Res. No. 4.
5. The fact that a bill providing for such implementing details may be vetoed by the
President is no argument against conceding such power in Congress as a legislative
body nor present any difficulty; for it is not irremediable as Congress can override
the Presidential veto or Congress can reconvene as a Constituent Assembly and
adopt a resolution prescribing the required implementing details.
III
Petitioner Raul M. Gonzales asserts that Sec. 2 on the apportionment of delegates is not in accordance
with proportional representation and therefore violates the Constitution and the intent of the law itself,
without pinpointing any specific provision of the Constitution with which it collides.
Unlike in the apportionment of representative districts, the Constitution does not expressly or impliedly
require such apportionment of delegates to the convention on the basis of population in each
congressional district. Congress, sitting as a Constituent Assembly, may constitutionally allocate one
delegate for, each congressional district or for each province, for reasons of economy and to avoid
having an unwieldy convention. If the framers of the present Constitution wanted the apportionment of
delegates to the convention to be based on the number of inhabitants in each representative district,
they would have done so in so many words as they did in relation to the apportionment of the
representative districts. 5
The apportionment provided for in Sec. 2 of R.A. No. 6132 cannot possibly conflict with its own intent
expressed therein; for it merely obeyed and implemented the intent of Congress acting as a Constituent
Assembly expressed in Sec. 1 of Res. No. 4, which provides that the 320 delegates should be apportioned
among the existing representative districts according to the number of their respective inhabitants, but
fixing a minimum of at least two delegates for a representative district. The presumption is that the
factual predicate, the latest available official population census, for such apportionment was presented
to Congress, which, accordingly employed a formula for the necessary computation to effect the desired
proportional representation.
The records of the proceedings on Senate Bill No. 77 sponsored by Senator Pelaez which is now R.A. No.
6132, submitted to this Tribunal by the amici curiae, show that it based its apportionment of the
delegates on the 1970 official preliminary population census taken by the Bureau of Census and Statistics
from May 6 to June 30, 1976; and that Congress adopted the formula to effect a reasonable
apportionment of delegates. The Director of the Bureau of Census and Statistics himself, in a letter to
Senator Pelaez dated July 30, 1970, stated that "on the basis of the preliminary count of the population,
we have computed the distribution of delegates to the Constitutional Convention based on Senate Bill 77
(p. 2 lines 5 to 32 and p. 3 line 12) which is a fair and an equitable method of distributing the delegates
pursuant to the provisions of the joint Resolution of both Houses No. 2, as amended. Upon your request
at the session of the Senate-House Conference Committee meeting last night, we are submitting
herewith the results of the computation on the basis of the above-stated method."
Even if such latest census were a preliminary census, the same could still be a valid basis for such
apportionment.6 The fact that the lone and small congressional district of Batanes, may be over-
represented, because it is allotted two delegates by R.A. No. 6132 despite the fact that it has a
population very much less than several other congressional districts, each of which is also allotted only
two delegates, and therefore under-represented, vis-a-vis Batanes alone, does not vitiate the
apportionment as not effecting proportional representation. Absolute proportional apportionment is not
required and is not possible when based on the number of inhabitants, for the population census cannot
be accurate nor complete, dependent as it is on the diligence of the census takers, aggravated by the
constant movement of population, as well as daily death and birth. It is enough that the basis employed
is reasonable and the resulting apportionment is substantially proportional. Resolution No. 4 fixed a
minimum of two delegates for a congressional district.
While there may be other formulas for a reasonable apportionment considering the evidence submitted
to Congress by the Bureau of Census and Statistics, we are not prepared to rule that the computation
formula adopted by, Congress for proportional representation as, directed in Res. No. 4 is unreasonable
and that the apportionment provided in R.A. No. 6132 does not constitute a substantially proportional
representation.
In the Macias case, relied on by petitioner Gonzales, the apportionment law, which was nullified as
unconstitutional, granted more representatives to a province with less population than the provinces
with more inhabitants. Such is not the case here, where under Sec. 2 of R.A. No. 6132 Batanes is allotted
only two delegates, which number is equal to the number of delegates accorded other provinces with
more population. The present petitions therefore do not present facts which fit the mould of the
doctrine in the case of Macias et al. vs. Comelec, supra.
The impossibility of absolute proportional representation is recognized by the Constitution itself when it
directs that the apportionment of congressional districts among the various provinces shall be "as nearly
as may be according to their respective inhabitants, but each province shall have at least one member"
(Sec. 5, Art. VI, Phil. Const., emphasis supplied). The employment of the phrase "as nearly as may be
according to their respective inhabitants" emphasizes the fact that the human mind can only
approximate a reasonable apportionment but cannot effect an absolutely proportional representation
with mathematical precision or exactitude.
IV
Sec. 5 of R.A. 6132 is attacked on the ground that it is an undue deprivation of liberty without due
process of law and denies the equal protection of the laws. Said Sec. 5 disqualifies any elected delegate
from running "for any public office in any election" or from assuming "any appointive office or position in
any branch of the government government until after the final adjournment of the Constitutional
Convention."
That the citizen does not have any inherent nor natural right to a public office, is axiomatic under our
constitutional system. The State through its Constitution or legislative body, can create an office and
define the qualifications and disqualifications therefor as well as impose inhibitions on a public officer.
Consequently, only those with qualifications and who do not fall under any constitutional or statutory
inhibition can be validly elected or appointed to a public office. The obvious reason for the questioned
inhibition, is to immunize the delegates from the perverting influence of self-interest, party interest or
vested interest and to insure that he dedicates all his time to performing solely in the interest of the
nation his high and well nigh sacred function of formulating the supreme law of the land, which may
endure for generations and which cannot easily be changed like an ordinary statute. With the
disqualification embodied in Sec. 5, the delegate will not utilize his position as a bargaining leverage for
concessions in the form of an elective or appointive office as long as the convention has not finally
adjourned. The appointing authority may, by his appointing power, entice votes for his own proposals.
Not love for self, but love for country must always motivate his actuations as delegate; otherwise the
several provisions of the new Constitution may only satisfy individual or special interests, subversive of
the welfare of the general citizenry. It should be stressed that the disqualification is not permanent but
only temporary only to continue until the final adjournment of the convention which may not extend
beyond one year. The convention that framed the present Constitution finished its task in approximately
seven months from July 30, 1934 to February 8, 1935.
As admitted by petitioner Gonzales, this inhibition finds analogy in the constitutional provision
prohibiting a member of Congress, during the time for which he was elected, from being appointed to
any civil office which may have been created or the emolument whereof shall have been increased while
he was a member of the Congress. (Sec. 16, Art. VI, Phil. Constitution.)
As observed by the Solicitor General in his Answer, the overriding objective of the challenged
disqualification, temporary in nature, is to compel the elected delegates to serve in full their term as
such and to devote all their time to the convention, pursuant to their representation and commitment to
the people; otherwise, his seat in the convention will be vacant and his constituents will be deprived of a
voice in the convention. The inhibition is likewise "designed to prevent popular political figures from
controlling elections or positions. Also it is a brake on the appointing power, to curtail the latter's desire
to 'raid' the convention of "talents" or attempt to control the convention." (p. 10, Answer in L-32443.)
Thus the challenged disqualification prescribed in Sec. 5 of R.A. No. 6132 is a valid limitation on the right
to public office pursuant to state police power as it is reasonable and not arbitrary.
The discrimination under Sec. 5 against delegates to the Constitutional Convention is likewise
constitutional; for it is based on a substantial distinction which makes for real differences, is germane to
the purposes of the law, and applies to all members of the same class. 7 The function of a delegate is
more far-reaching and its effect more enduring than that of any ordinary legislator or any other public
officer. A delegate shapes the fundamental law of the land which delineates the essential nature of the
government, its basic organization and powers, defines the liberties of the people, and controls all other
laws. Unlike ordinary statutes, constitutional amendments cannot be changed in one or two years. No
other public officer possesses such a power, not even the members of Congress unless they themselves,
propose constitutional amendments when acting as a Constituent Assembly pursuant to Art. XV of the
Constitution. The classification, therefore, is neither whimsical nor repugnant to the sense of justice of
the community.
As heretofore intimated, the inhibition is relevant to the object of the law, which is to insure that the
proposed amendments are meaningful to the masses of our people and not designed for the
enhancement of selfishness, greed, corruption, or injustice.
Lastly, the disqualification applies to all the delegates to the convention who will be elected on the
second Tuesday of November, 1970.
V
Paragraph 1, Sec. 8(a) of R.A. No. 6132 is impugned by both petitioners as violative of the constitutional
guarantees of due process, equal protection of the laws, freedom of expressions, freedom of assembly
and freedom of association.
This Court ruled last year that the guarantees of due process, equal protection of the laws, peaceful
assembly, free expression, and the right of association are neither absolute nor illimitable rights; they are
always subject to the pervasive and dormant police power of the State and may be lawfully abridged to
serve appropriate and important public interests. 8
In said Gonzalez vs. Comelec case the Court applied the clear and present danger test to determine
whether a statute which trenches upon the aforesaid Constitutional guarantees, is a legitimate exercise
of police power. 9
Paragraph 1 of Sec. 8(a), R.A. No. 6132 prohibits:
1. any candidate for delegate to the convention
(a) from representing, or
(b) allowing himself to be represented as being a candidate
of any political party or any other organization; and
2. any political party, political group, political committee, civic, religious,
professional or other organizations or organized group of whatever nature from
(a) intervening in the nomination of any such candidate or in
the filing of his certificate, or
(b) from giving aid or support directly or indirectly, material
or otherwise, favorable to or against his campaign for
election.
The ban against all political parties or organized groups of whatever nature contained in par. 1 of Sec.
8(a), is confined to party or organization support or assistance, whether material, moral, emotional or
otherwise. The very Sec. 8(a) in its provisos permits the candidate to utilize in his campaign the help of
the members of his family within the fourth civil degree of consanguinity or affinity, and a campaign staff
composed of not more than one for every ten precincts in his district. It allows the full exercise of his
freedom of expression and his right to peaceful assembly, because he cannot be denied any permit to
hold a public meeting on the pretext that the provision of said section may or will be violated. The right
of a member of any political party or association to support him or oppose his opponent is preserved as
long as such member acts individually. The very party or organization to which he may belong or which
may be in sympathy with his cause or program of reforms, is guaranteed the right to disseminate
information about, or to arouse public interest in, or to advocate for constitutional reforms, programs,
policies or constitutional proposals for amendments.
It is therefore patent that the restriction contained in Sec. 8(a) is so narrow that the basic constitutional
rights themselves remain substantially intact and inviolate. And it is therefore a valid infringement of the
aforesaid constitutional guarantees invoked by petitioners.
In the aforesaid case of Gonzales vs. Comelec, supra, this Court unanimously sustained the validity of the
limitation on the period for nomination of candidates in Sec. 50-A of R.A. No. 4880, thus:
The prohibition of too early nomination of candidates presents a question that is
not too formidable in character. According to the act: "It shall be unlawful for any
political party, political committee, or political group to nominate candidates for
any elective public office voted for at large earlier than one hundred and fifty days
immediately preceding an election, and for any other elective public office earlier
than ninety days immediately preceding an election.
The right of association is affected. Political parties have less freedom as to the
time during which they may nominate candidates; the curtailment is not such,
however, as to render meaningless such a basic right. Their scope of legitimate
activities, save this one, is not unduly narrowed. Neither is there infringement of
their freedom to assemble. They can do so, but not for such a purpose. We sustain
its validity. We do so unanimously. 10
In said Gonzales vs. Comelec case, this Court likewise held that the period for the conduct of an election
campaign or partisan political activity may be limited without offending the aforementioned
constitutional guarantees as the same is designed also to prevent a "clear and present danger of a
substantive evil, the debasement of the electoral process." 11
Even if the partisan activity consists of (a) forming organizations, associations, clubs, committees or
other group of persons for the purpose of soliciting votes and/or undertaking any campaign or
propaganda for or against a party or candidate; (b) holding political conventions, caucuses, conferences,
meetings, rallies, parades or other similar assemblies for the purpose of soliciting votes and/or
undertaking any campaign or propaganda for or against any candidate or party; and (c) giving, soliciting,
or receiving contributions for election campaign either directly or indirectly, (Sec. 50-B, pars. (a), (b), and
(c), R.A. 4880), the abridgment was still affirmed as constitutional by six members of this Court, which
could not "ignore ... the legislative declaration that its enactment was in response to a serious
substantive evil affecting the electoral process, not merely in danger of happening, but actually in
existence, and likely to continue unless curbed or remedied. To assert otherwise would be to close one's
eyes to the reality of the situation." 12;
Likewise, because four members dissented, this Court in said case of Gonzales vs. Comelec, supra, failed
to muster the required eight votes to declare as unconstitutional the limitation on the period for (a)
making speeches, announcements or commentaries or holding interviews for or against the election of
any party or candidate for public office; (b) publishing or distributing campaign literature or materials;
and (e) directly or indirectly soliciting votes and/or undertaking any campaign or propaganda for or
against any candidate or party specified in Sec. 50-B, pars. (c), (d) & (e) of R.A. 4880. 13
The debasement of the electoral process as a substantive evil exists today and is one of the major
compelling interests that moved Congress into prescribing the total ban contained in par. 1 of Sec. 8(a)
of R.A. No. 6132, to justify such ban. In the said Gonzales vs. Comelec case, this Court gave "due
recognition to the legislative concern to cleanse, and if possible, render spotless, the electoral
process," 14 impressed as it was by the explanation made by the author of R.A. No. 4880, Sen. Lorenzo
Taada, who appeared as amicus curiae, "that such provisions were deemed by the legislative body to be
part and parcel of the necessary and appropriate response not merely to a clear and present danger but
to the actual existence of a grave and substantive evil of excessive partisanship, dishonesty and
corruption as well as violence that of late has marred election campaigns and partisan political activities
in this country. He did invite our attention likewise to the well-settled doctrine that in the choice of
remedies for an admitted malady requiring governmental action, on the legislature primarily rests the
responsibility. Nor should the cure prescribed by it, unless clearly repugnant to fundamental rights, be
ignored or disregarded." 15
But aside from the clear and imminent danger of the debasement of the electoral process, as conceded
by Senator Pelaez, the basic motivation, according to Senate Majority Floor Leader Senator Arturo
Tolentino, the sponsor of the Puyat-Tolentino amendment embodied in par. 1 of Sec. 8(a) of R.A. No.
6132, is to assure the candidates equal protection of the laws by according them equality of
chances. 16 The primary purpose of the prohibition then is also to avert the clear and present danger of
another substantive evil, the denial of the equal protection of the laws. The candidates must depend on
their individual merits and not on the support of political parties or organizations. Senator Tolentino and
Senator Salonga emphasized that under this provision, the poor candidate has an even chance as against
the rich candidate. We are not prepared to disagree with them, because such a conclusion, predicated as
it is on empirical logic, finds support in our recent political history and experience. Both Senators
stressed that the independent candidate who wins in the election against a candidate of the major
political parties, is a rare phenomenon in this country and the victory of an independent candidate
mainly rests on his ability to match the resources, financial and otherwise, of the political parties or
organizations supporting his opponent. This position is further strengthened by the principle that the
guarantee of social justice under Sec. V, Art. II of the Constitution, includes the guarantee of equal
opportunity, equality of political rights, and equality before the law enunciated by Mr. Justice Tuazon in
the case Guido vs. Rural Progress Administration. 17
While it may be true that a party's support of a candidate is not wrong per se it is equally true that
Congress in the exercise of its broad law-making authority can declare certain acts as mala prohibita
when justified by the exigencies of the times. One such act is the party or organization support
proscribed in Sec. 8(a),which ban is a valid limitation on the freedom of association as well as expression,
for the reasons aforestated.
Senator Tolentino emphasized that "equality of chances may be better attained by banning all
organization support." 18
The questioned par. 1 of Sec. 8 (a) likewise can easily pass the balancing-of-interest test. 19
In the apt words of the Solicitor General:
It is to be noted that right now the nation is on the threshold of rewriting its
Constitution in a hopeful endeavor to find a solution to the grave economic, social
and political problems besetting the country. Instead of directly proposing the
amendments Congress has chosen to call a Constitutional Convention which shall
have the task of fashioning a document that shall embody the aspirations and
ideals of the people. Because what is to be amended is the fundamental law of the
land, it is indispensable that the Constitutional Convention be composed of
 delegates truly representative of the people's will. Public welfare demands that Constitution and by laws of such civic, religious, or professional associations usually prohibit the
the delegates should speak for the entire nation, and their voices be not those of a association from engaging in partisan political activity or supporting any candidate for an elective office.
particular segment of the citizenry, or of a particular class or group of people, be Hence, they must likewise respect the ban.
they religious, political, civic or professional in character. Senator Pelaez, Chairman
of the Senate Committee on Codes and Constitutional Amendments, eloquently
The freedom of association also implies the liberty not to associate or join with others or join any existing
stated that "the function of a constitution is not to represent anyone in interest or
organization. A person may run independently on his own merits without need of catering to a political
set of interests, not to favor one group at the expense or disadvantage of the
party or any other association for support. And he, as much as the candidate whose candidacy does not
candidates but to encompass all the interests that exist within our society and
evoke sympathy from any political party or organized group, must be afforded equal chances. As
to blend them into one harmonious and balanced whole. For the constitutional
emphasized by Senators Tolentino and Salonga, this ban is to assure equal chances to a candidate with
system means, not the predominance of interests, but the harmonious balancing
talent and imbued with patriotism as well as nobility of purpose, so that the country can utilize their
thereof."
services if elected.

So that the purpose for calling the Constitutional Convention will not be deflated
Impressed as We are by the eloquent and masterly exposition of Senator Taada for the invalidation of
or frustrated, it is necessary that the delegatee thereto be independent, beholden
par. 1 of Sec. 8(a) of R.A. No. 6132, demonstrating once again his deep concern for the preservation of
to no one but to God, country and conscience.
our civil liberties enshrined in the Bill of Rights, We are not persuaded to entertain the belief that the
challenged ban transcends the limits of constitutional invasion of such cherished immunities.
xxx xxx xxx
WHEREFORE, the prayers in both petitions are hereby denied and R.A. No. 6132 including Secs. 2, 4, 5,
The evil therefore, which the law seeks to prevent lies in the election of delegates and 8(a), paragraph 1, thereof, cannot be declared unconstitutional. Without costs.
who, because they have been chosen with the aid and resources of organizations,
cannot be expected to be sufficiently representative of the people. Such delegates
Reyes, J.B.L., Dizon and Castro, JJ., concur.
could very well be the spokesmen of narrow political, religious or economic
interest and not of the great majority of the people. 20
Makalintal, J., concurs in the result.
We likewise concur with the Solicitor General that the equal protection of the laws is not unduly
subverted in par. I of Sec. 8(a); because it does not create any hostile discrimination against any party or
group nor does it confer undue favor or privilege on an individual as heretofore stated. The
discrimination applies to all organizations, whether political parties or social, civic, religious, or
professional associations. The ban is germane to the objectives of the law, which are to avert the
debasement of the electoral process, and to attain real equality of chances among individual candidates
and thereby make real the guarantee of equal protection of the laws.

The political parties and the other organized groups have built-in advantages because of their machinery
and other facilities, which, the individual candidate who is without any organization support, does not
have. The fact that the other civic of religious organizations cannot have a campaign machinery as
efficient as that of a political party, does not vary the situation; because it still has that much built-in
advantage as against the individual candidate without similar support. Moreover, these civic religious
and professional organization may band together to support common candidates, who advocates the
reforms that these organizations champion and believe are imperative. This is admitted by petitioner
Gonzales thru the letter of Senator Ganzon dated August 17, 1970 attached to his petition as Annex "D",
wherein the Senator stated that his own "Timawa" group had agreed with the Liberal Party in Iloilo to
support petitioner Gonzales and two others as their candidates for the convention, which organized
support is nullified by the questioned ban, Senator Ganzon stressed that "without the group moving and
working in joint collective effort" they cannot "exercise effective control and supervision over our
leaders the Women's League, the area commanders, etc."; but with their joining with the LP's they
"could have presented a solid front with very bright chances of capturing all seats."

The civic associations other than political parties cannot with reason insist that they should be exempted
from the ban; because then by such exemption they would be free to utilize the facilities of the
campaign machineries which they are denying to the political parties. Whenever all organization engages
in a political activity, as in this campaign for election of delegates to the Constitutional Convention, to
that extent it partakes of the nature of a political organization. This, despite the fact that the
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-34150 October 16, 1971
ARTURO M. TOLENTINO, petitioner,
vs.
COMMISSION ON ELECTIONS, and THE CHIEF ACCOUNTANT, THE AUDITOR, and THE DISBURSING
OFFICER OF THE 1971 CONSTITUTIONAL CONVENTION, respondents, RAUL S. MANGLAPUS, JESUS G.
BARRERA, PABLO S. TRILLANA III, VICTOR DE LA SERNA, MARCELO B. FERNAN, JOSE Y. FERIA,
LEONARDO SIGUION REYNA, VICTOR F. ORTEGA, and JUAN V. BORRA, Intervenors.
Arturo M. Tolentino in his own behalf.
Ramon A. Gonzales for respondents Chief Accountant and Auditor of the 1971 Constitutional Convention.
Emmanuel Pelaez, Jorge M. Juco and Tomas L. Echivarre for respondent Disbursing Officer of the 1971
Constitutional Convention.
Intervenors in their own behalf.
BARREDO, J.:
Petition for prohibition principally to restrain the respondent Commission on Elections "from
undertaking to hold a plebiscite on November 8, 1971," at which the proposed constitutional
amendment "reducing the voting age" in Section 1 of Article V of the Constitution of the Philippines to
eighteen years "shall be, submitted" for ratification by the people pursuant to Organic Resolution No. 1
of the Constitutional Convention of 1971, and the subsequent implementing resolutions, by declaring
said resolutions to be without the force and effect of law in so far as they direct the holding of such
plebiscite and by also declaring the acts of the respondent Commission (COMELEC) performed and to be
done by it in obedience to the aforesaid Convention resolutions to be null and void, for being violative of
the Constitution of the Philippines.
As a preliminary step, since the petition named as respondent only the COMELEC, the Count required
that copies thereof be served on the Solicitor General and the Constitutional Convention, through its
President, for such action as they may deem proper to take. In due time, respondent COMELEC filed its
answer joining issues with petitioner. To further put things in proper order, and considering that the
fiscal officers of the Convention are indispensable parties in a proceeding of this nature, since the acts
sought to be enjoined involve the expenditure of funds appropriated by law for the Convention, the
Court also ordered that the Disbursing Officer, Chief Accountant and Auditor of the Convention be made
respondents. After the petition was so amended, the first appeared thru Senator Emmanuel Pelaez and
the last two thru Delegate Ramon Gonzales. All said respondents, thru counsel, resist petitioner's action.
For reasons of orderliness and to avoid unnecessary duplication of arguments and even possible
confusion, and considering that with the principal parties being duly represented by able counsel, their
interests would be adequately protected already, the Court had to limit the number of intervenors from
the ranks of the delegates to the Convention who, more or less, have legal interest in the success of the
respondents, and so, only Delegates Raul S. Manglapus, Jesus G. Barrera, Pablo S. Trillana III, Victor de la
Serna, Marcelo B. Fernan, Jose Y. Feria, Leonardo Siguion Reyna, Victor Ortega and Juan B. Borra, all
distinguished lawyers in their own right, have been allowed to intervene jointly. The Court feels that with
such an array of brilliant and dedicated counsel, all interests involved should be duly and amply
represented and protected. At any rate, notwithstanding that their corresponding motions for leave to
intervene or to appear as amicus curiae 1 have been denied, the pleadings filed by the other delegates
and some private parties, the latter in representation of their minor children allegedly to be affected by
the result of this case with the records and the Court acknowledges that they have not been without
value as materials in the extensive study that has been undertaken in this case.
The background facts are beyond dispute. The Constitutional Convention of 1971 came into being by
virtue of two resolutions of the Congress of the Philippines approved in its capacity as a constituent
assembly convened for the purpose of calling a convention to propose amendments to the Constitution
namely, Resolutions 2 and 4 of the joint sessions of Congress held on March 16, 1967 and June 17, 1969
respectively. The delegates to the said Convention were all elected under and by virtue of said
resolutions and the implementing legislation thereof, Republic Act 6132. The pertinent portions of
Resolution No 2 read as follows:
SECTION 1. There is hereby called a convention to propose amendments to the
Constitution of the Philippines, to be composed of two elective Delegates from
each representative district who shall have the same qualifications as those
required of Members of the House of Representatives.
xxx xxx xxx
SECTION 7. The amendments proposed by the Convention shall be valid and
considered part of the Constitution when approved by a majority of the votes cast
in an election at which they are submitted to the people for their ratification
pursuant to Article XV of the Constitution.
Resolution No. 4 merely modified the number of delegates to represent the different cities and
provinces fixed originally in Resolution No 2.
After the election of the delegates held on November 10, 1970, the Convention held its inaugural session
on June 1, 1971. Its preliminary labors of election of officers, organization of committees and other
preparatory works over, as its first formal proposal to amend the Constitution, its session which began
on September 27, 1971, or more accurately, at about 3:30 in the morning of September 28, 1971, the
Convention approved Organic Resolution No. 1 reading thus: .
CC ORGANIC RESOLUTION NO. 1
A RESOLUTION AMENDING SECTION ONE OF ARTICLE V OF THE CONSTITUTION OF
THE PHILIPPINES SO AS TO LOWER THE VOTING AGE TO 18
BE IT RESOLVED as it is hereby resolved by the 1971 Constitutional Convention:
Section 1. Section One of Article V of the Constitution of the Philippines is
amended to as follows:
 Section 1. Suffrage may be exercised by (male) citizens of On September 30, 1971, COMELEC "RESOLVED to inform the Constitutional Convention that it will hold
the Philippines not otherwise disqualified by law, who are the plebiscite on condition that:
(twenty-one) EIGHTEEN years or over and are able to read
and write, and who shall have resided in the Philippines for
(a) The Constitutional Convention will undertake the printing of separate official
one year and in the municipality wherein they propose to
ballots, election returns and tally sheets for the use of said plebiscite at its
vote for at least six months preceding the election.
expense;

Section 2. This amendment shall be valid as part of the Constitution of the

(b) The Constitutional Convention will adopt its own security measures for the
Philippines when approved by a majority of the votes cast in a plebiscite to
printing and shipment of said ballots and election forms; and
coincide with the local elections in November 1971.

(c) Said official ballots and election forms will be delivered to the Commission in
Section 3. This partial amendment, which refers only to the age qualification for
time so that they could be distributed at the same time that the Commission will
the exercise of suffrage shall be without prejudice to other amendments that will
distribute its official and sample ballots to be used in the elections on November 8,
be proposed in the future by the 1971 Constitutional Convention on other portions
1971.
of the amended Section or on other portions of the entire Constitution.

What happened afterwards may best be stated by quoting from intervenors' Governors' statement of
Section 4. The Convention hereby authorizes the use of the sum of P75,000.00
the genesis of the above proposal:
from its savings or from its unexpended funds for the expense of the advanced
plebiscite; provided, however that should there be no savings or unexpended
sums, the Delegates waive P250.00 each or the equivalent of 2-1/2 days per diem. The President of the Convention also issued an order forming an Ad Hoc
Committee to implement the Resolution.
By a letter dated September 28, 1971, President Diosdado Macapagal, called upon respondent Comelec
"to help the Convention implement (the above) resolution." The said letter reads: This Committee issued implementing guidelines which were approved by the
President who then transmitted them to the Commission on Elections.
September 28, 1971
The Committee on Plebiscite and Ratification filed a report on the progress of the
implementation of the plebiscite in the afternoon of October 7,1971, enclosing
The Commission on Elections Manila
copies of the order, resolution and letters of transmittal above referred to (Copy of
the report is hereto attached as Annex 8-Memorandum).
Thru the Chairman
RECESS RESOLUTION
Gentlemen:
In its plenary session in the evening of October 7, 1971, the Convention approved
Last night the Constitutional Convention passed Resolution No. 1 quoted as a resolution authored by Delegate Antonio Olmedo of Davao Oriental, calling for a
follows: recess of the Convention from November 1, 1971 to November 9, 1971 to permit
the delegates to campaign for the ratification of Organic Resolution No. 1. (Copies
of the resolution and the transcript of debate thereon are hereto attached as
xxx xxx xxx
Annexes 9 and 9-A Memorandum, respectively).

(see above)
RESOLUTION CONFIRMING IMPLEMENTATION

Pursuant to the provision of Section 14, Republic Act No. 6132 otherwise known as
On October 12, 1971, the Convention passed Resolution No. 24 submitted by
the Constitutional Convention Act of 1971, may we call upon you to help the
Delegate Jose Ozamiz confirming the authority of the President of the Convention
Convention implement this resolution:
to implement Organic Resolution No. 1, including the creation of the Ad Hoc
Committee ratifying all acts performed in connection with said implementation.
Sincerely,
Upon these facts, the main thrust of the petition is that Organic Resolution No. 1 and the other
. implementing resolutions thereof subsequently approved by the Convention have no force and effect as
laws in so far as they provide for the holding of a plebiscite co-incident with the elections of eight
senators and all city, provincial and municipal officials to be held on November 8, 1971, hence all of
Comelec's acts in obedience thereof and tending to carry out the holding of the plebiscite directed by
said resolutions are null and void, on the ground that the calling and holding of such a plebiscite is, by largest number of votes in said chamber, purporting to act, on behalf of the party
the Constitution, a power lodged exclusively in Congress, as a legislative body, and may not be exercised having the second largest number of votes therein of two (2) Senators belonging
by the Convention, and that, under Section 1, Article XV of the Constitution, the proposed amendment in to the first party, as members, for the second party, of the Senate Electoral
question cannot be presented to the people for ratification separately from each and all of the other Tribunal; and in the fourth, we declared unconstitutional an act of Congress
amendments to be drafted and proposed by the Convention. On the other hand, respondents and purporting to apportion the representatives districts for the House of
intervenors posit that the power to provide for, fix the date and lay down the details of the plebiscite for Representatives, upon the ground that the apportionment had not been made as
the ratification of any amendment the Convention may deem proper to propose is within the authority may be possible according to the number of inhabitants of each province. Thus we
of the Convention as a necessary consequence and part of its power to propose amendments and that rejected the theory, advanced in these four (4) cases that the issues therein raised
this power includes that of submitting such amendments either individually or jointly at such time and were political questions the determination of which is beyond judicial review.
manner as the Convention may direct in discretion. The Court's delicate task now is to decide which of
these two poses is really in accord with the letter and spirit of the Constitution.
Indeed, the power to amend the Constitution or to propose amendments thereto
is not included in the general grant of legislative powers to Congress (Section 1,
As a preliminary and prejudicial matter, the intervenors raise the question of jurisdiction. They contend Art. VI, Constitution of the Philippines). It is part of the inherent powers of the
that the issue before Us is a political question and that the Convention being legislative body of the people as the repository sovereignty in a republican state, such as ours (Section
highest order is sovereign, and as such, its acts impugned by petitioner are beyond the control of the 1, Art. 11, Constitution of the Philippines) to make, and, hence, to amend their
Congress and the courts. In this connection, it is to be noted that none of the respondent has joined own Fundamental Law. Congress may propose amendments to the Constitution
intervenors in this posture. In fact, respondents Chief Accountant and Auditor of the convention merely because the same explicitly grants such power. (Section 1, Art. XV,
expressly concede the jurisdiction of this Court in their answer acknowledging that the issue herein is a Constitution of the Philippines) Hence, when exercising the same, it is said that
justifiable one. Senators and members of the House of Representatives act, not as members of
Congress, but as component elements of a constituent assembly. When acting as
such, the members of Congress derive their authority from the Constitution, unlike
Strangely, intervenors cite in support of this contention portions of the decision of this Court in the case
the people, when performing the same function, (Of amending the Constitution)
of Gonzales v. Comelec, 21 SCRA 774, wherein the members of the Court, despite their being divided in
for their authority does not emanate from the Constitution they are the very
their opinions as to the other matters therein involved, were precisely unanimous in upholding its
source of all powers of government including the Constitution itself.
jurisdiction. Obviously, distinguished counsel have either failed to grasp the full impact of the portions of
Our decision they have quoted or would misapply them by taking them out of context.
Since, when proposing, as a constituent assembly, amendments to the
Constitution, the members of Congress derive their authority from the
There should be no more doubt as to the position of this Court regarding its jurisdiction vis-a-vis the
Fundamental Law, it follows, necessarily, that they do not have the final say on
constitutionality of the acts of the Congress, acting as a constituent assembly, and, for that matter, those
whether or not their acts are within or beyond constitutional limits. Otherwise,
of a constitutional convention called for the purpose of proposing amendments to the Constitution,
they could brush aside and set the same at naught, contrary to the basic tenet that
which concededly is at par with the former. A simple reading of Our ruling in that very case
ours is a government of laws, not of men, and to the rigid nature of our
of Gonzales relied upon by intervenors should dispel any lingering misgivings as regards that point.
Constitution. Such rigidity is stressed by the fact that the Constitution expressly
Succinctly but comprehensively, Chief Justice Concepcion held for the Court thus: .
confers upon the Supreme Court, (And, inferentially, to lower courts.) the power
to declare a treaty unconstitutional. (Sec. 2(1), Art. VIII of the Constitution),
As early as Angara vs. Electoral Commission (63 Phil. 139, 157), this Court despite the eminently political character of treaty-making power.
speaking through one of the leading members of the Constitutional Convention
and a respected professor of Constitutional Law, Dr. Jose P. Laurel declared that
In short, the issue whether or not a Resolution of Congress acting as a
"the judicial department is the only constitutional organ which can be called upon
constituent assembly violates the Constitution is essentially justiciable not
to determine the proper allocation of powers between the several departments
political, and, hence, subject to judicial review, and, to the extent that this view
and among the integral or constituent units thereof."
may be inconsistent with the stand taken in Mabanag v. Lopez Vito, (supra) the
latter should be deemed modified accordingly. The Members of the Court are
It is true that in Mabanag v. Lopez Vito (supra), this Court characterizing the issue unanimous on this point.
submitted thereto as a political one declined to pass upon the question whether or
not a given number of votes cast in Congress in favor of a proposed amendment to
No one can rightly claim that within the domain of its legitimate authority, the Convention is not
the Constitution which was being submitted to the people for ratification
supreme. Nowhere in his petition and in his oral argument and memoranda does petitioner point
satisfied the three-fourths vote requirement of the fundamental law. The force of
otherwise. Actually, what respondents and intervenors are seemingly reluctant to admit is that the
this precedent has been weakened, however, by Suanes v. Chief Accountant of the
Constitutional Convention of 1971, as any other convention of the same nature, owes its existence and
Senate (81 Phil. 818), Avelino v. Cuenco, (L-2851, March 4 & 14, 1949), Taada v.
derives all its authority and power from the existing Constitution of the Philippines. This Convention has
Cuenco, (L-10520, Feb. 28, 1957) and Macias v. Commission on Elections, (L-18684,
not been called by the people directly as in the case of a revolutionary convention which drafts the first
Sept. 14, 1961). In the first we held that the officers and employees of the Senate
Constitution of an entirely new government born of either a war of liberation from a mother country or
Electoral Tribunal are under its supervision and control, not of that of the Senate
of a revolution against an existing government or of a bloodless seizure of power a la coup d'etat. As to
President, as claimed by the latter; in the second, this Court proceeded to
such kind of conventions, it is absolutely true that the convention is completely without restrain and
determine the number of Senators necessary for quorum in the Senate; in the
omnipotent all wise, and it is as to such conventions that the remarks of Delegate Manuel Roxas of the
third, we nullified the election, by Senators belonging to the party having the
Constitutional Convention of 1934 quoted by Senator Pelaez refer. No amount of rationalization can
belie the fact that the current convention came into being only because it was called by a resolution of a
joint session of Congress acting as a constituent assembly by authority of Section 1, Article XV of the
present Constitution which provides:
ARTICLE XV AMENDMENTS
SECTION 1. The Congress in joint session assembled, by a vote of three-fourths of
all the Members of the Senate and of the House of Representatives voting
separately, may propose amendments to this Constitution or call a convention for
the purpose. Such amendments shall be valid as part of this Constitution when
approved by a majority of the votes cast at an election at which the amendments
are submitted to the people for their ratification.
True it is that once convened, this Convention became endowed with extra ordinary powers generally
beyond the control of any department of the existing government, but the compass of such powers can
be co-extensive only with the purpose for which the convention was called and as it may propose cannot
have any effect as part of the Constitution until the same are duly ratified by the people, it necessarily
follows that the acts of convention, its officers and members are not immune from attack on
constitutional grounds. The present Constitution is in full force and effect in its entirety and in everyone
of its parts the existence of the Convention notwithstanding, and operates even within the walls of that
assembly. While it is indubitable that in its internal operation and the performance of its task to propose
amendments to the Constitution it is not subject to any degree of restraint or control by any other
authority than itself, it is equally beyond cavil that neither the Convention nor any of its officers or
members can rightfully deprive any person of life, liberty or property without due process of law, deny to
anyone in this country the equal protection of the laws or the freedom of speech and of the press in
disregard of the Bill of Rights of the existing Constitution. Nor, for that matter, can such Convention
validly pass any resolution providing for the taking of private property without just compensation or for
the imposition or exacting of any tax, impost or assessment, or declare war or call the Congress to a
special session, suspend the privilege of the writ of habeas corpus, pardon a convict or render judgment
in a controversy between private individuals or between such individuals and the state, in violation of
the distribution of powers in the Constitution.
It being manifest that there are powers which the Convention may not and cannot validly assert, much
less exercise, in the light of the existing Constitution, the simple question arises, should an act of the
Convention be assailed by a citizen as being among those not granted to or inherent in it, according to
the existing Constitution, who can decide whether such a contention is correct or not? It is of the very
essence of the rule of law that somehow somewhere the Power and duty to resolve such a grave
constitutional question must be lodged on some authority, or we would have to confess that the
integrated system of government established by our founding fathers contains a wide vacuum no
intelligent man could ignore, which is naturally unworthy of their learning, experience and craftsmanship
in constitution-making.
We need not go far in search for the answer to the query We have posed. The very decision of Chief
Justice Concepcion in Gonzales, so much invoked by intervenors, reiterates and reinforces the irrefutable
logic and wealth of principle in the opinion written for a unanimous Court by Justice Laurel in Angara vs.
Electoral Commission, 63 Phil., 134, reading:
... (I)n the main, the Constitution has blocked out with deft strokes and in bold
lines, allotment of power to the executive, the legislative and the judicial
departments of the government. The overlapping and interlacing of functions and
duties between the several departments, however, sometimes makes it hard to
say where the one leaves off and the other begins. In times of social disquietude or
political excitement, the great landmark of the Constitution are apt to be forgotten
or marred, if not entirely obliterated. In cases of conflict, the judicial department is
the only constitutional organ which can be called upon to determine the proper
allocation of powers between the several departments and among the integral or
constituent units thereof.
As any human production our Constitution is of course lacking perfection and
perfectibility, but as much as it was within the power of our people, acting through
their delegates to so provide, that instrument which is the expression of their
sovereignty however limited, has established a republican government intended to
operate and function as a harmonious whole, under a system of check and
balances and subject to specific limitations and restrictions provided in the said
instrument. The Constitution sets forth in no uncertain language the restrictions
and limitations upon governmental powers and agencies. If these restrictions and
limitations are transcended it would be inconceivable if the Constitution had not
provided for a mechanism by which to direct the course of government along
constitutional channels, for then the distribution of powers would be mere
verbiage, the bill of rights mere expressions of sentiment and the principles of
good government mere political apothegms. Certainly the limitations and
restrictions embodied in our Constitution are real as they should be in any living
Constitution. In the United States where no express constitutional grant is found in
their constitution, the possession of this moderating power of the courts, not to
speak of its historical origin and development there, has been set at rest by
popular acquiescence for a period of more than one and half centuries. In our
case, this moderating power is granted, if not expressly, by clear implication from
section 2 of Article VIII of our Constitution.
The Constitution is a definition of the powers or government. Who is to determine
the nature, scope and extent of such powers? The Constitution itself has provided
for the instrumentality of the judiciary as the rational way. And when the judiciary
mediates to allocate constitutional boundaries, it does not assert any superiority
over the other departments; it does not in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred obligation assigned to it by the
Constitution to determine conflicting claims of authority under the Constitution
and to establish for the parties in an actual controversy the rights which that
instrument secures and guarantees to them. This is in truth all that is involved in
what is termed "judicial supremacy" which properly is the power of judicial review
under the Constitution. Even then, this power of judicial review is limited to actual
cases and controversies to be exercised after full opportunity of argument by the
parties, and limited further to the constitutional question raised or the very lis
mota presented. Any attempt at abstraction could only lead to dialectics and
barren legal questions and to strike conclusions unrelated to actualities. Narrowed
as its functions is in this manner the judiciary does not pass upon questions of
wisdom, justice or expediency of legislation. More than that, courts accord the
presumption of constitutionality to legislative enactments, not only because the
legislature is presumed to abide by the Constitution but also because the judiciary
in the determination of actual cases and controversies must reflect the wisdom
and justice of the people as expressed through their representatives in the
executive and legislative departments of the government.
But much as we might postulate on the internal checks of power provided in our
Constitution, it ought not the less to be remembered that, in the language of
James Madison, the system itself is not "the chief palladium of constitutional
liberty ... the people who are authors of this blessing must also be its guardians ...
their eyes must be ever ready to mark, their voices to pronounce ... aggression on
the authority of their Constitution." In the last and ultimate analysis then, must the
success of our government in the unfolding years to come be tested in the crucible
of Filipino minds and hearts than in consultation rooms and court chambers.
In the case at bar, the National Assembly has by resolution (No. 8) of December 3,
1935, confirmed the election of the herein petitioner to the said body. On the
other hand, the Electoral Commission has by resolution adopted on December 9,
1935, fixed said date as the last day for the filing of protests against the election,
returns and qualifications of members of the National Assembly; notwithstanding
the previous confirmations made by the National Assembly as aforesaid. If, as
contended by the petitioner, the resolution of the National Assembly has the
effect of cutting off the power of the Electoral Commission to entertain protests
against the election, returns and qualifications of members of the National
Assembly, submitted after December 3, 1935 then the resolution of the Electoral
Commission of December 9, 1935, is mere surplusage and had no effect. But, if, as
contended by the respondents, the Electoral Commission has the sole power of
regulating its proceedings to the exclusion of the National Assembly, then the
resolution of December 9, 1935, by which the Electoral Commission fixed said date
as the last day for filing protests against the election, returns and qualifications of
members of the National Assembly, should be upheld.
Here is then presented an actual controversy involving as it does a conflict of a
grave constitutional nature between the National Assembly on the one hand and
the Electoral Commission on the other. From the very nature of the republican
government established in our country in the light of American experience and of
our own, upon the judicial department is thrown the solemn and inescapable
obligation of interpreting the Constitution and defining constitutional boundaries.
The Electoral Commission as we shall have occasion to refer hereafter, is a
constitutional organ, created for a specific purpose, namely, to determine all
contests relating to the election, returns and qualifications of the members of the
National Assembly. Although the Electoral Commission may not be interfered with,
when and while acting within the limits of its authority, it does not follow that it is
beyond the reach of the constitutional mechanism adopted by the people and that
it is not subject to constitutional restriction. The Electoral Commission is not a
separate department of the government, and even if it were, conflicting claims of
authority under the fundamental law between departmental powers and agencies
of the government are necessarily determined by the judiciary in justiciable and
appropriate cases. Discarding the English type and other European types of
constitutional government, the framers of our Constitution adopted the American
type where the written constitution is interpreted and given effect by the judicial
department. In some countries which have declined to follow the American
example, provisions have been inserted in their constitutions prohibiting the
courts from exercising the power to interpret the fundamental law. This is taken as
a recognition of what otherwise would be the rule that in the absence of direct
prohibition, courts are bound to assume what is logically their function. For
instance, the Constitution of Poland of 1921 expressly provides that courts shall
have no power to examine the validity of statutes (art. 81, Chap. IV). The former
Austrian Constitution contained a similar declaration. In countries whose
constitution are silent in this respect, courts have assumed this power. This is true
in Norway, Greece, Australia and South Africa. Whereas, in Czechoslovakia (arts. 2
and 3, Preliminary Law to Constitutional Charter of the Czechoslavak, Republic,
February 29, 1920) and Spain (arts. 121-123, Title IX, Constitution of the Republic
of 1931) especial constitutional courts are established to pass upon the validity of
ordinary laws. In our case, the nature of the present controversy shows the
necessity of a final constitutional arbiter to determine the conflict of authority
between two agencies created by the Constitution. Were we to decline to take
cognizance of the controversy, who will determine the conflict? And if the conflict
were left undecided and undetermined, would not a void be thus created in our
constitutional system which may in the long run prove destructive of the entire
framework? To ask these questions is to answer them. Natura vacuum abhorret,
so must we avoid exhaustion in our constitutional system. Upon principle, reason,
and authority, we are clearly of the opinion that upon the admitted facts of the
present case, this court has jurisdiction over the Electoral Commission and the
subject matter of the present controversy for the purpose of determining the
character, scope and extent of the constitutional grant to the Electoral
Commission as "the sole judge of all contests relating to the election, returns and
qualifications of the members of the National Assembly." .
As the Chief Justice has made it clear in Gonzales, like Justice Laurel did in Angara, these postulates just
quoted do not apply only to conflicts of authority between the three existing regular departments of the
government but to all such conflicts between and among these departments, or, between any of them,
on the one hand, and any other constitutionally created independent body, like the electoral tribunals in
Congress, the Comelec and the Constituent assemblies constituted by the House of Congress, on the
other. We see no reason of logic or principle whatsoever, and none has been convincingly shown to Us
by any of the respondents and intervenors, why the same ruling should not apply to the present
Convention, even if it is an assembly of delegate elected directly by the people, since at best, as already
demonstrated, it has been convened by authority of and under the terms of the present Constitution..
Accordingly, We are left with no alternative but to uphold the jurisdiction of the Court over the present
case. It goes without saying that We do this not because the Court is superior to the Convention or that
the Convention is subject to the control of the Court, but simply because both the Convention and the
Court are subject to the Constitution and the rule of law, and "upon principle, reason and authority," per
Justice Laurel, supra, it is within the power as it is the solemn duty of the Court, under the existing
Constitution to resolve the issues in which petitioner, respondents and intervenors have joined in this
case.
II
The issue of jurisdiction thus resolved, We come to the crux of the petition. Is it within the powers of the
Constitutional Convention of 1971 to order, on its own fiat, the holding of a plebiscite for the ratification
of the proposed amendment reducing to eighteen years the age for the exercise of suffrage under
Section 1 of Article V of the Constitution proposed in the Convention's Organic Resolution No. 1 in the
manner and form provided for in said resolution and the subsequent implementing acts and resolution
of the Convention?
At the threshold, the environmental circumstances of this case demand the most accurate and
unequivocal statement of the real issue which the Court is called upon to resolve. Petitioner has very
clearly stated that he is not against the constitutional extension of the right of suffrage to the eighteen-
year-olds, as a matter of fact, he has advocated or sponsored in Congress such a proposal, and that, in
truth, the herein petition is not intended by him to prevent that the proposed amendment here involved
be submitted to the people for ratification, his only purpose in filing the petition being to comply with his
sworn duty to prevent, Whenever he can, any violation of the Constitution of the Philippines even if it is
committed in the course of or in connection with the most laudable undertaking. Indeed, as the Court
sees it, the specific question raised in this case is limited solely and only to the point of whether or not it
is within the power of the Convention to call for a plebiscite for the ratification by the people of the
constitutional amendment proposed in the abovequoted Organic Resolution No. 1, in the manner and
form provided in said resolution as well as in the subject question implementing actions and resolution
of the Convention and its officers, at this juncture of its proceedings, when as it is a matter of common
knowledge and judicial notice, it is not set to adjourn sine die, and is, in fact, still in the preliminary
stages of considering other reforms or amendments affecting other parts of the existing Constitution;
and, indeed, Organic Resolution No. 1 itself expressly provides, that the amendment therein proposed
"shall be without prejudice to other amendments that will be proposed in the future by the 1971
Constitutional Convention on other portions of the amended section or on other portions of the entire
Constitution." In other words, nothing that the Court may say or do, in this case should be understood as
reflecting, in any degree or means the individual or collective stand of the members of the Court on the
fundamental issue of whether or not the eighteen-year-olds should be allowed to vote, simply because
that issue is not before Us now. There should be no doubt in the mind of anyone that, once the Court
finds it constitutionally permissible, it will not hesitate to do its part so that the said proposed
amendment may be presented to the people for their approval or rejection.
Withal, the Court rests securely in the conviction that the fire and enthusiasm of the youth have not
blinded them to the absolute necessity, under the fundamental principles of democracy to which the
Filipino people is committed, of adhering always to the rule of law. Surely, their idealism, sincerity and
purity of purpose cannot permit any other line of conduct or approach in respect of the problem before
Us. The Constitutional Convention of 1971 itself was born, in a great measure, because of the pressure
brought to bear upon the Congress of the Philippines by various elements of the people, the youth in
particular, in their incessant search for a peaceful and orderly means of bringing about meaningful
changes in the structure and bases of the existing social and governmental institutions, including the
provisions of the fundamental law related to the well-being and economic security of the
underprivileged classes of our people as well as those concerning the preservation and protection of our
natural resources and the national patrimony, as an alternative to violent and chaotic ways of achieving
such lofty ideals. In brief, leaving aside the excesses of enthusiasm which at times have justifiably or
unjustifiably marred the demonstrations in the streets, plazas and campuses, the youth of the
Philippines, in general, like the rest of the people, do not want confusion and disorder, anarchy and
violence; what they really want are law and order, peace and orderliness, even in the pursuit of what
they strongly and urgently feel must be done to change the present order of things in this Republic of
ours. It would be tragic and contrary to the plain compulsion of these perspectives, if the Court were to
allow itself in deciding this case to be carried astray by considerations other than the imperatives of the
rule of law and of the applicable provisions of the Constitution. Needless to say, in a larger measure than
when it binds other departments of the government or any other official or entity, the Constitution
imposes upon the Court the sacred duty to give meaning and vigor to the Constitution, by interpreting
and construing its provisions in appropriate cases with the proper parties, and by striking down any act
violative thereof. Here, as in all other cases, We are resolved to discharge that duty.
During these twice when most anyone feels very strongly the urgent need for constitutional reforms, to
the point of being convinced that meaningful change is the only alternative to a violent revolution, this
Court would be the last to put any obstruction or impediment to the work of the Constitutional
Convention. If there are respectable sectors opining that it has not been called to supplant the existing
Constitution in its entirety, since its enabling provision, Article XV, from which the Convention itself
draws life expressly speaks only of amendments which shall form part of it, which opinion is not without
persuasive force both in principle and in logic, the seemingly prevailing view is that only the collective
judgment of its members as to what is warranted by the present condition of things, as they see it, can
limit the extent of the constitutional innovations the Convention may propose, hence the complete
substitution of the existing constitution is not beyond the ambit of the Convention's authority. Desirable
as it may be to resolve, this grave divergence of views, the Court does not consider this case to be
properly the one in which it should discharge its constitutional duty in such premises. The issues raised
by petitioner, even those among them in which respondents and intervenors have joined in an apparent
wish to have them squarely passed upon by the Court do not necessarily impose upon Us the imperative
obligation to express Our views thereon. The Court considers it to be of the utmost importance that the
Convention should be untrammelled and unrestrained in the performance of its constitutionally as
signed mission in the manner and form it may conceive best, and so the Court may step in to clear up
doubts as to the boundaries set down by the Constitution only when and to the specific extent only that
it would be necessary to do so to avoid a constitutional crisis or a clearly demonstrable violation of the
existing Charter. Withal, it is a very familiar principle of constitutional law that constitutional questions
are to be resolved by the Supreme Court only when there is no alternative but to do it, and this rule is
founded precisely on the principle of respect that the Court must accord to the acts of the other
coordinate departments of the government, and certainly, the Constitutional Convention stands almost
in a unique footing in that regard.
In our discussion of the issue of jurisdiction, We have already made it clear that the Convention came
into being by a call of a joint session of Congress pursuant to Section I of Article XV of the Constitution,
already quoted earlier in this opinion. We reiterate also that as to matters not related to its internal
operation and the performance of its assigned mission to propose amendments to the Constitution, the
Convention and its officers and members are all subject to all the provisions of the existing Constitution.
Now We hold that even as to its latter task of proposing amendments to the Constitution, it is subject to
the provisions of Section I of Article XV. This must be so, because it is plain to Us that the framers of the
Constitution took care that the process of amending the same should not be undertaken with the same
ease and facility in changing an ordinary legislation. Constitution making is the most valued power,
second to none, of the people in a constitutional democracy such as the one our founding fathers have
chosen for this nation, and which we of the succeeding generations generally cherish. And because the
Constitution affects the lives, fortunes, future and every other conceivable aspect of the lives of all the
people within the country and those subject to its sovereignty, every degree of care is taken in preparing
and drafting it. A constitution worthy of the people for which it is intended must not be prepared in
haste without adequate deliberation and study. It is obvious that correspondingly, any amendment of
the Constitution is of no less importance than the whole Constitution itself, and perforce must be
conceived and prepared with as much care and deliberation. From the very nature of things, the drafters
of an original constitution, as already observed earlier, operate without any limitations, restraints or
inhibitions save those that they may impose upon themselves. This is not necessarily true of subsequent
conventions called to amend the original constitution. Generally, the framers of the latter see to it that
their handiwork is not lightly treated and as easily mutilated or changed, not only for reasons purely
personal but more importantly, because written constitutions are supposed to be designed so as to last
for some time, if not for ages, or for, at least, as long as they can be adopted to the needs and exigencies
of the people, hence, they must be insulated against precipitate and hasty actions motivated by more or
less passing political moods or fancies. Thus, as a rule, the original constitutions carry with them
limitations and conditions, more or less stringent, made so by the people themselves, in regard to the
process of their amendment. And when such limitations or conditions are so incorporated in the original
constitution, it does not lie in the delegates of any subsequent convention to claim that they may ignore
and disregard such conditions because they are as powerful and omnipotent as their original
counterparts.
Nothing of what is here said is to be understood as curtailing in any degree the number and nature and
the scope and extent of the amendments the Convention may deem proper to propose. Nor does the
Court propose to pass on the issue extensively and brilliantly discussed by the parties as to whether or
not the power or duty to call a plebiscite for the ratification of the amendments to be proposed by the
Convention is exclusively legislative and as such may be exercised only by the Congress or whether the
said power can be exercised concurrently by the Convention with the Congress. In the view the Court
takes of present case, it does not perceive absolute necessity to resolve that question, grave and
important as it may be. Truth to tell, the lack of unanimity or even of a consensus among the members
of the Court in respect to this issue creates the need for more study and deliberation, and as time is of
the essence in this case, for obvious reasons, November 8, 1971, the date set by the Convention for the
plebiscite it is calling, being nigh, We will refrain from making any pronouncement or expressing Our
views on this question until a more appropriate case comes to Us. After all, the basis of this decision is as
important and decisive as any can be.
The ultimate question, therefore boils down to this: Is there any limitation or condition in Section 1 of
Article XV of the Constitution which is violated by the act of the Convention of calling for a plebiscite on
the sole amendment contained in Organic Resolution No. 1? The Court holds that there is, and it is the
condition and limitation that all the amendments to be proposed by the same Convention must be
submitted to the people in a single "election" or plebiscite. It being indisputable that the amendment
now proposed to be submitted to a plebiscite is only the first amendment the Convention propose We
hold that the plebiscite being called for the purpose of submitting the same for ratification of the people
on November 8, 1971 is not authorized by Section 1 of Article XV of the Constitution, hence all acts of
the Convention and the respondent Comelec in that direction are null and void.
We have arrived at this conclusion for the following reasons:
1. The language of the constitutional provision aforequoted is sufficiently clear. lt says distinctly that
either Congress sitting as a constituent assembly or a convention called for the purpose "may propose
amendments to this Constitution," thus placing no limit as to the number of amendments that Congress
or the Convention may propose. The same provision also as definitely provides that
"such amendments shall be valid as part of this Constitution when approved by a majority of the votes
cast at an election at which the amendments are submitted to the people for their ratification," thus
leaving no room for doubt as to how many "elections" or plebiscites may be held to ratify any
amendment or amendments proposed by the same constituent assembly of Congress or convention, and
the provision unequivocably says "an election" which means only one.
(2) Very little reflection is needed for anyone to realize the wisdom and appropriateness of this
provision. As already stated, amending the Constitution is as serious and important an undertaking as
constitution making itself. Indeed, any amendment of the Constitution is as important as the whole of it
if only because the Constitution has to be an integrated and harmonious instrument, if it is to be viable
as the framework of the government it establishes, on the one hand, and adequately formidable and
reliable as the succinct but comprehensive articulation of the rights, liberties, ideology, social ideals, and
national and nationalistic policies and aspirations of the people, on the other. lt is inconceivable how a
constitution worthy of any country or people can have any part which is out of tune with its other parts..
A constitution is the work of the people thru its drafters assembled by them for the purpose. Once the
original constitution is approved, the part that the people play in its amendment becomes harder, for
when a whole constitution is submitted to them, more or less they can assumed its harmony as an
integrated whole, and they can either accept or reject it in its entirety. At the very least, they can
examine it before casting their vote and determine for themselves from a study of the whole document
the merits and demerits of all or any of its parts and of the document as a whole. And so also, when an
amendment is submitted to them that is to form part of the existing constitution, in like fashion they can
study with deliberation the proposed amendment in relation to the whole existing constitution and or
any of its parts and thereby arrive at an intelligent judgment as to its acceptability.
This cannot happen in the case of the amendment in question. Prescinding already from the fact that
under Section 3 of the questioned resolution, it is evident that no fixed frame of reference is provided
the voter, as to what finally will be concomitant qualifications that will be required by the final draft of
the constitution to be formulated by the Convention of a voter to be able to enjoy the right of suffrage,
there are other considerations which make it impossible to vote intelligently on the proposed
amendment, although it may already be observed that under Section 3, if a voter would favor the
reduction of the voting age to eighteen under conditions he feels are needed under the circumstances,
and he does not see those conditions in the ballot nor is there any possible indication whether they will
ever be or not, because Congress has reserved those for future action, what kind of judgment can he
render on the proposal?
But the situation actually before Us is even worse. No one knows what changes in the fundamental
principles of the constitution the Convention will be minded to approve. To be more specific, we do not
have any means of foreseeing whether the right to vote would be of any significant value at all. Who can
say whether or not later on the Convention may decide to provide for varying types of voters for each
level of the political units it may divide the country into. The root of the difficulty in other words, lies in
that the Convention is precisely on the verge of introducing substantial changes, if not radical ones, in
almost every part and aspect of the existing social and political order enshrined in the present
Constitution. How can a voter in the proposed plebiscite intelligently determine the effect of the
reduction of the voting age upon the different institutions which the Convention may establish and of
which presently he is not given any idea?
We are certain no one can deny that in order that a plebiscite for the ratification of an amendment to
the Constitution may be validly held, it must provide the voter not only sufficient time but ample basis
for an intelligent appraisal of the nature of the amendment per se as well as its relation to the other
parts of the Constitution with which it has to form a harmonious whole. In the context of the present
state of things, where the Convention has hardly started considering the merits of hundreds, if not
thousands, of proposals to amend the existing Constitution, to present to the people any single proposal
or a few of them cannot comply with this requirement. We are of the opinion that the present
Constitution does not contemplate in Section 1 of Article XV a plebiscite or "election" wherein the
people are in the dark as to frame of reference they can base their judgment on. We reject the
rationalization that the present Constitution is a possible frame of reference, for the simple reason that
intervenors themselves are stating that the sole purpose of the proposed amendment is to enable the
eighteen year olds to take part in the election for the ratification of the Constitution to be drafted by the
Convention. In brief, under the proposed plebiscite, there can be, in the language of Justice Sanchez,
speaking for the six members of the Court in Gonzales, supra, "no proper submission".
III
The Court has no desire at all to hamper and hamstring the noble work of the Constitutional Convention.
Much less does the Court want to pass judgment on the merits of the proposal to allow these eighteen
years old to vote. But like the Convention, the Court has its own duties to the people under the
Constitution which is to decide in appropriate cases with appropriate parties Whether or not the
mandates of the fundamental law are being complied with. In the best light God has given Us, we are of
the conviction that in providing for the questioned plebiscite before it has finished, and separately from,
the whole draft of the constitution it has been called to formulate, the Convention's Organic Resolution
No. 1 and all subsequent acts of the Convention implementing the same violate the condition in Section
1, Article XV that there should only be one "election" or plebiscite for the ratification of all the
amendments the Convention may propose. We are not denying any right of the people to vote on the
proposed amendment; We are only holding that under Section 1, Article XV of the Constitution, the
same should be submitted to them not separately from but together with all the other amendments to
be proposed by this present Convention.
IN VIEW OF ALL THE FOREGOING, the petition herein is granted. Organic Resolution No. 1 of the
Constitutional Convention of 1971 and the implementing acts and resolutions of the Convention, insofar
as they provide for the holding of a plebiscite on November 8, 1971, as well as the resolution of the
respondent Comelec complying therewith (RR Resolution No. 695) are hereby declared null and void.
The respondents Comelec, Disbursing Officer, Chief Accountant and Auditor of the Constitutional
Convention are hereby enjoined from taking any action in compliance with the said organic resolution. In
view of the peculiar circumstances of this case, the Court declares this decision immediately executory.
No costs.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 127325 March 19, 1997
MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and MARIA ISABEL ONGPIN, petitioners,
vs.
COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA & CARMEN PEDROSA, in their
capacities as founding members of the People's Initiative for Reforms, Modernization and Action
(PIRMA), respondents.
SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL ANG KONSTITUSYON (DIK), MOVEMENT OF
ATTORNEYS FOR BROTHERHOOD INTEGRITY AND NATIONALISM, INC. (MABINI), INTEGRATED BAR OF
THE PHILIPPINES (IBP), and LABAN NG DEMOKRATIKONG PILIPINO (LABAN), petitioners-intervenors.
DAVIDE, JR., J.:
The heart of this controversy brought to us by way of a petition for prohibition under Rule 65 of the
Rules of Court is the right of the people to directly propose amendments to the Constitution through the
system of initiative under Section 2 of Article XVII of the 1987 Constitution. Undoubtedly, this demands
special attention, as this system of initiative was unknown to the people of this country, except perhaps
to a few scholars, before the drafting of the 1987 Constitution. The 1986 Constitutional Commission
itself, through the original proponent 1 and the main sponsor 2 of the proposed Article on Amendments
or Revision of the Constitution, characterized this system as "innovative". 3 Indeed it is, for both under
the 1935 and 1973 Constitutions, only two methods of proposing amendments to, or revision of, the
Constitution were recognized, viz., (1) by Congress upon a vote of three-fourths of all its members and
(2) by a constitutional convention. 4 For this and the other reasons hereafter discussed, we resolved to
give due course to this petition.
On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public respondent Commission
on Elections (hereafter, COMELEC) a "Petition to Amend the Constitution, to Lift Term Limits of Elective
Officials, by People's Initiative" (hereafter, Delfin Petition) 5 wherein Delfin asked the COMELEC for an
order
1. Fixing the time and dates for signature gathering all over the country;
2. Causing the necessary publications of said Order and the attached "Petition for
Initiative on the 1987 Constitution, in newspapers of general and local circulation;
3. Instructing Municipal Election Registrars in all Regions of the Philippines, to
assist Petitioners and volunteers, in establishing signing stations at the time and on
the dates designated for the purpose.
Delfin alleged in his petition that he is a founding member of the Movement for People's Initiative, 6 a
group of citizens desirous to avail of the system intended to institutionalize people power; that he and
the members of the Movement and other volunteers intend to exercise the power to directly propose
amendments to the Constitution granted under Section 2, Article XVII of the Constitution; that the
exercise of that power shall be conducted in proceedings under the control and supervision of the
COMELEC; that, as required in COMELEC Resolution No. 2300, signature stations shall be established all
over the country, with the assistance of municipal election registrars, who shall verify the signatures
affixed by individual signatories; that before the Movement and other volunteers can gather signatures,
it is necessary that the time and dates to be designated for the purpose be first fixed in an order to be
issued by the COMELEC; and that to adequately inform the people of the electoral process involved, it is
likewise necessary that the said order, as well as the Petition on which the signatures shall be affixed, be
published in newspapers of general and local circulation, under the control and supervision of the
COMELEC.
The Delfin Petition further alleged that the provisions sought to be amended are Sections 4 and 7 of
Article VI, 7Section 4 of Article VII, 8 and Section 8 of Article X 9 of the Constitution. Attached to the
petition is a copy of a "Petition for Initiative on the 1987 Constitution" 10 embodying the proposed
amendments which consist in the deletion from the aforecited sections of the provisions concerning
term limits, and with the following proposition:
DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE GOVERNMENT
OFFICIALS, AMENDING FOR THE PURPOSE SECTIONS 4 AND 7 OF ARTICLE VI,
SECTION 4 OF ARTICLE VII, AND SECTION 8 OF ARTICLE X OF THE 1987 PHILIPPINE
CONSTITUTION?
According to Delfin, the said Petition for Initiative will first be submitted to the people, and after it is
signed by at least twelve per cent of the total number of registered voters in the country it will be
formally filed with the COMELEC.
Upon the filing of the Delfin Petition, which was forthwith given the number UND 96-037 (INITIATIVE),
the COMELEC, through its Chairman, issued an Order 11 (a) directing Delfin "to cause the publication of
the petition, together with the attached Petition for Initiative on the 1987 Constitution (including the
proposal, proposed constitutional amendment, and the signature form), and the notice of hearing in
three (3) daily newspapers of general circulation at his own expense" not later than 9 December 1996;
and (b) setting the case for hearing on 12 December 1996 at 10:00 a.m.
At the hearing of the Delfin Petition on 12 December 1996, the following appeared: Delfin and Atty. Pete
Q. Quadra; representatives of the People's Initiative for Reforms, Modernization and Action (PIRMA);
intervenor-oppositor Senator Raul S. Roco, together with his two other lawyers, and representatives of,
or counsel for, the Integrated Bar of the Philippines (IBP), Demokrasya-Ipagtanggol ang Konstitusyon
(DIK), Public Interest Law Center, and Laban ng Demokratikong Pilipino (LABAN). 12 Senator Roco, on that
same day, filed a Motion to Dismiss the Delfin Petition on the ground that it is not the initiatory petition
properly cognizable by the COMELEC.
After hearing their arguments, the COMELEC directed Delfin and the oppositors to file their "memoranda
and/or oppositions/memoranda" within five days. 13
On 18 December 1996, the petitioners herein Senator Miriam Defensor Santiago, Alexander Padilla,
and Maria Isabel Ongpin filed this special civil action for prohibition raising the following arguments:
 (1) The constitutional provision on people's initiative to amend the Constitution On 2 January 1997, private respondents, through Atty Quadra, filed their Comment 15 on the petition.
can only be implemented by law to be passed by Congress. No such law has been They argue therein that:
passed; in fact, Senate Bill No. 1290 entitled An Act Prescribing and Regulating
Constitution Amendments by People's Initiative, which petitioner Senator Santiago
1. IT IS NOT TRUE THAT "IT WOULD ENTAIL EXPENSES TO THE NATIONAL
filed on 24 November 1995, is still pending before the Senate Committee on
TREASURY FOR GENERAL REGISTRATION OF VOTERS AMOUNTING TO AT LEAST
Constitutional Amendments.
PESOS: ONE HUNDRED EIGHTY MILLION (P180,000,000.00)" IF THE "COMELEC
GRANTS THE PETITION FILED BY RESPONDENT DELFIN BEFORE THE COMELEC.
(2) It is true that R.A. No. 6735 provides for three systems of initiative, namely,
initiative on the Constitution, on statutes, and on local legislation. However, it
2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL GOVERNMENT IF
failed to provide any subtitle on initiative on the Constitution, unlike in the other
THE COMELEC GRANTS THE PETITION OF RESPONDENT DELFIN. ALL EXPENSES IN
modes of initiative, which are specifically provided for in Subtitle II and Subtitle III.
THE SIGNATURE GATHERING ARE ALL FOR THE ACCOUNT OF RESPONDENT DELFIN
This deliberate omission indicates that the matter of people's initiative to amend
AND HIS VOLUNTEERS PER THEIR PROGRAM OF ACTIVITIES AND EXPENDITURES
the Constitution was left to some future law. Former Senator Arturo Tolentino
SUBMITTED TO THE COMELEC. THE ESTIMATED COST OF THE DAILY PER DIEM OF
stressed this deficiency in the law in his privilege speech delivered before the
THE SUPERVISING SCHOOL TEACHERS IN THE SIGNATURE GATHERING TO BE
Senate in 1994: "There is not a single word in that law which can be considered as
DEPOSITED and TO BE PAID BY DELFIN AND HIS VOLUNTEERS IS P2,571,200.00;
implementing [the provision on constitutional initiative]. Such implementing
provisions have been obviously left to a separate law.
3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE SIGNATURE
GATHERING WHICH BY LAW COMELEC IS DUTY BOUND "TO SUPERVISE CLOSELY"
(3) Republic Act No. 6735 provides for the effectivity of the law after publication in
PURSUANT TO ITS "INITIATORY JURISDICTION" UPHELD BY THE HONORABLE
print media. This indicates that the Act covers only laws and not constitutional
COURT IN ITS RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY
amendments because the latter take effect only upon ratification and not after
METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416;
publication.

4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING LAW
(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern "the
IMPLEMENTING THE POWER OF PEOPLE INITIATIVE TO PROPOSE AMENDMENTS
conduct of initiative on the Constitution and initiative and referendum on national
TO THE CONSTITUTION. SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290
and local laws, is ultra vires insofar asinitiative on amendments to the Constitution
IS A DUPLICATION OF WHAT ARE ALREADY PROVIDED FOR IN REP. ACT NO. 6735;
is concerned, since the COMELEC has no power to provide rules and regulations
for the exercise of the right of initiative to amend the Constitution. Only Congress
is authorized by the Constitution to pass the implementing law. 5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16, 1991
PURSUANT TO REP. ACT 6735 WAS UPHELD BY THE HONORABLE COURT IN THE
RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY
(5) The people's initiative is limited to amendments to the Constitution, not
METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416 WHERE THE
to revision thereof. Extending or lifting of term limits constitutes a revision and is,
HONORABLE COURT SAID: "THE COMMISSION ON ELECTIONS CAN DO NO LESS BY
therefore, outside the power of the people's initiative.
SEASONABLY AND JUDICIOUSLY PROMULGATING GUIDELINES AND RULES FOR
BOTH NATIONAL AND LOCAL USE, IN IMPLEMENTING OF THESE LAWS."
(6) Finally, Congress has not yet appropriated funds for people's initiative; neither
the COMELEC nor any other government department, agency, or office has
6. EVEN SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 CONTAINS A
realigned funds for the purpose.
PROVISION DELEGATING TO THE COMELEC THE POWER TO "PROMULGATE SUCH
RULES AND REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE PURPOSES
To justify their recourse to us via the special civil action for prohibition, the petitioners allege that in the OF THIS ACT." (SEC. 12, S.B. NO. 1290, ENCLOSED AS ANNEX E, PETITION);
event the COMELEC grants the Delfin Petition, the people's initiative spearheaded by PIRMA would entail
expenses to the national treasury for general re-registration of voters amounting to at least P180 million,
7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF ELECTIVE
not to mention the millions of additional pesos in expenses which would be incurred in the conduct of
OFFICIALS PROVIDED UNDER THE 1987 CONSTITUTION IS NOT A "REVISION" OF
the initiative itself. Hence, the transcendental importance to the public and the nation of the issues
THE CONSTITUTION. IT IS ONLY AN AMENDMENT. "AMENDMENT ENVISAGES AN
raised demands that this petition for prohibition be settled promptly and definitely, brushing aside
ALTERATION OF ONE OR A FEW SPECIFIC PROVISIONS OF THE CONSTITUTION.
technicalities of procedure and calling for the admission of a taxpayer's and legislator's suit. 14 Besides,
REVISION CONTEMPLATES A RE-EXAMINATION OF THE ENTIRE DOCUMENT TO
there is no other plain, speedy, and adequate remedy in the ordinary course of law.
DETERMINE HOW AND TO WHAT EXTENT IT SHOULD BE ALTERED." (PP. 412-413,
2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY JOAQUIN G. BERNAS, S.J.).
On 19 December 1996, this Court (a) required the respondents to comment on the petition within a non-
extendible period of ten days from notice; and (b) issued a temporary restraining order, effective
Also on 2 January 1997, private respondent Delfin filed in his own behalf a Comment 16 which starts off
immediately and continuing until further orders, enjoining public respondent COMELEC from proceeding
with an assertion that the instant petition is a "knee-jerk reaction to a draft 'Petition for Initiative on the
with the Delfin Petition, and private respondents Alberto and Carmen Pedrosa from conducting a
1987 Constitution'. . . which is not formally filed yet." What he filed on 6 December 1996 was an
signature drive for people's initiative to amend the Constitution.
"Initiatory Pleading" or "Initiatory Petition," which was legally necessary to start the signature campaign
to amend the Constitution or to put the movement to gather signatures under COMELEC power and
function. On the substantive allegations of the petitioners, Delfin maintains as follows:
(1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735, which
governs the conduct of initiative to amend the Constitution. The absence therein
of a subtitle for such initiative is not fatal, since subtitles are not requirements for
the validity or sufficiency of laws.
(2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition in
an initiative to amend the Constitution approved by the majority of the votes cast
in the plebiscite shall become effective as of the day of the plebiscite.
(3) The claim that COMELEC Resolution No. 2300 is ultra vires is contradicted by (a)
Section 2, Article IX-C of the Constitution, which grants the COMELEC the power to
enforce and administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum, and recall; and (b) Section 20 of R.A.
6735, which empowers the COMELEC to promulgate such rules and regulations as
may be necessary to carry out the purposes of the Act.
(4) The proposed initiative does not involve a revision of, but mere amendment to,
the Constitution because it seeks to alter only a few specific provisions of the
Constitution, or more specifically, only those which lay term limits. It does not seek
to reexamine or overhaul the entire document.
As to the public expenditures for registration of voters, Delfin considers petitioners' estimate of P180
million as unreliable, for only the COMELEC can give the exact figure. Besides, if there will be a plebiscite
it will be simultaneous with the 1997 Barangay Elections. In any event, fund requirements
for initiative will be a priority government expense because it will be for the exercise of the sovereign
power of the people.
In the Comment 17 for the public respondent COMELEC, filed also on 2 January 1997, the Office of the
Solicitor General contends that:
(1) R.A. No. 6735 deals with, inter alia, people's initiative to amend the
Constitution. Its Section 2 on Statement of Policy explicitly affirms, recognizes, and
guarantees that power; and its Section 3, which enumerates the three systems
of initiative, includes initiative on the Constitution and defines the same as the
power to propose amendments to the Constitution. Likewise, its Section 5
repeatedly mentionsinitiative on the Constitution.
(2) A separate subtitle on initiative on the Constitution is not necessary in R.A. No.
6735 because, being national in scope, that system of initiative is deemed included
in the subtitle on National Initiative and Referendum; and Senator Tolentino
simply overlooked pertinent provisions of the law when he claimed that nothing
therein was provided for initiative on the Constitution.
(3) Senate Bill No. 1290 is neither a competent nor a material proof that R.A. No.
6735 does not deal with initiative on the Constitution.
(4) Extension of term limits of elected officials constitutes a mere amendment to
the Constitution, not a revision thereof.
(5) COMELEC Resolution No. 2300 was validly issued under Section 20 of R.A. No.
6735 and under the Omnibus Election Code. The rule-making power of the
COMELEC to implement the provisions of R.A. No. 6735 was in fact upheld by this
Court in Subic Bay Metropolitan Authority vs. COMELEC.
On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary restraining order; (b) noted
the aforementioned Comments and the Motion to Lift Temporary Restraining Order filed by private
respondents through Atty. Quadra, as well as the latter's Manifestation stating that he is the counsel for
private respondents Alberto and Carmen Pedrosa only and the Comment he filed was for the Pedrosas;
and (c) granted the Motion for Intervention filed on 6 January 1997 by Senator Raul Roco and allowed
him to file his Petition in Intervention not later than 20 January 1997; and (d) set the case for hearing on
23 January 1997 at 9:30 a.m.
On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK) and the Movement of
Attorneys for Brotherhood Integrity and Nationalism, Inc. (MABINI), filed a Motion for Intervention.
Attached to the motion was their Petition in Intervention, which was later replaced by an Amended
Petition in Intervention wherein they contend that:
(1) The Delfin proposal does not involve a mere amendment to, but a revision of,
the Constitution because, in the words of Fr. Joaquin Bernas, S.J., 18 it would
involve a change from a political philosophy that rejects unlimited tenure to one
that accepts unlimited tenure; and although the change might appear to be an
isolated one, it can affect other provisions, such as, on synchronization of elections
and on the State policy of guaranteeing equal access to opportunities for public
service and prohibiting political dynasties. 19 Arevision cannot be done
by initiative which, by express provision of Section 2 of Article XVII of the
Constitution, is limited to amendments.
(2) The prohibition against reelection of the President and the limits provided for
all other national and local elective officials are based on the philosophy of
governance, "to open up the political arena to as many as there are Filipinos
qualified to handle the demands of leadership, to break the concentration of
political and economic powers in the hands of a few, and to promote effective
proper empowerment for participation in policy and decision-making for the
common good"; hence, to remove the term limits is to negate and nullify the noble
vision of the 1987 Constitution.
(3) The Delfin proposal runs counter to the purpose of initiative, particularly in a
conflict-of-interest situation. Initiative is intended as a fallback position that may
be availed of by the people only if they are dissatisfied with the performance of
their elective officials, but not as a premium for good performance. 20
(4) R.A. No. 6735 is deficient and inadequate in itself to be called the enabling law
that implements the people's initiative on amendments to the Constitution. It fails
to state (a) the proper parties who may file the petition, (b) the appropriate
agency before whom the petition is to be filed, (c) the contents of the petition, (d)
the publication of the same, (e) the ways and means of gathering the signatures of
the voters nationwide and 3% per legislative district, (f) the proper parties who
may oppose or question the veracity of the signatures, (g) the role of the COMELEC
 in the verification of the signatures and the sufficiency of the petition, (h) the
appeal from any decision of the COMELEC, (I) the holding of a plebiscite, and (g)
the appropriation of funds for such people's initiative. Accordingly, there being no
enabling law, the COMELEC has no jurisdiction to hear Delfin's petition.
(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by COMELEC
Resolution No. 2300, since the COMELEC is without authority to legislate the
procedure for a people's initiative under Section 2 of Article XVII of the
Constitution. That function exclusively pertains to Congress. Section 20 of R.A. No.
6735 does not constitute a legal basis for the Resolution, as the former does not
set a sufficient standard for a valid delegation of power.
On 20 January 1997, Senator Raul Roco filed his Petition
Intervention. 21 He avers that R.A. No. 6735 is the enabling law that implements the people's right to
initiate constitutional amendments. This law is a consolidation of Senate Bill No. 17 and House Bill No.
21505; he co-authored the House Bill and even delivered a sponsorship speech thereon. He likewise
submits that the COMELEC was empowered under Section 20 of that law to promulgate COMELEC
Resolution No. 2300. Nevertheless, he contends that the respondent Commission is without jurisdiction
to take cognizance of the Delfin Petition and to order its publication because the said petition is not the
initiatory pleading contemplated under the Constitution, Republic Act No. 6735, and COMELEC
Resolution No. 2300. What vests jurisdiction upon the COMELEC in an initiative on the Constitution is the
filing of a petition for initiative which is signedby the required number of registered voters. He also
submits that the proponents of a constitutional amendment cannot avail of the authority and resources
of the COMELEC to assist them is securing the required number of signatures, as the COMELEC's role in
an initiative on the Constitution is limited to the determination of the sufficiency of the initiative petition
and the call and supervision of a plebiscite, if warranted.
On 20 January 1997, LABAN filed a Motion for Leave to Intervene.
The following day, the IBP filed a Motion for Intervention to which it attached a Petition in Intervention
raising the following arguments:
(1) Congress has failed to enact an enabling law mandated under Section 2, Article
XVII of the 1987 Constitution.
(2) COMELEC Resolution No. 2300 cannot substitute for the required implementing
law on the initiative to amend the Constitution.
(3) The Petition for Initiative suffers from a fatal defect in that it does not have the
required number of signatures.
(4) The petition seeks, in effect a revision of the Constitution, which can be
proposed only by Congress or a constitutional convention. 22
On 21 January 1997, we promulgated a Resolution (a) granting the Motions for Intervention filed by the
DIK and MABINI and by the IBP, as well as the Motion for Leave to Intervene filed by LABAN; (b)
admitting the Amended Petition in Intervention of DIK and MABINI, and the Petitions in Intervention of
Senator Roco and of the IBP; (c) requiring the respondents to file within a nonextendible period of five
days their Consolidated Comments on the aforesaid Petitions in Intervention; and (d) requiring LABAN to
file its Petition in Intervention within a nonextendible period of three days from notice, and the
respondents to comment thereon within a nonextendible period of five days from receipt of the said
Petition in Intervention.
At the hearing of the case on 23 January 1997, the parties argued on the following pivotal issues, which
the Court formulated in light of the allegations and arguments raised in the pleadings so far filed:
1. Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative and
Referendum and Appropriating Funds Therefor, was intended to include or
cover initiative on amendments to the Constitution; and if so, whether the Act, as
worded, adequately covers such initiative.
2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and
in
Regulations Governing the Conduct of Initiative on the Constitution, and Initiative
and Referendum on National and Local Laws) regarding the conduct of initiative on
amendments to the Constitution is valid, considering the absence in the law of
specific provisions on the conduct of such initiative.
3. Whether the lifting of term limits of elective national and local officials, as
proposed in the draft "Petition for Initiative on the 1987 Constitution," would
constitute a revision of, or an amendment to, the Constitution.
4. Whether the COMELEC can take cognizance of, or has jurisdiction over, a
petition solely intended to obtain an order (a) fixing the time and dates for
signature gathering; (b) instructing municipal election officers to assist Delfin's
movement and volunteers in establishing signature stations; and (c) directing or
causing the publication of, inter alia, the unsigned proposed Petition for Initiative
on the 1987 Constitution.
5. Whether it is proper for the Supreme Court to take cognizance of the petition
when there is a pending case before the COMELEC.
After hearing them on the issues, we required the parties to submit simultaneously their respective
memoranda within twenty days and requested intervenor Senator Roco to submit copies of the
deliberations on House Bill No. 21505.
On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts the allegations and
arguments in the main Petition. It further submits that the COMELEC should have dismissed the Delfin
Petition for failure to state a sufficient cause of action and that the Commission's failure or refusal to do
so constituted grave abuse of discretion amounting to lack of jurisdiction.
On 28 January 1997, Senator Roco submitted copies of portions of both the Journal and the Record of
the House of Representatives relating to the deliberations of House Bill No. 21505, as well as the
transcripts of stenographic notes on the proceedings of the Bicameral Conference Committee,
Committee on Suffrage and Electoral Reforms, of 6 June 1989 on House Bill No. 21505 and Senate Bill
No. 17.
Private respondents Alberto and Carmen Pedrosa filed their Consolidated Comments on the Petitions in
Intervention of Senator Roco, DIK and MABINI, and IBP. 23 The parties thereafter filed, in due time, their
separate memoranda. 24
As we stated in the beginning, we resolved to give due course to this special civil action.
For a more logical discussion of the formulated issues, we shall first take up the fifth issue which appears
to pose a prejudicial procedural question.
I
THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY IN THE COMELEC OF THE DELFIN
PETITION.
Except for the petitioners and intervenor Roco, the parties paid no serious attention to the fifth
issue, i.e., whether it is proper for this Court to take cognizance of this special civil action when there is a
pending case before the COMELEC. The petitioners provide an affirmative answer. Thus:
28. The Comelec has no jurisdiction to take cognizance of the petition filed by
private respondent Delfin. This being so, it becomes imperative to stop the
Comelec from proceeding any further, and under the Rules of Court, Rule 65,
Section 2, a petition for prohibition is the proper remedy.
29. The writ of prohibition is an extraordinary judicial writ issuing out of a court of
superior jurisdiction and directed to an inferior court, for the purpose of
preventing the inferior tribunal from usurping a jurisdiction with which it is not
legally vested. (People v. Vera, supra., p. 84). In this case the writ is an urgent
necessity, in view of the highly divisive and adverse environmental consequences
on the body politic of the questioned Comelec order. The consequent climate of
legal confusion and political instability begs for judicial statesmanship.
30. In the final analysis, when the system of constitutional law is threatened by the
political ambitions of man, only the Supreme Court
can save a nation in peril and uphold the paramount majesty of the Constitution. 25
It must be recalled that intervenor Roco filed with the COMELEC a motion to dismiss the Delfin Petition
on the ground that the COMELEC has no jurisdiction or authority to entertain the petition. 26 The
COMELEC made no ruling thereon evidently because after having heard the arguments of Delfin and the
oppositors at the hearing on 12 December 1996, it required them to submit within five days their
memoranda or oppositions/memoranda. 27 Earlier, or specifically on 6 December 1996, it practically gave
due course to the Delfin Petition by ordering Delfin to cause the publication of the petition, together
with the attached Petition for Initiative, the signature form, and the notice of hearing; and by setting the
case for hearing. The COMELEC's failure to act on Roco's motion to dismiss and its insistence to hold on
to the petition rendered ripe and viable the instant petition under Section 2 of Rule 65 of the Rules of
Court, which provides:
Sec. 2. Petition for prohibition. Where the proceedings of any tribunal,
corporation, board, or person, whether exercising functions judicial or ministerial,
are without or in excess of its or his jurisdiction, or with grave abuse of discretion,
and there is no appeal or any other plain, speedy and adequate remedy in the
ordinary course of law, a person aggrieved thereby may file a verified petition in
the proper court alleging the facts with certainty and praying that judgment be
rendered commanding the defendant to desist from further proceedings in the
action or matter specified therein.
It must also be noted that intervenor Roco claims that the COMELEC has no jurisdiction over the Delfin
Petition because the said petition is not supported by the required minimum number of signatures of
registered voters. LABAN also asserts that the COMELEC gravely abused its discretion in refusing to
dismiss the Delfin Petition, which does not contain the required number of signatures. In light of these
claims, the instant case may likewise be treated as a special civil action for certiorari under Section I of
Rule 65 of the Rules of Court.
In any event, as correctly pointed out by intervenor Roco in his Memorandum, this Court may brush
aside technicalities of procedure in
cases of transcendental importance. As we stated in Kilosbayan, Inc. v. Guingona, Jr. 28
A party's standing before this Court is a procedural technicality which it may, in the
exercise of its discretion, set aside in view of the importance of issues raised. In
the landmark Emergency Powers Cases, this Court brushed aside this technicality
because the transcendental importance to the public of these cases demands that
they be settled promptly and definitely, brushing aside, if we must, technicalities
of procedure.
II
R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, BUT IS, UNFORTUNATELY, INADEQUATE TO COVER THAT SYSTEM.
Section 2 of Article XVII of the Constitution provides:
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the
people through initiative upon a petition of at least twelve per centum of the total
number of registered voters, of which every legislative district must be
represented by at least three per centum of the registered voters therein. No
amendment under this section shall be authorized within five years following the
ratification of this Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right.
This provision is not self-executory. In his book, 29 Joaquin Bernas, a member of the 1986 Constitutional
Commission, stated:
Without implementing legislation Section 2 cannot operate. Thus, although this
mode of amending the Constitution is a mode of amendment which bypasses
congressional action, in the last analysis it still is dependent on congressional
action.
Bluntly stated, the right of the people to directly propose amendments to the Constitution
through the system of initiative would remain entombed in the cold niche of the Constitution
until Congress provides for its implementation. Stated otherwise, while the Constitution has
recognized or granted that right, the people cannot exercise it if Congress, for whatever
reason, does not provide for its implementation.
This system of initiative was originally included in Section 1 of the draft Article on Amendment or
Revision proposed by the Committee on Amendments and Transitory Provisions of the 1986
Constitutional Commission in its Committee Report No. 7 (Proposed Resolution No. 332). 30 That section
reads as follows:
Sec. 1. Any amendment to, or revision of, this Constitution may be proposed:
(a) by the National Assembly upon a vote of three-fourths of all its members; or
(b) by a constitutional convention; or
(c) directly by the people themselves thru initiative as provided for in Article___
Section ___of the Constitution. 31
After several interpellations, but before the period of amendments, the Committee submitted
a new formulation of the concept of initiative which it denominated as Section 2; thus:
MR. SUAREZ. Thank you, Madam President. May we
respectfully call attention of the Members of the
Commission that pursuant to the mandate given to us last
night, we submitted this afternoon a complete Committee
Report No. 7 which embodies the proposed provision
governing the matter of initiative. This is now covered by
Section 2 of the complete committee report. With the
permission of the Members, may I quote Section 2:
xxx xxx xxx
The people may, after five years from the date of the last plebiscite held, directly
propose amendments to this Constitution thru initiative upon petition of at least
ten percent of the registered voters.
This completes the blanks appearing in the original Committee Report No. 7. 32
The interpellations on Section 2 showed that the details for carrying out Section 2 are left to the
legislature. Thus:
FR. BERNAS. Madam President, just two simple, clarificatory
questions.
First, on Section 1 on the matter of initiative upon petition
of at least 10 percent, there are no details in the provision on
how to carry this out. Do we understand, therefore, that we
are leaving this matter to the legislature?
MR. SUAREZ. That is right, Madam President.
FR. BERNAS. And do we also understand, therefore, that for
as long as the legislature does not pass the necessary
implementing law on this, this will not operate?
MR. SUAREZ. That matter was also taken up during the
committee hearing, especially with respect to the budget
appropriations which would have to be legislated so that the
plebiscite could be called. We deemed it best that this
matter be left to the legislature. The Gentleman is right. In
any event, as envisioned, no amendment through the power
of initiative can be called until after five years from the date
of the ratification of this Constitution. Therefore, the first
amendment that could be proposed through the exercise of
this initiative power would be after five years. It is
reasonably expected that within that five-year period, the
National Assembly can come up with the appropriate rules
governing the exercise of this power.
FR. BERNAS. Since the matter is left to the legislature the
details on how this is to be carried out is it possible that,
in effect, what will be presented to the people for
ratification is the work of the legislature rather than of the
people? Does this provision exclude that possibility?
MR. SUAREZ. No, it does not exclude that possibility because
even the legislature itself as a body could propose that
amendment, maybe individually or collectively, if it fails to
muster the three-fourths vote in order to constitute itself as
a constituent assembly and submit that proposal to the
people for ratification through the process of an initiative.
MS. AQUINO. Do I understand from the sponsor that the
intention in the proposal is to vest constituent power in the
people to amend the Constitution?
MR. SUAREZ. That is absolutely correct, Madam President.
MS. AQUINO. I fully concur with the underlying precept of
the proposal in terms of institutionalizing popular
participation in the drafting of the Constitution or in the
amendment thereof, but I would have a lot of difficulties in
terms of accepting the draft of Section 2, as written. Would
the sponsor agree with me that in the hierarchy of legal
mandate, constituent power has primacy over all other legal
mandates?
MR. SUAREZ. The Commissioner is right, Madam President.
MS. AQUINO. And would the sponsor agree with me that in
the hierarchy of legal values, the Constitution is source of all
legal mandates and that therefore we require a great deal of
circumspection in the drafting and in the amendments of
the Constitution?
MR. SUAREZ. That proposition is nondebatable.
 MS. AQUINO. Such that in order to underscore the primacy in Section 1 to include the process of revision; whereas
of constituent power we have a separate article in the the process of initiation to amend, which is given to the
constitution that would specifically cover the process and public, would only apply to amendments?
the modes of amending the Constitution?
MR. SUAREZ. That is right. Those were the terms envisioned
MR. SUAREZ. That is right, Madam President. in the Committee. 35

MS. AQUINO. Therefore, is the sponsor inclined, as the Amendments to the proposed Section 2 were thereafter introduced by then Commissioner Hilario G.
provisions are drafted now, to again concede to the Davide, Jr., which the Committee accepted. Thus:
legislature the process or the requirement of determining the
mechanics of amending the Constitution by people's
MR. DAVIDE. Thank you Madam President. I propose to
initiative?
substitute the entire Section 2 with the following:

MR. SUAREZ. The matter of implementing this could very

MR. DAVIDE. Madam President, I have modified the
well be placed in the hands of the National Assembly, not
proposed amendment after taking into account the
unless we can incorporate into this provision the mechanics
modifications submitted by the sponsor himself and the
that would adequately cover all the conceivable
honorable Commissioners Guingona, Monsod, Rama, Ople,
situations. 33
de los Reyes and Romulo. The modified amendment in
substitution of the proposed Section 2 will now read as
It was made clear during the interpellations that the aforementioned Section 2 is limited to proposals to follows: "SECTION 2. AMENDMENTS TO THIS
AMEND not to REVISE the Constitution; thus: CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY
THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT
LEAST TWELVE PERCENT OF THE TOTAL NUMBER Of
MR. SUAREZ. . . . This proposal was suggested on the theory
REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE
that this matter of initiative, which came about because of
DISTRICT MUST BE REPRESENTED BY AT LEAST THREE
the extraordinary developments this year, has to be
PERCENT OF THE REGISTERED VOTERS THEREOF. NO
separated from the traditional modes of amending the
AMENDMENT UNDER THIS SECTION SHALL BE AUTHORIZED
Constitution as embodied in Section 1. The committee
WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF THIS
members felt that this system of initiative should not extend
CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE
to the revision of the entire Constitution, so we removed it
YEARS THEREAFTER.
from the operation of Section 1 of the proposed Article on
Amendment or Revision. 34
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE
IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.
xxx xxx xxx

MR. SUAREZ. Madam President, considering that the

MS. AQUINO. In which case, I am seriously bothered by
proposed amendment is reflective of the sense contained in
providing this process of initiative as a separate section in
Section 2 of our completed Committee Report No. 7, we
the Article on Amendment. Would the sponsor be amenable
accept the proposed amendment. 36
to accepting an amendment in terms of realigning Section 2
as another subparagraph (c) of Section 1, instead of setting
it up as another separate section as if it were a self- The interpellations which ensued on the proposed modified amendment to Section 2 clearly
executing provision? showed that it was a legislative act which must implement the exercise of the right. Thus:

MR. SUAREZ. We would be amenable except that, as we MR. ROMULO. Under Commissioner Davide's amendment, is
clarified a while ago, this process of initiative is limited to the it possible for the legislature to set forth certain procedures
matter of amendment and should not expand into a to carry out the initiative. . .?
revision which contemplates a total overhaul of the
Constitution. That was the sense that was conveyed by the
MR. DAVIDE. It can.
Committee.

xxx xxx xxx

MS. AQUINO. In other words, the Committee was
attempting to distinguish the coverage of modes (a) and (b)
 MR. ROMULO. But the Commissioner's amendment does
not prevent the legislature from asking another body to set
the proposition in proper form.
MR. DAVIDE. The Commissioner is correct. In other words,
the implementation of this particular right would be subject
to legislation, provided the legislature cannot determine
anymore the percentage of the requirement.
MR. ROMULO. But the procedures, including the
determination of the proper form for submission to the
people, may be subject to legislation.
MR. DAVIDE. As long as it will not destroy the substantive
right to initiate. In other words, none of the procedures to
be proposed by the legislative body must diminish or impair
the right conceded here.
MR. ROMULO. In that provision of the Constitution can the
procedures which I have discussed be legislated?
MR. DAVIDE. Yes. 37
Commissioner Davide also reaffirmed that his modified amendment strictly confines initiative to
AMENDMENTS to NOT REVISION of the Constitution. Thus:
MR. DAVIDE. With pleasure, Madam President.
MR. MAAMBONG. My first question: Commissioner Davide's
proposed amendment on line 1 refers to "amendment."
Does it not cover the word "revision" as defined by
Commissioner Padilla when he made the distinction
between the words "amendments" and "revision"?
MR. DAVIDE. No, it does not, because "amendments" and
"revision" should be covered by Section 1. So insofar as
initiative is concerned, it can only relate to "amendments"
not "revision." 38
Commissioner Davide further emphasized that the process of proposing amendments
through initiative must be more rigorous and difficult than the initiative on legislation. Thus:
MR. DAVIDE. A distinction has to be made that under this
proposal, what is involved is an amendment to the
Constitution. To amend a Constitution would ordinarily
require a proposal by the National Assembly by a vote of
three-fourths; and to call a constitutional convention would
require a higher number. Moreover, just to submit the issue
of calling a constitutional convention, a majority of the
National Assembly is required, the import being that the
process of amendment must be made more rigorous and
difficult than probably initiating an ordinary legislation or
putting an end to a law proposed by the National Assembly
by way of a referendum. I cannot agree to reducing the
requirement approved by the Committee on the Legislative
because it would require another voting by the Committee,
and the voting as precisely based on a requirement of 10
percent. Perhaps, I might present such a proposal, by way of
an amendment, when the Commission shall take up the
Article on the Legislative or on the National Assembly on
plenary sessions. 39
The Davide modified amendments to Section 2 were subjected to amendments, and the final version,
which the Commission approved by a vote of 31 in favor and 3 against, reads as follows:
MR. DAVIDE. Thank you Madam President. Section 2, as
amended, reads as follows: "AMENDMENT TO THIS
CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY
THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT
LEAST TWELVE PERCENT OF THE TOTAL NUMBER OF
REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE
DISTRICT MUST BE REPRESENTED BY AT LEAST THREE
PERCENT OF THE REGISTERED VOTERS THEREOF. NO
AMENDMENT UNDER THIS SECTION SHALL BE AUTHORIZED
WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF THIS
CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE
YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE
FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS
RIGHT. 40
The entire proposed Article on Amendments or Revisions was approved on second reading on
9 July 1986.41 Thereafter, upon his motion for reconsideration, Commissioner Gascon was
allowed to introduce an amendment to Section 2 which, nevertheless, was withdrawn. In
view thereof, the Article was again approved on Second and Third Readings on 1 August
1986. 42
However, the Committee on Style recommended that the approved Section 2 be amended by changing
"percent" to "per centum" and "thereof" to "therein" and deleting the phrase "by law" in the second
paragraph so that said paragraph reads: The Congress 43 shall provide for the implementation of the
exercise of this right. 44 This amendment was approved and is the text of the present second paragraph
of Section 2.
The conclusion then is inevitable that, indeed, the system of initiative on the Constitution under Section
2 of Article XVII of the Constitution is not self-executory.
Has Congress "provided" for the implementation of the exercise of this right? Those who answer the
question in the affirmative, like the private respondents and intervenor Senator Roco, point to us R.A.
No. 6735.
There is, of course, no other better way for Congress to implement the exercise of the right than through
the passage of a statute or legislative act. This is the essence or rationale of the last minute amendment
by the Constitutional Commission to substitute the last paragraph of Section 2 of Article XVII then
reading:
The Congress 45 shall by law provide for the implementation of the exercise of this
right.
with
The Congress shall provide for the implementation of the exercise of this right.
This substitute amendment was an investiture on Congress of a power to provide for the rules
implementing the exercise of the right. The "rules" means "the details on how [the right] is to
be carried out." 46
We agree that R.A. No. 6735 was, as its history reveals, intended to cover initiative to propose
amendments to the Constitution. The Act is a consolidation of House Bill No. 21505 and Senate Bill No.
17. The former was prepared by the Committee on Suffrage and Electoral Reforms of the House of
Representatives on the basis of two House Bills referred to it, viz., (a) House Bill No. 497, 47 which dealt
with the initiative and referendum mentioned
in Sections 1 and 32 of Article VI of the Constitution; and (b) House Bill No. 988, 48 which dealt with the
subject matter of House Bill No. 497, as well as with initiative and referendum under Section 3 of Article
X (Local Government) and initiative provided for in Section 2 of Article XVII of the Constitution. Senate
Bill No. 17 49 solely dealt with initiative and referendum concerning ordinances or resolutions of local
government units. The Bicameral Conference Committee consolidated Senate Bill No. 17 and House Bill
No. 21505 into a draft bill, which was subsequently approved on 8 June 1989 by the Senate 50 and by the
House of Representatives. 51 This approved bill is now R.A. No. 6735.
But is R.A. No. 6735 a full compliance with the power and duty of Congress to "provide for the
implementation of the exercise of the right?"
The foregoing conclusion is further buttressed by the fact that this section was lifted from Section 1 of
Senate Bill No. 17, which solely referred to a statement of policy on local initiative and referendum and
appropriately used the phrases "propose and enact," "approve or reject" and "in whole or in part." 52
Second. It is true that Section 3 (Definition of Terms) of the Act defines initiative on amendments to the
Constitution and mentions it as one of the three systems of initiative, and that Section 5 (Requirements)
restates the constitutional requirements as to the percentage of the registered voters who must submit
the proposal. But unlike in the case of the other systems of initiative, the Act does not provide for the
contents of a petition forinitiative on the Constitution. Section 5, paragraph (c) requires, among other
things, statement of the proposed law sought to be enacted, approved or rejected, amended or repealed,
as the case may be. It does not include, as among the contents of the petition, the provisions of the
Constitution sought to be amended, in the case of initiative on the Constitution. Said paragraph (c) reads
in full as follows:
(c) The petition shall state the following:
c.1 contents or text of the proposed law sought to be enacted, approved or
rejected, amended or repealed, as the case may be;
c.2 the proposition;
c.3 the reason or reasons therefor;
c.4 that it is not one of the exceptions provided therein;
c.5 signatures of the petitioners or registered voters; and
c.6 an abstract or summary proposition is not more than one hundred (100) words
which shall be legibly written or printed at the top of every page of the petition.
(Emphasis supplied).

A careful scrutiny of the Act yields a negative answer. The use of the clause "proposed laws sought to be enacted, approved or rejected, amended
or repealed" only strengthens the conclusion that Section 2, quoted earlier, excludes initiative
on amendments to the Constitution.
First. Contrary to the assertion of public respondent COMELEC, Section 2 of the Act does not suggest an
initiative on amendments to the Constitution. The said section reads:
Third. While the Act provides subtitles for National Initiative and Referendum (Subtitle II) and for Local
Initiative and Referendum (Subtitle III), no subtitle is provided for initiative on the Constitution. This
Sec. 2. Statement and Policy. The power of the people under a system of
conspicuous silence as to the latter simply means that the main thrust of the Act is initiative and
initiative and referendum to directly propose, enact, approve or reject, in whole or
referendum on national and local laws. If Congress intended R.A. No. 6735 to fully provide for the
in part, the Constitution, laws, ordinances, or resolutions passed by any legislative
implementation of the initiative on amendments to the Constitution, it could have provided for a subtitle
body upon compliance with the requirements of this Act is hereby affirmed,
therefor, considering that in the order of things, the primacy of interest, or hierarchy of values, the right
recognized and guaranteed. (Emphasis supplied).
of the people to directly propose amendments to the Constitution is far more important than the
initiative on national and local laws.
The inclusion of the word "Constitution" therein was a delayed afterthought. That word is
neither germane nor relevant to said section, which exclusively relates to initiative and
We cannot accept the argument that the initiative on amendments to the Constitution is subsumed
referendum on national laws and local laws, ordinances, and resolutions. That section is silent
under the subtitle on National Initiative and Referendum because it is national in scope. Our reading of
as to amendments on the Constitution. As pointed out earlier, initiative on the Constitution is
Subtitle II (National Initiative and Referendum) and Subtitle III (Local Initiative and Referendum) leaves
confined only to proposals to AMEND. The people are not accorded the power to "directly
no room for doubt that the classification is not based on the scope of the initiative involved, but on
propose, enact, approve, or reject, in whole or in part, the Constitution" through the system
its nature and character. It is "national initiative," if what is proposed to be adopted or enacted is
of initiative. They can only do so with respect to "laws, ordinances, or resolutions."
a national law, or a law which only Congress can pass. It is "local initiative" if what is proposed to be
adopted or enacted is a law, ordinance, or resolution which only the legislative bodies of the
governments of the autonomous regions, provinces, cities, municipalities, and barangays can pass. This
classification of initiative into national and local is actually based on Section 3 of the Act, which we quote
for emphasis and clearer understanding:
Sec. 3. Definition of terms
xxx xxx xxx
Upon the other hand, Section 18 on "Authority of Courts" under subtitle III on Local Initiative and
Referendum is misplaced, 54 since the provision therein applies to both national and local initiative and
referendum. It reads:
Sec. 18. Authority of Courts. Nothing in this Act shall prevent or preclude the
proper courts from declaring null and void any proposition approved pursuant to
this Act for violation of the Constitution or want of capacity of the local legislative
body to enact the said measure.

There are three (3) systems of initiative, namely:
a.1 Initiative on the Constitution which refers to a petition proposing amendments
to the Constitution;
a.2 Initiative on Statutes which refers to a petition proposing to enact a national
legislation; and
Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing for the details in the
implementation of initiative and referendum on national and local legislation thereby giving them special
attention, it failed, rather intentionally, to do so on the system of initiative on amendments to the
Constitution. Anent the initiative on national legislation, the Act provides for the following:
(a) The required percentage of registered voters to sign the petition and the contents of the petition;
(b) The conduct and date of the initiative;

a.3 Initiative on local legislation which refers to a petition proposing to enact a

(c) The submission to the electorate of the proposition and the required number of votes for its
regional, provincial, city, municipal, or barangay law, resolution or ordinance.
approval;
(Emphasis supplied).

(d) The certification by the COMELEC of the approval of the proposition;

Hence, to complete the classification under subtitles there should have been a subtitle on initiative on
amendments to the Constitution. 53
(e) The publication of the approved proposition in the Official Gazette or in a newspaper of general
circulation in the Philippines; and
A further examination of the Act even reveals that the subtitling is not accurate. Provisions not germane
to the subtitle on National Initiative and Referendum are placed therein, like (1) paragraphs (b) and (c) of
Section 9, which reads: (f) The effects of the approval or rejection of the proposition. 55

(b) The proposition in an initiative on the Constitution approved by the majority of As regards local initiative, the Act provides for the following:
the votes cast in the plebiscite shall become effective as to the day of the
plebiscite.
(a) The preliminary requirement as to the number of signatures of registered voters for the petition;

(c) A national or local initiative proposition approved by majority of the votes cast
(b) The submission of the petition to the local legislative body concerned;
in an election called for the purpose shall become effective fifteen (15) days after
certification and proclamation of the Commission. (Emphasis supplied).
(c) The effect of the legislative body's failure to favorably act thereon, and the invocation of the power of
initiative as a consequence thereof;
(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative with the legislative bodies
of local governments; thus:
(d) The formulation of the proposition;
Sec. 11. Indirect Initiative. Any duly accredited people's organization, as defined
by law, may file a petition for indirect initiative with the House of Representatives, (e) The period within which to gather the signatures;
and other legislative bodies. . . .
(f) The persons before whom the petition shall be signed;
and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on the findings of
sufficiency or insufficiency of the petition for initiative or referendum, which could be (g) The issuance of a certification by the COMELEC through its official in the local government unit
petitions for both national and localinitiative and referendum. concerned as to whether the required number of signatures have been obtained;
(h) The setting of a date by the COMELEC for the submission of the proposition to the registered voters
for their approval, which must be within the period specified therein;
(i) The issuance of a certification of the result;
(j) The date of effectivity of the approved proposition;
(k) The limitations on local initiative; and
(l) The limitations upon local legislative bodies. 56
Upon the other hand, as to initiative on amendments to the Constitution, R.A. No. 6735, in all of its
twenty-three sections, merely (a) mentions, the word "Constitution" in Section 2; (b) defines "initiative
on the Constitution" and includes it in the enumeration of the three systems of initiative in Section 3; (c)
speaks of "plebiscite" as the process by which the proposition in an initiative on the Constitution may be
approved or rejected by the people; (d) reiterates the constitutional requirements as to the number of
voters who should sign the petition; and (e) provides for the date of effectivity of the approved
proposition.
There was, therefore, an obvious downgrading of the more important or the paramount system of
initiative. RA. No. 6735 thus delivered a humiliating blow to the system of initiative on amendments to
the Constitution by merely paying it a reluctant lip service. 57
The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete, inadequate, or wanting in
essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. Its
lacunae on this substantive matter are fatal and cannot be cured by "empowering" the COMELEC "to
promulgate such rules and regulations as may be necessary to carry out the purposes of [the] Act. 58
The rule is that what has been delegated, cannot be delegated or as expressed in a Latin maxim: potestas
delegata non delegari potest. 59 The recognized exceptions to the rule are as follows:
(1) Delegation of tariff powers to the President under Section 28(2) of Article VI of the Constitution;
(2) Delegation of emergency powers to the President under Section 23(2) of Article VI of the
Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies. 60
Empowering the COMELEC, an administrative body exercising quasi-judicial functions, to promulgate
rules and regulations is a form of delegation of legislative authority under no. 5 above. However, in every
case of permissible delegation, there must be a showing that the delegation itself is valid. It is valid only
if the law (a) is complete in itself, setting forth therein the policy to be executed, carried out, or
implemented by the delegate; and (b) fixes a standard the limits of which are sufficiently determinate
and determinable to which the delegate must conform in the performance of his functions. 61 A
sufficient standard is one which defines legislative policy, marks its limits, maps out its boundaries and
specifies the public agency to apply it. It indicates the circumstances under which the legislative
command is to be effected. 62
Insofar as initiative to propose amendments to the Constitution is concerned, R.A. No. 6735 miserably
failed to satisfy both requirements in subordinate legislation. The delegation of the power to the
COMELEC is then invalid.
III
COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND REGULATIONS ON
THE CONDUCT OF INITIATIVE ON AMENDMENTS TO THE CONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly promulgate rules and regulations to implement the
exercise of the right of the people to directly propose amendments to the Constitution through the
system of initiative. It does not have that power under R.A. No. 6735. Reliance on the COMELEC's power
under Section 2(1) of Article IX-C of the Constitution is misplaced, for the laws and regulations referred
to therein are those promulgated by the COMELEC under (a) Section 3 of Article IX-C of the Constitution,
or (b) a law where subordinate legislation is authorized and which satisfies the "completeness" and the
"sufficient standard" tests.
IV
COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN
ENTERTAINING THE DELFIN PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the power of Congress to
implement the right to initiate constitutional amendments, or that it has validly vested upon the
COMELEC the power of subordinate legislation and that COMELEC Resolution No. 2300 is valid, the
COMELEC acted without jurisdiction or with grave abuse of discretion in entertaining the Delfin Petition.
Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No. 6735, a petition for
initiative on the Constitution must be signed by at least 12% of the total number of registered voters of
which every legislative district is represented by at least 3% of the registered voters therein. The Delfin
Petition does not contain signatures of the required number of voters. Delfin himself admits that he has
not yet gathered signatures and that the purpose of his petition is primarily to obtain assistance in his
drive to gather signatures. Without the required signatures, the petition cannot be deemed validly
initiated.
The COMELEC acquires jurisdiction over a petition for initiative only after its filing. The petition then is
the initiatory pleading. Nothing before its filing is cognizable by the COMELEC, sitting en banc. The only
participation of the COMELEC or its personnel before the filing of such petition are (1) to prescribe the
form of the petition; 63 (2) to issue through its Election Records and Statistics Office a certificate on the
total number of registered voters in each legislative district; 64 (3) to assist, through its election registrars,
in the establishment of signature stations; 65 and (4) to verify, through its election registrars, the
signatures on the basis of the registry list of voters, voters' affidavits, and voters' identification cards
used in the immediately preceding election. 66
Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and COMELEC Resolution No.
2300, it cannot be entertained or given cognizance of by the COMELEC. The respondent Commission
must have known that the petition does not fall under any of the actions or proceedings under the
COMELEC Rules of Procedure or under Resolution No. 2300, for which reason it did not assign to the
petition a docket number. Hence, the said petition was merely entered as UND, meaning, undocketed.
That petition was nothing more than a mere scrap of paper, which should not have been dignified by the
Order of 6 December 1996, the hearing on 12 December 1996, and the order directing Delfin and the
oppositors to file their memoranda or oppositions. In so dignifying it, the COMELEC acted without
jurisdiction or with grave abuse of discretion and merely wasted its time, energy, and resources.

The foregoing considered, further discussion on the issue of whether the proposal to lift the term limits
of elective national and local officials is an amendment to, and not a revision of, the Constitution is
rendered unnecessary, if not academic.

CONCLUSION

This petition must then be granted, and the COMELEC should be permanently enjoined from
entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a
sufficient law shall have been validly enacted to provide for the implementation of the system.

We feel, however, that the system of initiative to propose amendments to the Constitution should no
longer be kept in the cold; it should be given flesh and blood, energy and strength. Congress should not
tarry any longer in complying with the constitutional mandate to provide for the implementation of the
right of the people under that system.

WHEREFORE, judgment is hereby rendered

a) GRANTING the instant petition;

b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to the
Constitution, and to have failed to provide sufficient standard for subordinate legislation;

c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections prescribing rules
and regulations on the conduct of initiative or amendments to the Constitution; and

d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-037).

The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the
Commission on Elections, but is LIFTED as against private respondents.

Resolution on the matter of contempt is hereby reserved.

SO ORDERED
Republic of the Philippines The questions ask, to wit:
SUPREME COURT
Manila
(1) Do you want martial law to be continued?

EN BANC
(2) Whether or not you want martial law to be continued, do you approve the following amendments to
the Constitution? For the purpose of the second question, the referendum shall have the effect of a
G.R. No. L-44640 October 12, 1976 plebiscite within the contemplation of Section 2 of Article XVI of the Constitution.

PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner, PROPOSED AMENDMENTS:

vs.
HONORABLE COMMISSION ON ELECTIONS and HONORABLE NATIONAL TREASURER, respondents.
1. There shall be, in lieu of the interim National Assembly, an interim Batasang Pambansa. Members of
the interim Batasang Pambansa which shall not be more than 120, unless otherwise provided by law,
G.R. No. L-44684. October 12,1976 shall include the incumbent President of the Philippines, representatives elected from the different
regions of the nation, those who shall not be less than eighteen years of age elected by their respective
sectors, and those chosen by the incumbent President from the members of the Cabinet. Regional
VICENTE M. GUZMAN, petitioner,
representatives shall be apportioned among the regions in accordance with the number of their
vs.
respective inhabitants and on the basis of a uniform and progressive ratio while the sectors shall be
COMMISSION ELECTIONS, respondent.
determined by law. The number of representatives from each region or sector and the, manner of their
election shall be prescribed and regulated by law.
G.R. No. L-44714. October 12,1976
2. The interim Batasang Pambansa shall have the same powers and its members shall have the same
RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO SALAPANTAN, petitioners, functions, responsibilities, rights, privileges, and disqualifications as the interim National Assembly and
vs. the regular National Assembly and the members thereof. However, it shall not exercise the power
HONORABLE COMMISSION ON SELECTIONS and HONORABLE NATIONAL TREASURER, respondents. provided in Article VIII, Section 14(l) of the Constitution.

MARTIN, J,:
The capital question raised in these prohibition suits with preliminary injunction relates to the power of
the incumbent President of the Philippines to propose amendments to the present Constitution in the
absence of the interim National Assembly which has not been convened.
On September 2, 1976, President Ferdinand E. Marcos issued Presidential Decree No. 991 calling for a
national referendum on October 16, 1976 for the Citizens Assemblies ("barangays") to resolve, among
other things, the issues of martial law, the I . assembly, its replacement, the powers of such replacement,
the period of its existence, the length of the period for tile exercise by the President of his present
powers.1
Twenty days after or on September 22, 1976, the President issued another related decree, Presidential
Decree No. 1031, amending the previous Presidential Decree No. 991, by declaring the provisions of
presidential Decree No. 229 providing for the manner of voting and canvass of votes in "barangays"
(Citizens Assemblies) applicable to the national referendum-plebiscite of October 16, 1976. Quite
relevantly, Presidential Decree No. 1031 repealed Section 4, of Presidential Decree No. 991, the full text
of which (Section 4) is quoted in the footnote below. 2
On the same date of September 22, 1976, the President issued Presidential Decree No. 1033, stating the
questions to be submitted to the people in the referendum-plebiscite on October 16, 1976. The Decree
recites in its "whereas" clauses that the people's continued opposition to the convening of the National
Assembly evinces their desire to have such body abolished and replaced thru a constitutional
amendment, providing for a legislative body, which will be submitted directly to the people in the
referendum-plebiscite of October 16.
3. The incumbent President of the Philippines shall, within 30 days from the election and selection of the
members, convene the interim Batasang Pambansa and preside over its sessions until the Speaker shall
have been elected. The incumbent President of the Philippines shall be the Prime Minister and he shall
continue to exercise all his powers even after the interim Batasang Pambansa is organized and ready to
discharge its functions and likewise he shall continue to exercise his powers and prerogatives under the
nineteen hundred and thirty five. Constitution and the powers vested in the President and the Prime
Minister under this Constitution.
4. The President (Prime Minister) and his Cabinet shall exercise all the powers and functions, and
discharge the responsibilities of the regular President (Prime Minister) and his Cabinet, and shall be
subject only to such disqualifications as the President (Prime Minister) may prescribe. The President
(Prime Minister) if he so desires may appoint a Deputy Prime Minister or as many Deputy Prime
Ministers as he may deem necessary.
5. The incumbent President shall continue to exercise legislative powers until martial law shall have been
lifted.
6. Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a
threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular National
Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires
immediate action, he may, in order to meet the exigency, issue the necessary decrees, orders or letters
of instructions, which shall form part of the law of the land.
7. The barangays and sanggunians shall continue as presently constituted but their functions, powers,
and composition may be altered by law.
Referenda conducted thru the barangays and under the Supervision of the Commission on Elections may
be called at any time the government deems it necessary to ascertain the will of the people regarding
any important matter whether of national or local interest.
8. All provisions of this Constitution not inconsistent with any of these amendments shall continue in full
force and effect.
9. These amendments shall take effect after the incumbent President shall have proclaimed that they
have been ratified by I majority of the votes cast in the referendum-plebiscite."
The Commission on Elections was vested with the exclusive supervision and control of the October 1976
National Referendum-Plebiscite.
On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD, father and son, commenced L-
44640 for Prohibition with Preliminary Injunction seeking to enjoin the Commission on Elections from
holding and conducting the Referendum Plebiscite on October 16; to declare without force and effect
Presidential Decree Nos. 991 and 1033, insofar as they propose amendments to the Constitution, as well
as Presidential Decree No. 1031, insofar as it directs the Commission on Elections to supervise, control,
hold, and conduct the Referendum-Plebiscite scheduled on October 16, 1976.
Petitioners contend that under the 1935 and 1973 Constitutions there is no grant to the incumbent
President to exercise the constituent power to propose amendments to the new Constitution. As a
consequence, the Referendum-Plebiscite on October 16 has no constitutional or legal basis.
On October 5, 1976, the Solicitor General filed the comment for respondent Commission on Elections,
The Solicitor General principally maintains that petitioners have no standing to sue; the issue raised is
political in nature, beyond judicial cognizance of this Court; at this state of the transition period, only the
incumbent President has the authority to exercise constituent power; the referendum-plebiscite is a step
towards normalization.
On September 30, 1976, another action for Prohibition with Preliminary Injunction, docketed as L-44684,
was instituted by VICENTE M. GUZMAN, a delegate to the 1971 Constitutional Convention, asserting that
the power to propose amendments to, or revision of the Constitution during the transition period is
expressly conferred on the interim National Assembly under Section 16, Article XVII of the Constitution.3
Still another petition for Prohibition with Preliminary Injunction was filed on October 5, 1976 by RAUL M.
GONZALES, his son RAUL, JR., and ALFREDO SALAPANTAN, docketed as L- 44714, to restrain the
implementation of Presidential Decrees relative to the forthcoming Referendum-Plebiscite of October
16.
These last petitioners argue that even granting him legislative powers under Martial Law, the incumbent
President cannot act as a constituent assembly to propose amendments to the Constitution; a
referendum-plebiscite is untenable under the Constitutions of 1935 and 1973; the submission of the
proposed amendments in such a short period of time for deliberation renders the plebiscite a nullity; to
lift Martial Law, the President need not consult the people via referendum; and allowing 15-.year olds to
vote would amount to an amendment of the Constitution, which confines the right of suffrage to those
citizens of the Philippines 18 years of age and above.
We find the petitions in the three entitled cases to be devoid of merit.
I
Justiciability of question raised.
1. As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo C. Sanidad and Pablito V.
Sanidad) possess locus standi to challenge the constitutional premise of Presidential Decree Nos. 991,
1031, and 1033. It is now an ancient rule that the valid source of a stature Presidential Decrees are of
such nature-may be contested by one who will sustain a direct injuries as a in result of its enforcement.
At the instance of taxpayers, laws providing for the disbursement of public funds may be enjoined, upon
the theory that the expenditure of public funds by an officer of the State for the purpose of executing an
unconstitutional act constitutes a misapplication of such funds. 4 The breadth of Presidential Decree No.
991 carries all appropriation of Five Million Pesos for the effective implementation of its purposes. 5
Presidential Decree No. 1031 appropriates the sum of Eight Million Pesos to carry out its provisions. 6
The interest of the aforenamed petitioners as taxpayers in the lawful expenditure of these amounts of
public money sufficiently clothes them with that personality to litigate the validity of the Decrees
appropriating said funds. Moreover, as regards taxpayer's suits, this Court enjoys that open discretion to
entertain the same or not. 7 For the present case, We deem it sound to exercise that discretion
affirmatively so that the authority upon which the disputed Decrees are predicated may be inquired into.
2. The Solicitor General would consider the question at bar as a pure political one, lying outside the
domain of judicial review. We disagree. The amending process both as to proposal and ratification, raises
a judicial question. 8 This is especially true in cases where the power of the Presidency to initiate the of
normally exercised by the legislature, is seriously doubted. Under the terms of the 1973 Constitution, the
power to propose amendments o the constitution resides in the interim National Assembly in the period
of transition (See. 15, Transitory provisions). After that period, and the regular National Assembly in its
active session, the power to propose amendments becomes ipso facto the prerogative of the regular
National Assembly (Sec. 1, pars. 1 and 2 of Art. XVI, 1973 constitution). The normal course has not been
followed. Rather than calling the National Assembly to constitute itself into a constituent assembly the
incumbent President undertook the proposal of amendments and submitted the proposed amendments
thru Presidential Decree 1033 to the people in a Referendum-Plebiscite on October 16. Unavoidably, the
regularity regularity of the procedure for amendments, written in lambent words in the very Constitution
sought to be amended, raises a contestable issue. The implementing Presidential Decree Nos. 991, 1031,
and 1033, which commonly purport to have the force and effect of legislation are assailed as invalid, thus
the issue of the validity of said Decrees is plainly a justiciable one, within the competence of this Court to
pass upon. Section 2 (2), Article X of the new Constitution provides: "All cases involving the
constitutionality of a treaty, executive agreement, or law may shall be heard and decided by the
Supreme Court en banc and no treaty, executive agreement, or law may be declared unconstitutional
without the concurrence of at least ten Members. ..." The Supreme Court has the last word in the
construction not only of treaties and statutes, but also of the Constitution itself The amending, like all
other powers organized in the Constitution, is in form a delegated and hence a limited power, so that the
Supreme Court is vested with that authorities to determine whether that power has been discharged
within its limits.
Political questions are neatly associated with the wisdom, of the legality of a particular act. Where the
vortex of the controversy refers to the legality or validity of the contested act, that matter is definitely
justiciable or non-political. What is in the heels of the Court is not the wisdom of the act of the
incumbent President in proposing amendments to the Constitution, but his constitutional authority to
perform such act or to assume the power of a constituent assembly. Whether the amending process
confers on the President that power to propose amendments is therefore a downright justiciable
question. Should the contrary be found, the actuation of the President would merely be a brutum
fulmen. If the Constitution provides how it may be amended, the judiciary as the interpreter of that
Constitution, can declare whether the procedure followed or the authority assumed was valid or not. 10
We cannot accept the view of the Solicitor General, in pursuing his theory of non-justiciability, that the
question of the President's authority to propose amendments and the regularity of the procedure
adopted for submission of the proposal to the people ultimately lie in the judgment of the A clear
Descartes fallacy of vicious circle. Is it not that the people themselves, by their sovereign act, provided
for the authority and procedure for the amending process when they ratified the present Constitution in
1973? Whether, therefore, the constitutional provision has been followed or not is the proper subject of
inquiry, not by the people themselves of course who exercise no power of judicial but by the Supreme
Court in whom the people themselves vested that power, a power which includes the competence to
determine whether the constitutional norms for amendments have been observed or not. And, this
inquiry must be done a prior not a posterior i.e., before the submission to and ratification by the people.
Indeed, the precedents evolved by the Court or, prior constitutional cases underline the preference of
the Court's majority to treat such issue of Presidential role in the amending process as one of non-
political impression. In the Plebiscite Cases, 11 the contention of the Solicitor General that the issue on
the legality of Presidential Decree No. 73 "submitting to the Pilipino people (on January 15, 1973) for
ratification or rejection the Constitution of the Republic of the Philippines proposed by the 1971
Constitutional Convention and appropriating fund s therefore "is a political one, was rejected and the
Court unanimously considered the issue as justiciable in nature. Subsequently in the Ratification
Cases 12involving the issue of whether or not the validity of Presidential Proclamation No. 1102.
announcing the Ratification by the Filipino people of the constitution proposed by the 1971
Constitutional Convention," partakes of the nature of a political question, the affirmative stand of' the
Solicitor General was dismissed, the Court ruled that the question raised is justiciable. Chief Justice
Concepcion, expressing the majority view, said, Thus, in the aforementioned plebiscite cases, We
rejected the theory of the respondents therein that the question whether Presidential Decree No. 73
calling a plebiscite to be held on January 15, 1973, for the ratification or rejection of the proposed new
Constitution, was valid or not, was not a proper subject of judicial inquiry because, they claimed, it
partook of a political nature, and We unanimously declared that the issue was a justiciable one. With
Identical unanimity. We overruled the respondent's contention in the 1971 habeas corpus cases,
questioning Our authority to determine the constitutional sufficiency of the factual bases of the
Presidential proclamation suspending the privilege of the writ of habeas corpus on August 21, 1971,
despite the opposite view taken by this Court in Barcelon vs. Baker and Montenegro vs. Castaneda,
insofar as it adhered to the former case, which view We, accordingly, abandoned and refused to apply.
For the same reason, We did not apply and expressly modified, in Gonzales vs. Commission on Elections,
the political-question theory adopted in Mabanag vs. Lopez Vito." 13 The return to Barcelon vs. Baker and
Mabanag vs. Lopez Vito, urged by the Solicitor General, was decisively refused by the Court. Chief Justice
Concepcion continued: "The reasons adduced in support thereof are, however, substantially the same as
those given in support on the political question theory advanced in said habeas corpus and plebiscite
cases, which were carefully considered by this Court and found by it to be legally unsound and
constitutionally untenable. As a consequence. Our decisions in the aforementioned habeas corpus cases
partakes of the nature and effect of a stare decisis which gained added weight by its virtual reiteration."
II
The amending process as laid out
in the new Constitution.
1. Article XVI of the 1973 Constitution on Amendments ordains:
SECTION 1. (1) Any amendment to, or revision of, this Constitution may be
proposed by the National Assembly upon a vote of three-fourths of all its
Members, or by a constitutional convention. (2) The National Assembly may, by a
vote of two-thirds of all its Members, call a constitutional convention or, by a
majority vote of all its Members, submit the question of calling such a convention
to the electorate in an election.
SECTION 2. Any amendment to, or revision of, this Constitution shall be valid when
ratified by a majority of the votes cast in a plebiscite which shall be held not later
than three months after the approval of such amendment or revision.
In the present period of transition, the interim National Assembly instituted in the Transitory Provisions
is conferred with that amending power. Section 15 of the Transitory Provisions reads:
SECTION 15. The interim National Assembly, upon special call by the interim Prime
Minister, may, by a majority vote of all its Members, propose amendments to this
Constitution. Such amendments shall take effect when ratified in accordance with
Article Sixteen hereof.
There are, therefore, two periods contemplated in the constitutional life of the nation, i.e., period of
normalcy and period of transition. In times of normally, the amending process may be initiated by the
proposals of the (1) regular National Assembly upon a vote of three-fourths of all its members; or (2) by
a Constitutional Convention called by a vote of two-thirds of all the Members of the National Assembly.
However the calling of a Constitutional Convention may be submitted to the electorate in an election
voted upon by a majority vote of all the members of the National Assembly. In times of transition,
amendments may be proposed by a majority vote of all the Members of the National Assembly upon
special call by the interim Prime Minister,.
2. This Court in Aquino v. COMELEC," had already settled that the incumbent President is vested with
that prerogative of discretion as to when he shall initially convene the interim National Assembly.
Speaking for the majority opinion in that case, Justice Makasiar said: "The Constitutional Convention
intended to leave to the President the determination of the time when he shall initially convene the
interim National Assembly, consistent with the prevailing conditions of peace and order in the country."
Concurring, Justice Fernandez, himself a member of that Constitutional Convention, revealed: "(W)hen
the Delegates to the Constitutional Convention voted on the Transitory Provisions, they were aware of
the fact that under the same, the incumbent President was given the discretion as to when he could
convene the interim National Assembly; it was so stated plainly by the sponsor, Delegate Yaneza; as a
matter of fact, the proposal that it be convened 'immediately', made by Delegate Pimentel (V) was
rejected. The President's decision to defer the convening of the interim National Assembly soon found
support from the people themselves. In the plebiscite of January 10-15, 1973, at which the ratification of
the 1973 Constitution was submitted, the people voted against the convening of the interim National
Assembly. In the referendum of July 24, 1973, the Citizens Assemblies ("bagangays") reiterated their
sovereign will to withhold the convening of the interim National Assembly. Again, in the referendum of
February 27, 1975, the proposed question of whether the interim National Assembly shall be initially
convened was eliminated, because some of the members of Congress and delegates of the
Constitutional Convention, who were deemed automatically members of the I interim National
Assembly, were against its inclusion since in that referendum of January, 1973, the people had already
resolved against it.
3. In sensu strictiore, when the legislative arm of the state undertakes the proposals of amendment to a
Constitution, that body is not in the usual function of lawmaking. lt is not legislating when engaged in the
amending process.16 Rather, it is exercising a peculiar power bestowed upon it by the fundamental
charter itself. In the Philippines, that power is provided for in Article XVI of the 1973 Constitution (for the
regular National Assembly) or in Section 15 of the Transitory Provisions (for the National Assembly).
While ordinarily it is the business of the legislating body to legislate for the nation by virtue of
constitutional conferment amending of the Constitution is not legislative in character. In political science
a distinction is made between constitutional content of an organic character and that of a legislative
character'. The distinction, however, is one of policy, not of law. 17 Such being the case, approval of the
President of any proposed amendment is a misnomer 18 The prerogative of the President to approve or
disapprove applies only to the ordinary cases of legislation. The President has nothing to do with
proposition or adoption of amendments to the Constitution. 19
III
Concentration of Powers
in the President during
crisis government.
1. In general, the governmental powers in crisis government the Philippines is a crisis government today
are more or less concentrated in the President. 20 According to Rossiter, "(t)he concentration of
government power in a democracy faced by an emergency is a corrective to the crisis inefficiencies
inherent in the doctrine of the separation of powers. In most free states it has generally been regarded
as imperative that the total power of the government be parceled out among three mutually
independent branches executive, legislature, and judiciary. It is believed to be destructive of
constitutionalism if any one branch should exercise any two or more types of power, and certainly a total
disregard of the separation of powers is, as Madison wrote in the Federalist, No. 47, 'the very definition
of tyranny.' In normal times the separation of powers forms a distinct obstruction to arbitrary
governmental action. By this same token, in abnormal times it may form an insurmountable barrier to a
decisive emergency action in behalf of the state and its independent existence. There are moments in
the life of any government when all powers must work together in unanimity of purpose and action,
even if this means the temporary union of executive, legislative, and judicial power in the hands of one
man. The more complete the separation of powers in a constitutional system, the more difficult and yet
the more necessary will be their fusion in time of crisis. This is evident in a comparison of the crisis
potentialities of the cabinet and presidential systems of government. In the former the all-important
harmony of legislature and executive is taken for granted; in the latter it is neither guaranteed nor to be
to confidently expected. As a result, cabinet is more easily established and more trustworthy than
presidential dictatorship. The power of the state in crisis must not only be concentrated and expanded; it
must also be freed from the normal system of constitutional and legal limitations. 21 John Locke, on the
other hand, claims for the executive in its own right a broad discretion capable even of setting aside the
ordinary laws in the meeting of special exigencies for which the legislative power had not
provided. 22 The rationale behind such broad emergency powers of the Executive is the release of the
government from "the paralysis of constitutional restrains" so that the crisis may be ended and normal
times restored.
2. The presidential exercise of legislative powers in time of martial law is now a conceded valid at. That
sun clear authority of the President is saddled on Section 3 (pars. 1 and 2) of the Transitory Provisions,
thus: 23
The incumbent President of the Philippines shall initially convene the interim
National Assembly and shall preside over its sessions until the interim Speaker
shall have been elected. He shall continue to exercise his powers and prerogatives
under the nineteen hundred and thirty-five Constitution and the powers vested in
the President and the Prime Minister under this Constitution until the calls upon
the interim National Assembly to elect the interim President and the interim Prime
Minister, who shall then exercise their respective powers vested by this
Constitution.
All proclamations, orders, decrees, instructions, and acts promulgated, issued, or
done by the incumbent President shall be part of the law of the land, and shall
remain valid, binding, and effective even after lifting of martial law or the
ratification of this Constitution, unless modified, revoked, or superseded by
subsequent proclamations, orders, decrees, instructions, or other acts of the
incumbent President, or unless expressly and explicitly modified or repealed by
the regular National Assembly.
"It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention delegate, "that the
Constitutional Convention, while giving to the President the discretion when to call the interim National
Assembly to session, and knowing that it may not be convened soon, would create a vacuum in the
exercise of legislative powers. Otherwise, with no one to exercise the lawmaking powers, there would be
paralyzation of the entire governmental machinery."24 Paraphrasing Rossiter, this is an extremely
important factor in any constitutional dictatorship which extends over a period of time. The separation
of executive and legislature ordained in the Constitution presents a distinct obstruction to efficient crisis
government. The steady increase in executive power is not too much a cause for as the steady increase
in the magnitude and complexity of the problems the President has been called upon by the Filipino
people to solve in their behalf, which involve rebellion, subversion, secession, recession, inflation, and
economic crisis-a crisis greater than war. In short, while conventional constitutional law just confines the
President's power as Commander-in-Chief to the direction of the operation of the national forces, yet
the facts of our political, social, and economic disturbances had convincingly shown that in meeting the
same, indefinite power should be attributed to tile President to take emergency measures 25
IV
Authority of the incumbent
President t to propose
amendments to the Constitution.
1. As earlier pointed out, the power to legislate is constitutionally consigned to the interim National
Assembly during the transition period. However, the initial convening of that Assembly is a matter fully
addressed to the judgment of the incumbent President. And, in the exercise of that judgment, the
President opted to defer convening of that body in utter recognition of the people's preference.
Likewise, in the period of transition, the power to propose amendments to the Constitution lies in the
interim National Assembly upon special call by the President (See. 15 of the Transitory Provisions). Again,
harking to the dictates of the sovereign will, the President decided not to call the interim National
Assembly. Would it then be within the bounds of the Constitution and of law for the President to assume
that constituent power of the interim Assembly vis-a-vis his assumption of that body's legislative
functions? The answer is yes. If the President has been legitimately discharging the legislative functions
of the interim Assembly, there is no reason why he cannot validly discharge the function of that
Assembly to propose amendments to the Constitution, which is but adjunct, although peculiar, to its
gross legislative power. This, of course, is not to say that the President has converted his office into a
constituent assembly of that nature normally constituted by the legislature. Rather, with the interim
National Assembly not convened and only the Presidency and the Supreme Court in operation, the urges
of absolute necessity render it imperative upon the President to act as agent for and in behalf of the
people to propose amendments to the Constitution. Parenthetically, by its very constitution, the
Supreme Court possesses no capacity to propose amendments without constitutional infractions. For the
President to shy away from that actuality and decline to undertake the amending process would leave
the governmental machineries at a stalemate or create in the powers of the State a destructive vacuum,
thereby impeding the objective of a crisis government "to end the crisis and restore normal times." In
these parlous times, that Presidential initiative to reduce into concrete forms the constant voices of the
people reigns supreme. After all, constituent assemblies or constitutional conventions, like the President
now, are mere agents of the people .26
2. The President's action is not a unilateral move. As early as the referendums of January 1973 and
February 1975, the people had already rejected the calling of the interim National Assembly. The Lupong
Tagapagpaganap of the Katipunan ng mga Sanggunian, the Pambansang Katipunan ng mga Barangay,
and the Pambansang Katipunan ng mga Barangay, representing 42,000 barangays, about the same
number of Kabataang Barangay organizations, Sanggunians in 1,458 municipalities, 72 provinces, 3 sub-
provinces, and 60 cities had informed the President that the prevailing sentiment of the people is for the
abolition of the interim National Assembly. Other issues concerned the lifting of martial law and
amendments to the Constitution .27 The national organizations of Sangguniang Bayan presently
proposed to settle the issues of martial law, the interim Assembly, its replacement, the period of its
existence, the length of the period for the exercise by the President of its present powers in a
referendum to be held on October 16 . 28 The Batasang Bayan (legislative council) created under
Presidential Decree 995 of September 10, 1976, composed of 19 cabinet members, 9 officials with
cabinet rank, 91 members of the Lupong Tagapagpaganap (executive committee) of the Katipunan ng
mga Sangguniang Bayan voted in session to submit directly to the people in a plebiscite on October 16,
the previously quoted proposed amendments to the Constitution, including the issue of martial
law .29 Similarly, the "barangays" and the "sanggunians" endorsed to the President the submission of
the proposed amendments to the people on October 16. All the foregoing led the President to initiate
the proposal of amendments to the Constitution and the subsequent issuance of Presidential Decree No,
1033 on September 22, 1976 submitting the questions (proposed amendments) to the people in the
National Referendum-Plebiscite on October 16.
V consultative in character. It is simply a means of assessing public reaction to the given issues submitted
The People is Sovereign
1. Unlike in a federal state, the location of sovereignty in a unitary state is easily seen. In the Philippines,
a republican and unitary state, sovereignty "resides in the people and all government authority
emanates from them.30 In its fourth meaning, Savigny would treat people as "that particular organized
assembly of individuals in which, according to the Constitution, the highest power exists." 31 This is the
concept of popular sovereignty. It means that the constitutional legislator, namely the people, is
sovereign 32 In consequence, the people may thus write into the Constitution their convictions on any
subject they choose in the absence of express constitutional prohibition. 33 This is because, as Holmes
said, the Constitution "is an experiment, as all life is all experiment." 34 "The necessities of orderly
government," wrote Rottschaefer, "do not require that one generation should be permitted to
permanently fetter all future generations." A constitution is based, therefore, upon a self-limiting
decision of the people when they adopt it. 35
2. The October 16 referendum-plebiscite is a resounding call to the people to exercise their sovereign
power as constitutional legislator. The proposed amendments, as earlier discussed, proceed not from
the thinking of a single man. Rather, they are the collated thoughts of the sovereign will reduced only
into enabling forms by the authority who can presently exercise the powers of the government. In equal
vein, the submission of those proposed amendments and the question of martial law in a referendum-
plebiscite expresses but the option of the people themselves implemented only by the authority of the
President. Indeed, it may well be said that the amending process is a sovereign act, although the
authority to initiate the same and the procedure to be followed reside somehow in a particular body.
VI
Referendum-Plebiscite not
rendered nugatory by the
participation of the 15-year olds.
1. October 16 is in parts a referendum and a plebiscite. The question - (1) Do you want martial law to be
continued? - is a referendum question, wherein the 15-year olds may participate. This was prompted by
the desire of the Government to reach the larger mas of the people so that their true pulse may be felt
to guide the President in pursuing his program for a New Order. For the succeeding question on the
proposed amendments, only those of voting age of 18 years may participate. This is the plebiscite aspect,
as contemplated in Section 2, Article XVI of the new Constitution. 36 On this second question, it would
only be the votes of those 18 years old and above which will have valid bearing on the results. The fact
that the voting populace are simultaneously asked to answer the referendum question and the plebiscite
question does not infirm the referendum-plebiscite. There is nothing objectionable in consulting the
people on a given issue, which is of current one and submitting to them for ratification of proposed
constitutional amendments. The fear of commingled votes (15-year olds and 18-year olds above) is
readily dispelled by the provision of two ballot boxes for every barangay center, one containing the
ballots of voters fifteen years of age and under eighteen, and another containing the ballots of voters
eighteen years of age and above. 37 The ballots in the ballot box for voters fifteen years of age and under
eighteen shall be counted ahead of the ballots of voters eighteen years and above contained in another
ballot box. And, the results of the referendum-plebiscite shall be separately prepared for the age
groupings, i.e., ballots contained in each of the two boxes. 38
2. It is apt to distinguish here between a "referendum" and a "plebiscite." A "referendum" is merely
to the people foe their consideration, the calling of which is derived from or within the totality of the
executive power of the President. 39 It is participated in by all citizens from the age of fifteen, regardless
of whether or not they are illiterates, feeble-minded, or ex- convicts . 40 A "plebiscite," on the other hand,
involves the constituent act of those "citizens of the Philippines not otherwise disqualified by law, who
are eighteen years of age or over, and who shall have resided in the Philippines for at least one year and
in the place wherein they propose to vote for at least six months preceding the election Literacy,
property or any other substantive requirement is not imposed. It is generally associated with the
amending process of the Constitution, more particularly, the ratification aspect.
VII
1. There appeals to be no valid basis for the claim that the regime of martial law stultifies in main the
freedom to dissent. That speaks of a bygone fear. The martial law regime which, in the observation of
Justice Fernando, 41 is impressed with a mild character recorded no State imposition for a muffled voice.
To be sure, there are restraints of the individual liberty, but on certain grounds no total suppression of
that liberty is aimed at. The for the referendum-plebiscite on October 16 recognizes all the embracing
freedoms of expression and assembly The President himself had announced that he would not
countenance any suppression of dissenting views on the issues, as he is not interested in winning a "yes"
or "no" vote, but on the genuine sentiment of the people on the issues at hand. 42 Thus, the dissenters
soon found their way to the public forums, voicing out loud and clear their adverse views on the
proposed amendments and even (in the valid ratification of the 1973 Constitution, which is already a
settled matter. 43 Even government employees have been held by the Civil Service Commission free to
participate in public discussion and even campaign for their stand on the referendum-plebiscite issues. 44
VIII 3. Is the submission to the people of the proposed amendments within the time frame allowed therefor
a sufficient and proper submission?
Time for deliberation
Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices Enrique M. Fernando, Claudio
Teehankee, Antonio P. Barredo, Cecilia Munoz Palma, Hermogenes Concepcion Jr. and Ruperto G. Martin
is not short.
are of the view that the question posed is justiciable, while Associate Justices Felix V. Makasiar, Felix Q.
Antonio and Ramon C. Aquino hold the view that the question is political.
1. The period from September 21 to October 16 or a period of 3 weeks is not too short for free debates
or discussions on the referendum-plebiscite issues. The questions are not new. They are the issues of the
Upon the second issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino,
day. The people have been living with them since the proclamation of martial law four years ago. The
Concepcion Jr. and Martin voted in the affirmative, while Associate Justices Teehankee and Munoz
referendums of 1973 and 1975 carried the same issue of martial law. That notwithstanding, the
Palma voted in the negative. Associate Justice Fernando, conformably to his concurring and dissenting
contested brief period for discussion is not without counterparts in previous plebiscites for constitutional
opinion in Aquino vs. Enrile (59 SCRA 183), specifically dissents from the proposition that there is
amendments. Justice Makasiar, in the Referendum Case, recalls: "Under the old Society, 15 days were
concentration of powers in the Executive during periods of crisis, thus raising serious doubts as to the
allotted for the publication in three consecutive issues of the Official Gazette of the women's suffrage
power of the President to propose amendments.
amendment to the Constitution before the scheduled plebiscite on April 30, 1937 (Com. Act No. 34). The
constitutional amendment to append as ordinance the complicated Tydings-Kocialskowski was published
in only three consecutive issues of the Official Gazette for 10 days prior to the scheduled plebiscite (Com. Upon the third issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Aquino, Concepcion
Act 492). For the 1940 Constitutional amendments providing for the bicameral Congress, the reelection Jr. and Martin are of the view that there is a sufficient and proper submission of the proposed
of the President and Vice President, and the creation of the Commission on Elections, 20 days of amendments for ratification by the people. Associate Justices Barredo and Makasiar expressed the hope,
publication in three consecutive issues of the Official Gazette was fixed (Com Act No. 517). And the however that the period of time may be extended. Associate Justices Fernando, Makasiar and Antonio
Parity Amendment, an involved constitutional amendment affecting the economy as well as the are of the view that the question is political and therefore beyond the competence and cognizance of
independence of the Republic was publicized in three consecutive issues of the Official Gazette for 20 this Court, Associate Justice Fernando adheres to his concurrence in the opinion of Chief Justice
days prior to the plebiscite (Rep. Act No. 73)." 45 Concepcion in Gonzales vs. COMELEC (21 SCRA 774).Associate Justices Teehankee and MUNOZ Palma
hold that prescinding from the President's lack of authority to exercise the constituent power to propose
the amendments, etc., as above stated, there is no fair and proper submission with sufficient
2. It is worthy to note that Article XVI of the Constitution makes no provision as to the specific date when
information and time to assure intelligent consent or rejection under the standards set by this Court in
the plebiscite shall be held, but simply states that it "shall be held not later than three months after the
the controlling cases of Gonzales, supra, and Tolentino vs. COMELEC (41 SCRA 702).
approval of such amendment or revision." In Coleman v. Miller, 46 the United States Supreme court held
that this matter of submission involves "an appraisal of a great variety of relevant conditions, political,
social and economic," which "are essentially political and not justiciable." The constituent body or in the Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino, Concepcion Jr. and
instant cases, the President, may fix the time within which the people may act. This is because proposal Martin voted to dismiss the three petitions at bar. For reasons as expressed in his separate opinion,
and ratification are not treated as unrelated acts, but as succeeding steps in a single endeavor, the Associate Justice Fernando concurs in the result. Associate Justices Teehankee and Munoz Palma voted
natural inference being that they are not to be widely separated in time; second, it is only when there is to grant the petitions.
deemed to be a necessity therefor that amendments are to be proposed, the reasonable implication
being that when proposed, they are to be considered and disposed of presently, and third, ratification is
ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are hereby dismissed. This decision is
but the expression of the approbation of the people, hence, it must be done contemporaneously. 47 In
immediately executory.
the words of Jameson, "(a)n alteration of the Constitution proposed today has relation to the sentiment
and the felt needs of today, and that, if not ratified early while that sentiment may fairly be supposed to
exist. it ought to be regarded as waived, and not again to be voted upon, unless a second time proposed SO ORDERED.
by proper body

IN RESUME

The three issues are

1. Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and 1033 political or
justiciable?

2. During the present stage of the transition period, and under, the environmental circumstances now
obtaining, does the President possess power to propose amendments to the Constitution as well as set
up the required machinery and prescribe the procedure for the ratification of his proposals by the
people?
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 122156 February 3, 1997
MANILA PRINCE HOTEL petitioner,
vs.
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON
PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE COUNSEL, respondents.
BELLOSILLO, J.:
The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of rights, privileges, and
concessions covering the national economy and patrimony, the State shall give preference to qualified
Filipinos, 1 is in oked by petitioner in its bid to acquire 51% of the shares of the Manila Hotel Corporation
(MHC) which owns the historic Manila Hotel. Opposing, respondents maintain that the provision is not
self-executing but requires an implementing legislation for its enforcement. Corollarily, they ask whether
the 51% shares form part of the national economy and patrimony covered by the protective mantle of
the Constitution.
The controversy arose when respondent Government Service Insurance System (GSIS), pursuant to the
privatization program of the Philippine Government under Proclamation No. 50 dated 8 December 1986,
decided to sell through public bidding 30% to 51% of the issued and outstanding shares of respondent
MHC. The winning bidder, or the eventual "strategic partner," is to provide management expertise
and/or an international marketing/reservation system, and financial support to strengthen the
profitability and performance of the Manila Hotel. 2 In a close bidding held on 18 September 1995 only
two (2) bidders participated: petitioner Manila Prince Hotel Corporation, a Filipino corporation, which
offered to buy 51% of the MHC or 15,300,000 shares at P41.58 per share, and Renong Berhad, a
Malaysian firm, with ITT-Sheraton as its hotel operator, which bid for the same number of shares at
P44.00 per share, or P2.42 more than the bid of petitioner.
Pertinent provisions of the bidding rules prepared by respondent GSIS state
I. EXECUTION OF THE NECESSARY CONTRACTS WITH
GSIS/MHC
1. The Highest Bidder must comply with the conditions set forth below by October
23, 1995 (reset to November 3, 1995) or the Highest Bidder will lose the right to
purchase the Block of Shares and GSIS will instead offer the Block of Shares to the
other Qualified Bidders:
a. The Highest Bidder must negotiate and execute with the
GSIS/MHC the Management Contract, International
Marketing/Reservation System Contract or other type of
contract specified by the Highest Bidder in its strategic plan
for the Manila Hotel. . . .
b. The Highest Bidder must execute the Stock Purchase and
Sale Agreement with GSIS . . . .
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC
PARTNER
The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the
following conditions are met:
a. Execution of the necessary contracts with GSIS/MHC not
later than October 23, 1995 (reset to November 3, 1995);
and
b. Requisite approvals from the GSIS/MHC and COP
(Committee on Privatization)/OGCC (Office of the
Government Corporate Counsel) are obtained. 3
Pending the declaration of Renong Berhad as the winning bidder/strategic partner and the execution of
the necessary contracts, petitioner in a letter to respondent GSIS dated 28 September 1995 matched the
bid price of P44.00 per share tendered by Renong Berhad. 4 In a subsequent letter dated 10 October
1995 petitioner sent a manager's check issued by Philtrust Bank for Thirty-three Million Pesos
(P33.000.000.00) as Bid Security to match the bid of the Malaysian Group, Messrs. Renong Berhad . .
. 5 which respondent GSIS refused to accept.
On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded the tender of the
matching bid and that the sale of 51% of the MHC may be hastened by respondent GSIS and
consummated with Renong Berhad, petitioner came to this Court on prohibition and mandamus. On 18
October 1995 the Court issued a temporary restraining order enjoining respondents from perfecting and
consummating the sale to the Malaysian firm.
On 10 September 1996 the instant case was accepted by the Court En Banc after it was referred to it by
the First Division. The case was then set for oral arguments with former Chief Justice Enrique M.
Fernando and Fr. Joaquin G. Bernas, S.J., as amici curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution and submits that
the Manila Hotel has been identified with the Filipino nation and has practically become a historical
monument which reflects the vibrancy of Philippine heritage and culture. It is a proud legacy of an earlier
generation of Filipinos who believed in the nobility and sacredness of independence and its power and
capacity to release the full potential of the Filipino people. To all intents and purposes, it has become a
part of the national patrimony. 6 Petitioner also argues that since 51% of the shares of the MHC carries
with it the ownership of the business of the hotel which is owned by respondent GSIS, a government-
owned and controlled corporation, the hotel business of respondent GSIS being a part of the tourism
industry is unquestionably a part of the national economy. Thus, any transaction involving 51% of the
shares of stock of the MHC is clearly covered by the term national economy, to which Sec. 10, second
par., Art. XII, 1987 Constitution, applies. 7
It is also the thesis of petitioner that since Manila Hotel is part of the national patrimony and its business
also unquestionably part of the national economy petitioner should be preferred after it has matched
the bid offer of the Malaysian firm. For the bidding rules mandate that if for any reason, the Highest
Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified Bidders that
have validly submitted bids provided that these Qualified Bidders are willing to match the highest bid in
terms of price per share. 8
Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the 1987 Constitution is
merely a statement of principle and policy since it is not a self-executing provision and requires
implementing legislation(s) . . . Thus, for the said provision to Operate, there must be existing laws "to lay
down conditions under which business may be done." 9
Second, granting that this provision is self-executing, Manila Hotel does not fall under the term national
patrimony which only refers to lands of the public domain, waters, minerals, coal, petroleum and other
mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna and all
marine wealth in its territorial sea, and exclusive marine zone as cited in the first and second paragraphs
of Sec. 2, Art. XII, 1987 Constitution. According to respondents, while petitioner speaks of the guests who
have slept in the hotel and the events that have transpired therein which make the hotel historic, these
alone do not make the hotel fall under the patrimonyof the nation. What is more, the mandate of the
Constitution is addressed to the State, not to respondent GSIS which possesses a personality of its own
separate and distinct from the Philippines as a State.
Third, granting that the Manila Hotel forms part of the national patrimony, the constitutional provision
invoked is still inapplicable since what is being sold is only 51% of the outstanding shares of the
corporation, not the hotel building nor the land upon which the building stands. Certainly, 51% of the
equity of the MHC cannot be considered part of the national patrimony. Moreover, if the disposition of
the shares of the MHC is really contrary to the Constitution, petitioner should have questioned it right
from the beginning and not after it had lost in the bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules which provides that if for
any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other
Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are willing to
match the highest bid in terms of price per share, is misplaced. Respondents postulate that the privilege
of submitting a matching bid has not yet arisen since it only takes place if for any reason, the Highest
Bidder cannot be awarded the Block of Shares. Thus the submission by petitioner of a matching bid is
premature since Renong Berhad could still very well be awarded the block of shares and the condition
giving rise to the exercise of the privilege to submit a matching bid had not yet taken place.
Finally, the prayer for prohibition grounded on grave abuse of discretion should fail since respondent
GSIS did not exercise its discretion in a capricious, whimsical manner, and if ever it did abuse its
discretion it was not so patent and gross as to amount to an evasion of a positive duty or a virtual refusal
to perform a duty enjoined by law. Similarly, the petition for mandamus should fail as petitioner has no
clear legal right to what it demands and respondents do not have an imperative duty to perform the act
required of them by petitioner.
We now resolve. A constitution is a system of fundamental laws for the governance and administration
of a nation. It is supreme, imperious, absolute and unalterable except by the authority from which it
emanates. It has been defined as the fundamental and paramount law of the nation. 10 It prescribes the
permanent framework of a system of government, assigns to the different departments their respective
powers and duties, and establishes certain fixed principles on which government is founded. The
fundamental conception in other words is that it is a supreme law to which all other laws must conform
and in accordance with which all private rights must be determined and all public authority
administered.11 Under the doctrine of constitutional supremacy, if a law or contract violates any norm of
the constitution that law or contract whether promulgated by the legislative or by the executive branch
or entered into by private persons for private purposes is null and void and without any force and effect.
Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed
written in every statute and contract.
Admittedly, some constitutions are merely declarations of policies and principles. Their provisions
command the legislature to enact laws and carry out the purposes of the framers who merely establish
an outline of government providing for the different departments of the governmental machinery and
securing certain fundamental and inalienable rights of citizens. 12 A provision which lays down a general
principle, such as those found in Art. II of the 1987 Constitution, is usually not self-executing. But a
provision which is complete in itself and becomes operative without the aid of supplementary or
enabling legislation, or that which supplies sufficient rule by means of which the right it grants may be
enjoyed or protected, is self-executing. Thus a constitutional provision is self-executing if the nature and
extent of the right conferred and the liability imposed are fixed by the constitution itself, so that they can
be determined by an examination and construction of its terms, and there is no language indicating that
the subject is referred to the legislature for action. 13
As against constitutions of the past, modern constitutions have been generally drafted upon a different
principle and have often become in effect extensive codes of laws intended to operate directly upon the
people in a manner similar to that of statutory enactments, and the function of constitutional
conventions has evolved into one more like that of a legislative body. Hence, unless it is expressly
provided that a legislative act is necessary to enforce a constitutional mandate, the presumption now is
that all provisions of the constitution are self-executing If the constitutional provisions are treated as
requiring legislation instead of self-executing, the legislature would have the power to ignore and
practically nullify the mandate of the fundamental law. 14 This can be cataclysmic. That is why the
prevailing view is, as it has always been, that
. . . in case of doubt, the Constitution should be considered self-executing rather
than non-self-executing . . . . Unless the contrary is clearly intended, the provisions
of the Constitution should be considered self-executing, as a contrary rule would
give the legislature discretion to determine when, or whether, they shall be
effective. These provisions would be subordinated to the will of the lawmaking
body, which could make them entirely meaningless by simply refusing to pass the
needed implementing statute. 15
Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is clearly not self-
executing, as they quote from discussions on the floor of the 1986 Constitutional Commission
MR. RODRIGO. Madam President, I am asking this question
as the Chairman of the Committee on Style. If the wording of
"PREFERENCE" is given to QUALIFIED FILIPINOS," can it be
understood as a preference to qualified Filipinos vis-a-
vis Filipinos who are not qualified. So, why do we not make
it clear? To qualified Filipinos as against aliens?
THE PRESIDENT. What is the question of Commissioner
Rodrigo? Is it to remove the word "QUALIFIED?".
MR. RODRIGO. No, no, but say definitely "TO QUALIFIED
FILIPINOS" as against whom? As against aliens or over
aliens?
 MR. NOLLEDO. Madam President, I think that is understood.
We use the word "QUALIFIED" because the existing laws or
prospective laws will always lay down conditions under
which business may be done. For example, qualifications on
the setting up of other financial structures, et
cetera (emphasis supplied by respondents)
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO Yes, 16
Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as not to make it appear that it
is non-self-executing but simply for purposes of style. But, certainly, the legislature is not precluded from
enacting other further laws to enforce the constitutional provision so long as the contemplated statute
squares with the Constitution. Minor details may be left to the legislature without impairing the self-
executing nature of constitutional provisions.
In self-executing constitutional provisions, the legislature may still enact legislation to facilitate the
exercise of powers directly granted by the constitution, further the operation of such a provision,
prescribe a practice to be used for its enforcement, provide a convenient remedy for the protection of
the rights secured or the determination thereof, or place reasonable safeguards around the exercise of
the right. The mere fact that legislation may supplement and add to or prescribe a penalty for the
violation of a self-executing constitutional provision does not render such a provision ineffective in the
absence of such legislation. The omission from a constitution of any express provision for a remedy for
enforcing a right or liability is not necessarily an indication that it was not intended to be self-executing.
The rule is that a self-executing provision of the constitution does not necessarily exhaust legislative
power on the subject, but any legislation must be in harmony with the constitution, further the exercise
of constitutional right and make it more available. 17 Subsequent legislation however does not
necessarily mean that the subject constitutional provision is not, by itself, fully enforceable.
Respondents also argue that the non-self-executing nature of Sec. 10, second par., of Art. XII is implied
from the tenor of the first and third paragraphs of the same section which undoubtedly are not self-
executing. 18 The argument is flawed. If the first and third paragraphs are not self-executing because
Congress is still to enact measures to encourage the formation and operation of enterprises fully owned
by Filipinos, as in the first paragraph, and the State still needs legislation to regulate and exercise
authority over foreign investments within its national jurisdiction, as in the third paragraph, then
a fortiori, by the same logic, the second paragraph can only be self-executing as it does not by its
language require any legislation in order to give preference to qualified Filipinos in the grant of rights,
privileges and concessions covering the national economy and patrimony. A constitutional provision may
be self-executing in one part and non-self-executing in another. 19
Even the cases cited by respondents holding that certain constitutional provisions are merely statements
of principles and policies, which are basically not self-executing and only placed in the Constitution as
moral incentives to legislation, not as judicially enforceable rights are simply not in point. Basco
v. Philippine Amusements and Gaming Corporation 20 speaks of constitutional provisions on personal
dignity, 21 the sanctity of family life, 22 the vital role of the youth in nation-building 23 the promotion of
social justice, 24 and the values of education. 25Tolentino v. Secretary of Finance 26 refers to the
constitutional provisions on social justice and human rights 27 and on education. 28 Lastly, Kilosbayan,
Inc. v. Morato 29 cites provisions on the promotion of general welfare, 30 the sanctity of family life, 31 the
vital role of the youth in nation-building 32 and the promotion of total human liberation and
development. 33A reading of these provisions indeed clearly shows that they are not judicially
enforceable constitutional rights but merely guidelines for legislation. The very terms of the provisions
manifest that they are only principles upon which the legislations must be based. Res ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the of the 1987 Constitution is a mandatory, positive
command which is complete in itself and which needs no further guidelines or implementing laws or
rules for its enforcement. From its very words the provision does not require any legislation to put it in
operation. It is per se judicially enforceable When our Constitution mandates that [i]n the grant of rights,
privileges, and concessions covering national economy and patrimony, the State shall give preference to
qualified Filipinos, it means just that qualified Filipinos shall be preferred. And when our Constitution
declares that a right exists in certain specified circumstances an action may be maintained to enforce
such right notwithstanding the absence of any legislation on the subject; consequently, if there is no
statute especially enacted to enforce such constitutional right, such right enforces itself by its own
inherent potency and puissance, and from which all legislations must take their bearings. Where there is
a right there is a remedy. Ubi jus ibi remedium.
As regards our national patrimony, a member of the 1986 Constitutional Commission 34 explains
The patrimony of the Nation that should be conserved and developed refers not
only to out rich natural resources but also to the cultural heritage of out race. It
also refers to our intelligence in arts, sciences and letters. Therefore, we should
develop not only our lands, forests, mines and other natural resources but also the
mental ability or faculty of our people.
We agree. In its plain and ordinary meaning, the term patrimony pertains to heritage. 35 When the
Constitution speaks of national patrimony, it refers not only to the natural resources of the Philippines,
as the Constitution could have very well used the term natural resources, but also to the cultural
heritage of the Filipinos.
Manila Hotel has become a landmark a living testimonial of Philippine heritage. While it was
restrictively an American hotel when it first opened in 1912, it immediately evolved to be truly Filipino,
Formerly a concourse for the elite, it has since then become the venue of various significant events
which have shaped Philippine history. It was called the Cultural Center of the 1930's. It was the site of the
festivities during the inauguration of the Philippine Commonwealth. Dubbed as the Official Guest House
of the Philippine Government. it plays host to dignitaries and official visitors who are accorded the
traditional Philippine hospitality. 36
The history of the hotel has been chronicled in the book The Manila Hotel: The Heart and Memory of a
City. 37During World War II the hotel was converted by the Japanese Military Administration into a
military headquarters. When the American forces returned to recapture Manila the hotel was selected
by the Japanese together with Intramuros as the two (2) places fro their final stand. Thereafter, in the
1950's and 1960's, the hotel became the center of political activities, playing host to almost every
political convention. In 1970 the hotel reopened after a renovation and reaped numerous international
recognitions, an acknowledgment of the Filipino talent and ingenuity. In 1986 the hotel was the site of a
failed coup d' etatwhere an aspirant for vice-president was "proclaimed" President of the Philippine
Republic.
For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs and failures, loves
and frustrations of the Filipinos; its existence is impressed with public interest; its own historicity
associated with our struggle for sovereignty, independence and nationhood. Verily, Manila Hotel has
become part of our national economy and patrimony. For sure, 51% of the equity of the MHC comes
within the purview of the constitutional shelter for it comprises the majority and controlling stock, so
that anyone who acquires or owns the 51% will have actual control and management of the hotel. In this
instance, 51% of the MHC cannot be disassociated from the hotel and the land on which the hotel edifice
stands. Consequently, we cannot sustain respondents' claim that theFilipino First Policy provision is not
applicable since what is being sold is only 51% of the outstanding shares of the corporation, not the Hotel
building nor the land upon which the building stands. 38
The argument is pure sophistry. The term qualified Filipinos as used in Our Constitution also includes
corporations at least 60% of which is owned by Filipinos. This is very clear from the proceedings of the
1986 Constitutional Commission
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I would like to introduce an amendment to the
Nolledo amendment. And the amendment would consist in
substituting the words "QUALIFIED FILIPINOS" with the
following: "CITIZENS OF THE PHILIPPINES OR
CORPORATIONS OR ASSOCIATIONS WHOSE CAPITAL OR
CONTROLLING STOCK IS WHOLLY OWNED BY SUCH
CITIZENS.
xxx xxx xxx
MR. MONSOD. Madam President, apparently the proponent
is agreeable, but we have to raise a question. Suppose it is a
corporation that is 80-percent Filipino, do we not give it
preference?
MR. DAVIDE. The Nolledo amendment would refer to an
individual Filipino. What about a corporation wholly owned
by Filipino citizens?
MR. MONSOD. At least 60 percent, Madam President.
MR. DAVIDE. Is that the intention?
MR. MONSOD. Yes, because, in fact, we would be limiting it
if we say that the preference should only be 100-percent
Filipino.
MR: DAVIDE. I want to get that meaning clear because
"QUALIFIED FILIPINOS" may refer only to individuals and not
to juridical personalities or entities.
MR. MONSOD. We agree, Madam President. 39
xxx xxx xxx
MR. RODRIGO. Before we vote, may I request that the
amendment be read again.
MR. NOLLEDO. The amendment will read: "IN THE GRANT
OF RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE
NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS." And the word
"Filipinos" here, as intended by the proponents, will include
not only individual Filipinos but also Filipino-controlled
entities or entities fully-controlled by Filipinos. 40
The phrase preference to qualified Filipinos was explained thus
MR. FOZ. Madam President, I would like to request
Commissioner Nolledo to please restate his amendment so
that I can ask a question.
MR. NOLLEDO. "IN THE GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL ECONOMY AND
PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO
QUALIFIED FILIPINOS."
MR FOZ. In connection with that amendment, if a foreign
enterprise is qualified and a Filipino enterprise is also
qualified, will the Filipino enterprise still be given a
preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some aspects
than the Filipino enterprise, will the Filipino still be
preferred?
MR. NOLLEDO. The answer is "yes."
MR. FOZ. Thank you, 41
Expounding further on the Filipino First Policy provision Commissioner Nolledo continues
MR. NOLLEDO. Yes, Madam President. Instead of "MUST," it will be "SHALL THE
STATE SHALL GlVE PREFERENCE TO QUALIFIED FILIPINOS. This embodies the so-
called "Filipino First" policy. That means that Filipinos should be given preference
in the grant of concessions, privileges and rights covering the national
patrimony. 42
The exchange of views in the sessions of the Constitutional Commission regarding the subject provision
was still further clarified by Commissioner Nolledo 43
Paragraph 2 of Section 10 explicitly mandates the "Pro-Filipino" bias in all
economic concerns. It is better known as the FILIPINO FIRST Policy . . . This
provision was never found in previous Constitutions . . . .
 The term "qualified Filipinos" simply means that preference shall be given to those
citizens who can make a viable contribution to the common good, because of
credible competence and efficiency. It certainly does NOT mandate the pampering
and preferential treatment to Filipino citizens or organizations that are
incompetent or inefficient, since such an indiscriminate preference would be
counter productive and inimical to the common good.
In the granting of economic rights, privileges, and concessions, when a choice has
to be made between a "qualified foreigner" end a "qualified Filipino," the latter
shall be chosen over the former."
Lastly, the word qualified is also determinable. Petitioner was so considered by respondent GSIS and
selected as one of the qualified bidders. It was pre-qualified by respondent GSIS in accordance with its
own guidelines so that the sole inference here is that petitioner has been found to be possessed of
proven management expertise in the hotel industry, or it has significant equity ownership in another
hotel company, or it has an overall management and marketing proficiency to successfully operate the
Manila Hotel. 44
The penchant to try to whittle away the mandate of the Constitution by arguing that the subject
provision is not self-executory and requires implementing legislation is quite disturbing. The attempt to
violate a clear constitutional provision by the government itself is only too distressing. To adopt
such a line of reasoning is to renounce the duty to ensure faithfulness to the Constitution. For, even
some of the provisions of the Constitution which evidently need implementing legislation have juridical
life of their own and can be the source of a judicial remedy. We cannot simply afford the government a
defense that arises out of the failure to enact further enabling, implementing or guiding legislation. In
fine, the discourse of Fr. Joaquin G. Bernas, S.J., on constitutional government is apt
The executive department has a constitutional duty to implement laws, including
the Constitution, even before Congress acts provided that there are
discoverable legal standards for executive action. When the executive acts, it must
be guided by its own understanding of the constitutional command and of
applicable laws. The responsibility for reading and understanding the Constitution
and the laws is not the sole prerogative of Congress. If it were, the executive
would have to ask Congress, or perhaps the Court, for an interpretation every time
the executive is confronted by a constitutional command. That is not how
constitutional government operates. 45
Respondents further argue that the constitutional provision is addressed to the State, not to respondent
GSIS which by itself possesses a separate and distinct personality. This argument again is at best
specious. It is undisputed that the sale of 51% of the MHC could only be carried out with the prior
approval of the State acting through respondent Committee on Privatization. As correctly pointed out by
Fr. Joaquin G. Bernas, S.J., this fact alone makes the sale of the assets of respondents GSIS and MHC a
"state action." In constitutional jurisprudence, the acts of persons distinct from the government are
considered "state action" covered by the Constitution (1) when the activity it engages in is a "public
function;" (2) when the government is so significantly involved with the private actor as to make the
government responsible for his action; and, (3) when the government has approved or authorized the
action. It is evident that the act of respondent GSIS in selling 51% of its share in respondent MHC comes
under the second and third categories of "state action." Without doubt therefore the transaction.
although entered into by respondent GSIS, is in fact a transaction of the State and therefore subject to
the constitutional command. 46
When the Constitution addresses the State it refers not only to the people but also to the government as
elements of the State. After all, government is composed of three (3) divisions of power legislative,
executive and judicial. Accordingly, a constitutional mandate directed to the State is correspondingly
directed to the three(3) branches of government. It is undeniable that in this case the subject
constitutional injunction is addressed among others to the Executive Department and respondent GSIS, a
government instrumentality deriving its authority from the State.
It should be stressed that while the Malaysian firm offered the higher bid it is not yet the winning bidder.
The bidding rules expressly provide that the highest bidder shall only be declared the winning bidder
after it has negotiated and executed the necessary contracts, and secured the requisite approvals. Since
the "Filipino First Policy provision of the Constitution bestows preference on qualified Filipinos the mere
tending of the highest bid is not an assurance that the highest bidder will be declared the winning
bidder. Resultantly, respondents are not bound to make the award yet, nor are they under obligation to
enter into one with the highest bidder. For in choosing the awardee respondents are mandated to abide
by the dictates of the 1987 Constitution the provisions of which are presumed to be known to all the
bidders and other interested parties.
Adhering to the doctrine of constitutional supremacy, the subject constitutional provision is, as it should
be, impliedly written in the bidding rules issued by respondent GSIS, lest the bidding rules be nullified for
being violative of the Constitution. It is a basic principle in constitutional law that all laws and contracts
must conform with the fundamental law of the land. Those which violate the Constitution lose their
reason for being.
Paragraph V. J. 1 of the bidding rules provides that [if] for any reason the Highest Bidder cannot be
awarded the Block of Shares, GSIS may offer this to other Qualified Bidders that have validly submitted
bids provided that these Qualified Bidders are willing to match the highest bid in terms of price per
share. 47 Certainly, the constitutional mandate itself is reason enough not to award the block of shares
immediately to the foreign bidder notwithstanding its submission of a higher, or even the highest, bid. In
fact, we cannot conceive of a stronger reason than the constitutional injunction itself.
In the instant case, where a foreign firm submits the highest bid in a public bidding concerning the grant
of rights, privileges and concessions covering the national economy and patrimony, thereby exceeding
the bid of a Filipino, there is no question that the Filipino will have to be allowed to match the bid of the
foreign entity. And if the Filipino matches the bid of a foreign firm the award should go to the Filipino. It
must be so if we are to give life and meaning to the Filipino First Policy provision of the 1987
Constitution. For, while this may neither be expressly stated nor contemplated in the bidding rules, the
constitutional fiat is, omnipresent to be simply disregarded. To ignore it would be to sanction a perilous
skirting of the basic law.
This Court does not discount the apprehension that this policy may discourage foreign investors. But the
Constitution and laws of the Philippines are understood to be always open to public scrutiny. These are
given factors which investors must consider when venturing into business in a foreign jurisdiction. Any
person therefore desiring to do business in the Philippines or with any of its agencies or instrumentalities
is presumed to know his rights and obligations under the Constitution and the laws of the forum.
The argument of respondents that petitioner is now estopped from questioning the sale to Renong
Berhad since petitioner was well aware from the beginning that a foreigner could participate in the
bidding is meritless. Undoubtedly, Filipinos and foreigners alike were invited to the bidding. But
foreigners may be awarded the sale only if no Filipino qualifies, or if the qualified Filipino fails to match
the highest bid tendered by the foreign entity. In the case before us, while petitioner was already
preferred at the inception of the bidding because of the constitutional mandate, petitioner had not yet
matched the bid offered by Renong Berhad. Thus it did not have the right or personality then to compel
respondent GSIS to accept its earlier bid. Rightly, only after it had matched the bid of the foreign firm
and the apparent disregard by respondent GSIS of petitioner's matching bid did the latter have a cause of
action.
Besides, there is no time frame for invoking the constitutional safeguard unless perhaps the award has
been finally made. To insist on selling the Manila Hotel to foreigners when there is a Filipino group
willing to match the bid of the foreign group is to insist that government be treated as any other
ordinary market player, and bound by its mistakes or gross errors of judgment, regardless of the
consequences to the Filipino people. The miscomprehension of the Constitution is regrettable. Thus we
would rather remedy the indiscretion while there is still an opportunity to do so than let the government
develop the habit of forgetting that the Constitution lays down the basic conditions and parameters for
its actions.
Since petitioner has already matched the bid price tendered by Renong Berhad pursuant to the bidding
rules, respondent GSIS is left with no alternative but to award to petitioner the block of shares of MHC
and to execute the necessary agreements and documents to effect the sale in accordance not only with
the bidding guidelines and procedures but with the Constitution as well. The refusal of respondent GSIS
to execute the corresponding documents with petitioner as provided in the bidding rules after the latter
has matched the bid of the Malaysian firm clearly constitutes grave abuse of discretion.
The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987 Constitution not
merely to be used as a guideline for future legislation but primarily to be enforced; so must it be
enforced. This Court as the ultimate guardian of the Constitution will never shun, under any reasonable
circumstance, the duty of upholding the majesty of the Constitution which it is tasked to defend. It is
worth emphasizing that it is not the intention of this Court to impede and diminish, much less
undermine, the influx of foreign investments. Far from it, the Court encourages and welcomes more
business opportunities but avowedly sanctions the preference for Filipinos whenever such preference is
ordained by the Constitution. The position of the Court on this matter could have not been more
appropriately articulated by Chief Justice Narvasa
As scrupulously as it has tried to observe that it is not its function to substitute its
judgment for that of the legislature or the executive about the wisdom and
feasibility of legislation economic in nature, the Supreme Court has not been
spared criticism for decisions perceived as obstacles to economic progress and
development . . . in connection with a temporary injunction issued by the Court's
First Division against the sale of the Manila Hotel to a Malaysian Firm and its
partner, certain statements were published in a major daily to the effect that
injunction "again demonstrates that the Philippine legal system can be a major
obstacle to doing business here.
Let it be stated for the record once again that while it is no business of the Court to
intervene in contracts of the kind referred to or set itself up as the judge of
whether they are viable or attainable, it is its bounden duty to make sure that they
do not violate the Constitution or the laws, or are not adopted or implemented
with grave abuse of discretion amounting to lack or excess of jurisdiction. It will
never shirk that duty, no matter how buffeted by winds of unfair and ill-informed
criticism. 48
Privatization of a business asset for purposes of enhancing its business viability and preventing further
losses, regardless of the character of the asset, should not take precedence over non-material values. A
commercial, nay even a budgetary, objective should not be pursued at the expense of national pride and
dignity. For the Constitution enshrines higher and nobler non-material values. Indeed, the Court will
always defer to the Constitution in the proper governance of a free society; after all, there is nothing so
sacrosanct in any economic policy as to draw itself beyond judicial review when the Constitution is
involved. 49
Nationalism is inherent, in the very concept of the Philippines being a democratic and republican state,
with sovereignty residing in the Filipino people and from whom all government authority emanates. In
nationalism, the happiness and welfare of the people must be the goal. The nation-state can have no
higher purpose. Any interpretation of any constitutional provision must adhere to such basic concept.
Protection of foreign investments, while laudible, is merely a policy. It cannot override the demands of
nationalism. 50
The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to be sold to the
highest bidder solely for the sake of privatization. We are not talking about an ordinary piece of property
in a commercial district. We are talking about a historic relic that has hosted many of the most important
events in the short history of the Philippines as a nation. We are talking about a hotel where heads of
states would prefer to be housed as a strong manifestation of their desire to cloak the dignity of the
highest state function to their official visits to the Philippines. Thus the Manila Hotel has played and
continues to play a significant role as an authentic repository of twentieth century Philippine history and
culture. In this sense, it has become truly a reflection of the Filipino soul a place with a history of
grandeur; a most historical setting that has played a part in the shaping of a country. 51
This Court cannot extract rhyme nor reason from the determined efforts of respondents to sell the
historical landmark this Grand Old Dame of hotels in Asia to a total stranger. For, indeed, the
conveyance of this epic exponent of the Filipino psyche to alien hands cannot be less than
mephistophelian for it is, in whatever manner viewed, a veritable alienation of a nation's soul for some
pieces of foreign silver. And so we ask: What advantage, which cannot be equally drawn from a qualified
Filipino, can be gained by the Filipinos Manila Hotel and all that it stands for is sold to a non-
Filipino? How much of national pride will vanish if the nation's cultural heritage is entrusted to a foreign
entity? On the other hand, how much dignity will be preserved and realized if the national patrimony is
safekept in the hands of a qualified, zealous and well-meaning Filipino? This is the plain and simple
meaning of the Filipino First Policy provision of the Philippine Constitution. And this Court, heeding the
clarion call of the Constitution and accepting the duty of being the elderly watchman of the nation, will
continue to respect and protect the sanctity of the Constitution.
WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION,
COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE COUNSEL are directed
to CEASE and DESIST from selling 51% of the shares of the Manila Hotel Corporation to RENONG
BERHAD, and to ACCEPT the matching bid of petitioner MANILA PRINCE HOTEL CORPORATION to
purchase the subject 51% of the shares of the Manila Hotel Corporation at P44.00 per share and
thereafter to execute the necessary clearances and to do such other acts and deeds as may be necessary
for purpose.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R No. 187167 August 16, 2011
PROF. MERLIN M. MAGALLONA, AKBAYAN PARTY-LIST REP. RISA HONTIVEROS, PROF. HARRY C.
ROQUE, JR., AND UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW STUDENTS, ALITHEA BARBARA
ACAS, VOLTAIRE ALFERES, CZARINA MAY ALTEZ, FRANCIS ALVIN ASILO, SHERYL BALOT, RUBY AMOR
BARRACA, JOSE JAVIER BAUTISTA, ROMINA BERNARDO, VALERIE PAGASA BUENAVENTURA, EDAN
MARRI CAETE, VANN ALLEN DELA CRUZ, RENE DELORINO, PAULYN MAY DUMAN, SHARON ESCOTO,
RODRIGO FAJARDO III, GIRLIE FERRER, RAOULLE OSEN FERRER, CARLA REGINA GREPO, ANNA MARIE
CECILIA GO, IRISH KAY KALAW, MARY ANN JOY LEE, MARIA LUISA MANALAYSAY, MIGUEL RAFAEL
MUSNGI, MICHAEL OCAMPO, JAKLYN HANNA PINEDA, WILLIAM RAGAMAT, MARICAR RAMOS, ENRIK
FORT REVILLAS, JAMES MARK TERRY RIDON, JOHANN FRANTZ RIVERA IV, CHRISTIAN RIVERO, DIANNE
MARIE ROA, NICHOLAS SANTIZO, MELISSA CHRISTINA SANTOS, CRISTINE MAE TABING, VANESSA
ANNE TORNO, MARIA ESTER VANGUARDIA, and MARCELINO VELOSO III, Petitioners,
vs.
HON. EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, HON. ALBERTO ROMULO, IN HIS
CAPACITY AS SECRETARY OF THE DEPARTMENT OF FOREIGN AFFAIRS, HON. ROLANDO ANDAYA, IN HIS
CAPACITY AS SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, HON. DIONY
VENTURA, IN HIS CAPACITY AS ADMINISTRATOR OF THE NATIONAL MAPPING & RESOURCE
INFORMATION AUTHORITY, and HON. HILARIO DAVIDE, JR., IN HIS CAPACITY AS REPRESENTATIVE OF
THE PERMANENT MISSION OF THE REPUBLIC OF THE PHILIPPINES TO THE UNITED
NATIONS,Respondents.
DECISION
CARPIO, J.:
The Case
This original action for the writs of certiorari and prohibition assails the constitutionality of Republic Act
No. 95221(RA 9522) adjusting the countrys archipelagic baselines and classifying the baseline regime of
nearby territories.
The Antecedents
In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating the maritime baselines of the
Philippines as an archipelagic State.3 This law followed the framing of the Convention on the Territorial
Sea and the Contiguous Zone in 1958 (UNCLOS I),4 codifying, among others, the sovereign right of States
parties over their "territorial sea," the breadth of which, however, was left undetermined. Attempts to
fill this void during the second round of negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus,
domestically, RA 3046 remained unchanged for nearly five decades, save for legislation passed in 1968
(Republic Act No. 5446 [RA 5446]) correcting typographical errors and reserving the drawing of baselines
around Sabah in North Borneo.
In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now under scrutiny. The
change was prompted by the need to make RA 3046 compliant with the terms of the United Nations
Convention on the Law of the Sea (UNCLOS III),5 which the Philippines ratified on 27 February
1984.6 Among others, UNCLOS III prescribes the water-land ratio, length, and contour of baselines of
archipelagic States like the Philippines7 and sets the deadline for the filing of application for the extended
continental shelf.8 Complying with these requirements, RA 9522 shortened one baseline, optimized the
location of some basepoints around the Philippine archipelago and classified adjacent territories,
namely, the Kalayaan Island Group (KIG) and the Scarborough Shoal, as "regimes of islands" whose
islands generate their own applicable maritime zones.
Petitioners, professors of law, law students and a legislator, in their respective capacities as "citizens,
taxpayers or x x x legislators,"9 as the case may be, assail the constitutionality of RA 9522 on two
principal grounds, namely: (1) RA 9522 reduces Philippine maritime territory, and logically, the reach of
the Philippine states sovereign power, in violation of Article 1 of the 1987 Constitution, 10 embodying the
terms of the Treaty of Paris11 and ancillary treaties,12 and (2) RA 9522 opens the countrys waters
landward of the baselines to maritime passage by all vessels and aircrafts, undermining Philippine
sovereignty and national security, contravening the countrys nuclear-free policy, and damaging marine
resources, in violation of relevant constitutional provisions.13
In addition, petitioners contend that RA 9522s treatment of the KIG as "regime of islands" not only
results in the loss of a large maritime area but also prejudices the livelihood of subsistence
fishermen.14 To buttress their argument of territorial diminution, petitioners facially attack RA 9522 for
what it excluded and included its failure to reference either the Treaty of Paris or Sabah and its use of
UNCLOS IIIs framework of regime of islands to determine the maritime zones of the KIG and the
Scarborough Shoal.
Commenting on the petition, respondent officials raised threshold issues questioning (1) the petitions
compliance with the case or controversy requirement for judicial review grounded on petitioners
alleged lack of locus standiand (2) the propriety of the writs of certiorari and prohibition to assail the
constitutionality of RA 9522. On the merits, respondents defended RA 9522 as the countrys compliance
with the terms of UNCLOS III, preserving Philippine territory over the KIG or Scarborough Shoal.
Respondents add that RA 9522 does not undermine the countrys security, environment and economic
interests or relinquish the Philippines claim over Sabah.
Respondents also question the normative force, under international law, of petitioners assertion that
what Spain ceded to the United States under the Treaty of Paris were the islands and all the
waters found within the boundaries of the rectangular area drawn under the Treaty of Paris.
We left unacted petitioners prayer for an injunctive writ.
The Issues
The petition raises the following issues:
1. Preliminarily
1. Whether petitioners possess locus standi to bring this suit; and
2. Whether the writs of certiorari and prohibition are the proper remedies to assail
the constitutionality of RA 9522.
 2. On the merits, whether RA 9522 is unconstitutional. the time of the Treaty of Paris, that Spain supposedly ceded to the United States. Petitioners argue that
from the Treaty of Paris technical description, Philippine sovereignty over territorial waters extends
hundreds of nautical miles around the Philippine archipelago, embracing the rectangular area delineated
The Ruling of the Court
in the Treaty of Paris.22

On the threshold issues, we hold that (1) petitioners possess locus standi to bring this suit as citizens and
Petitioners theory fails to persuade us.
(2) the writs of certiorari and prohibition are proper remedies to test the constitutionality of RA 9522. On
the merits, we find no basis to declare RA 9522 unconstitutional.
UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral treaty
regulating, among others, sea-use rights over maritime zones (i.e., the territorial waters [12 nautical
On the Threshold Issues
miles from the baselines], contiguous zone [24 nautical miles from the baselines], exclusive economic
Petitioners Possess Locus
zone [200 nautical miles from the baselines]), and continental shelves that UNCLOS III delimits.23 UNCLOS
Standi as Citizens
III was the culmination of decades-long negotiations among United Nations members to codify norms
regulating the conduct of States in the worlds oceans and submarine areas, recognizing coastal and
Petitioners themselves undermine their assertion of locus standi as legislators and taxpayers because the archipelagic States graduated authority over a limited span of waters and submarine lands along their
petition alleges neither infringement of legislative prerogative15 nor misuse of public funds,16 occasioned coasts.
by the passage and implementation of RA 9522. Nonetheless, we recognize petitioners locus standi as
citizens with constitutionally sufficient interest in the resolution of the merits of the case which
On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States parties to mark-out
undoubtedly raises issues of national significance necessitating urgent resolution. Indeed, owing to the
specific basepoints along their coasts from which baselines are drawn, either straight or contoured, to
peculiar nature of RA 9522, it is understandably difficult to find other litigants possessing "a more direct
serve as geographic starting points to measure the breadth of the maritime zones and continental shelf.
and specific interest" to bring the suit, thus satisfying one of the requirements for granting citizenship
Article 48 of UNCLOS III on archipelagic States like ours could not be any clearer:
standing.17

Article 48. Measurement of the breadth of the territorial sea, the contiguous zone, the exclusive economic
The Writs of Certiorari and Prohibition
zone and the continental shelf. The breadth of the territorial sea, the contiguous zone, the exclusive
Are Proper Remedies to Test
economic zone and the continental shelf shall be measured from archipelagic baselines drawn in
the Constitutionality of Statutes
accordance with article 47. (Emphasis supplied)

In praying for the dismissal of the petition on preliminary grounds, respondents seek a strict observance
Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit with
of the offices of the writs of certiorari and prohibition, noting that the writs cannot issue absent any
precision the extent of their maritime zones and continental shelves. In turn, this gives notice to the rest
showing of grave abuse of discretion in the exercise of judicial, quasi-judicial or ministerial powers on the
of the international community of the scope of the maritime space and submarine areas within which
part of respondents and resulting prejudice on the part of petitioners.18
States parties exercise treaty-based rights, namely, the exercise of sovereignty over territorial waters
(Article 2), the jurisdiction to enforce customs, fiscal, immigration, and sanitation laws in the contiguous
Respondents submission holds true in ordinary civil proceedings. When this Court exercises its zone (Article 33), and the right to exploit the living and non-living resources in the exclusive economic
constitutional power of judicial review, however, we have, by tradition, viewed the writs of certiorari and zone (Article 56) and continental shelf (Article 77).
prohibition as proper remedial vehicles to test the constitutionality of statutes,19 and indeed, of acts of
other branches of government.20Issues of constitutional import are sometimes crafted out of statutes
Even under petitioners theory that the Philippine territory embraces the islands and all the
which, while having no bearing on the personal interests of the petitioners, carry such relevance in the
waters within the rectangular area delimited in the Treaty of Paris, the baselines of the Philippines would
life of this nation that the Court inevitably finds itself constrained to take cognizance of the case and pass
still have to be drawn in accordance with RA 9522 because this is the only way to draw the baselines in
upon the issues raised, non-compliance with the letter of procedural rules notwithstanding. The statute
conformity with UNCLOS III. The baselines cannot be drawn from the boundaries or other portions of the
sought to be reviewed here is one such law.
rectangular area delineated in the Treaty of Paris, but from the "outermost islands and drying reefs of
the archipelago."24
RA 9522 is Not Unconstitutional
RA 9522 is a Statutory Tool
UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as petitioners
to Demarcate the Countrys
claim, diminution of territory. Under traditional international law typology, States acquire (or conversely,
Maritime Zones and Continental
lose) territory through occupation, accretion, cession and prescription,25 not by executing multilateral
Shelf Under UNCLOS III, not to
treaties on the regulations of sea-use rights or enacting statutes to comply with the treatys terms to
Delineate Philippine Territory
delimit maritime zones and continental shelves. Territorial claims to land features are outside UNCLOS
III, and are instead governed by the rules on general international law.26
Petitioners submit that RA 9522 "dismembers a large portion of the national territory"21 because it
discards the pre-UNCLOS III demarcation of Philippine territory under the Treaty of Paris and related
RA 9522s Use of the Framework
treaties, successively encoded in the definition of national territory under the 1935, 1973 and 1987
of Regime of Islands to Determine the
Constitutions. Petitioners theorize that this constitutional definition trumps any treaty or statutory
Maritime Zones of the KIG and the
provision denying the Philippines sovereign control over waters, beyond the territorial sea recognized at
Scarborough Shoal, not Inconsistent SEC. 2. The baselines in the following areas over which the Philippines likewise exercises sovereignty
with the Philippines Claim of Sovereignty and jurisdiction shall be determined as "Regime of Islands" under the Republic of the Philippines
Over these Areas consistent with Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS):

Petitioners next submit that RA 9522s use of UNCLOS IIIs regime of islands framework to draw the
baselines, and to measure the breadth of the applicable maritime zones of the KIG, "weakens our
territorial claim" over that area.27 Petitioners add that the KIGs (and Scarborough Shoals) exclusion
from the Philippine archipelagic baselines results in the loss of "about 15,000 square nautical miles of
territorial waters," prejudicing the livelihood of subsistence fishermen.28 A comparison of the
configuration of the baselines drawn under RA 3046 and RA 9522 and the extent of maritime space
encompassed by each law, coupled with a reading of the text of RA 9522 and its congressional
deliberations, vis--vis the Philippines obligations under UNCLOS III, belie this view.1avvphi1
The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522 merely
followed the basepoints mapped by RA 3046, save for at least nine basepoints that RA 9522 skipped to
optimize the location of basepoints and adjust the length of one baseline (and thus comply with UNCLOS
IIIs limitation on the maximum length of baselines). Under RA 3046, as under RA 9522, the KIG and the
Scarborough Shoal lie outside of the baselines drawn around the Philippine archipelago. This undeniable
cartographic fact takes the wind out of petitioners argument branding RA 9522 as a statutory
renunciation of the Philippines claim over the KIG, assuming that baselines are relevant for this purpose.
Petitioners assertion of loss of "about 15,000 square nautical miles of territorial waters" under RA 9522
is similarly unfounded both in fact and law. On the contrary, RA 9522, by optimizing the location of
basepoints, increased the Philippines total maritime space (covering its internal waters, territorial sea
and exclusive economic zone) by 145,216 square nautical miles, as shown in the table below:29
a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and
b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)
Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine
archipelago, adverse legal effects would have ensued. The Philippines would have committed a breach of
two provisions of UNCLOS III. First, Article 47 (3) of UNCLOS III requires that "[t]he drawing of such
baselines shall not depart to any appreciable extent from the general configuration of the archipelago."
Second, Article 47 (2) of UNCLOS III requires that "the length of the baselines shall not exceed 100
nautical miles," save for three per cent (3%) of the total number of baselines which can reach up to 125
nautical miles.31
Although the Philippines has consistently claimed sovereignty over the KIG32 and the Scarborough Shoal
for several decades, these outlying areas are located at an appreciable distance from the nearest
shoreline of the Philippine archipelago,33 such that any straight baseline loped around them from the
nearest basepoint will inevitably "depart to an appreciable extent from the general configuration of the
archipelago."
The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-Santiago, took pains to
emphasize the foregoing during the Senate deliberations:

What we call the Kalayaan Island Group or what the rest of the world call[] the Spratlys and the
Extent of maritime area using
Extent of maritime area using Scarborough Shoal are outside our archipelagic baseline because if we put them inside our baselines we
RA 3046, as amended, taking
RA 9522, taking into account might be accused of violating the provision of international law which states: "The drawing of such
into account the Treaty of
UNCLOS III (in square nautical baseline shall not depart to any appreciable extent from the general configuration of the archipelago." So
Paris delimitation (in square
miles) sa loob ng ating baseline, dapat magkalapit ang mga islands. Dahil malayo ang Scarborough Shoal, hindi
nautical miles)
natin masasabing malapit sila sa atin although we are still allowed by international law to claim them as
Internal or archipelagic our own.
waters 166,858 171,435
This is called contested islands outside our configuration. We see that our archipelago is defined by the
Territorial Sea 274,136 32,106 orange line which [we] call[] archipelagic baseline. Ngayon, tingnan ninyo ang maliit na circle doon sa
Exclusive Economic Zone 382,669 itaas, that is Scarborough Shoal, itong malaking circle sa ibaba, that is Kalayaan Group or the
Spratlys. Malayo na sila sa ating archipelago kaya kung ilihis pa natin ang dating archipelagic baselines
TOTAL 440,994 586,210 para lamang masama itong dalawang circles, hindi na sila magkalapit at baka hindi na tatanggapin ng
United Nations because of the rule that it should follow the natural configuration of the
archipelago.34 (Emphasis supplied)
Thus, as the map below shows, the reach of the exclusive economic zone drawn under RA 9522 even
extends way beyond the waters covered by the rectangular demarcation under the Treaty of Paris. Of
Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS IIIs limits.1avvphi1 The need
course, where there are overlapping exclusive economic zones of opposite or adjacent States, there will
to shorten this baseline, and in addition, to optimize the location of basepoints using current maps,
have to be a delineation of maritime boundaries in accordance with UNCLOS III.30
became imperative as discussed by respondents:

Further, petitioners argument that the KIG now lies outside Philippine territory because the baselines
that RA 9522 draws do not enclose the KIG is negated by RA 9522 itself. Section 2 of the law commits to
text the Philippines continued claim of sovereignty and jurisdiction over the KIG and the Scarborough
Shoal:
[T]he amendment of the baselines law was necessary to enable the Philippines to draw the outer limits
of its maritime zones including the extended continental shelf in the manner provided by Article 47 of
[UNCLOS III]. As defined by R.A. 3046, as amended by R.A. 5446, the baselines suffer from some technical
deficiencies, to wit:
 1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash to Tongquil Article 49. Legal status of archipelagic waters, of the air space over archipelagic waters and of their bed
Point) is 140.06 nautical miles x x x. This exceeds the maximum length allowed under Article and subsoil.
47(2) of the [UNCLOS III], which states that "The length of such baselines shall not exceed 100
nautical miles, except that up to 3 per cent of the total number of baselines enclosing any
1. The sovereignty of an archipelagic State extends to the waters enclosed by the
archipelago may exceed that length, up to a maximum length of 125 nautical miles."
archipelagic baselines drawn in accordance with article 47, described as archipelagic waters,
regardless of their depth or distance from the coast.
2. The selection of basepoints is not optimal. At least 9 basepoints can be skipped or deleted
from the baselines system. This will enclose an additional 2,195 nautical miles of water.
2. This sovereignty extends to the air space over the archipelagic waters, as well as to their
bed and subsoil, and the resources contained therein.
3. Finally, the basepoints were drawn from maps existing in 1968, and not established by
geodetic survey methods. Accordingly, some of the points, particularly along the west coasts
xxxx
of Luzon down to Palawan were later found to be located either inland or on water, not on
low-water line and drying reefs as prescribed by Article 47.35
4. The regime of archipelagic sea lanes passage established in this Part shall not in other
respects affect the status of the archipelagic waters, including the sea lanes, or the exercise
Hence, far from surrendering the Philippines claim over the KIG and the Scarborough Shoal, Congress
by the archipelagic State of its sovereignty over such waters and their air space, bed and
decision to classify the KIG and the Scarborough Shoal as "Regime[s] of Islands under the Republic of
subsoil, and the resources contained therein. (Emphasis supplied)
the Philippines consistent with Article 121"36 of UNCLOS III manifests the Philippine States responsible
observance of its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III, any
"naturally formed area of land, surrounded by water, which is above water at high tide," such as portions The fact of sovereignty, however, does not preclude the operation of municipal and international law
of the KIG, qualifies under the category of "regime of islands," whose islands generate their own norms subjecting the territorial sea or archipelagic waters to necessary, if not marginal, burdens in the
applicable maritime zones.37 interest of maintaining unimpeded, expeditious international navigation, consistent with the
international law principle of freedom of navigation. Thus, domestically, the political branches of the
Philippine government, in the competent discharge of their constitutional powers, may pass legislation
Statutory Claim Over Sabah under
designating routes within the archipelagic waters to regulate innocent and sea lanes passage.40 Indeed,
RA 5446 Retained
bills drawing nautical highways for sea lanes passage are now pending in Congress.41

Petitioners argument for the invalidity of RA 9522 for its failure to textualize the Philippines claim over
In the absence of municipal legislation, international law norms, now codified in UNCLOS III, operate to
Sabah in North Borneo is also untenable. Section 2 of RA 5446, which RA 9522 did not repeal, keeps open
grant innocent passage rights over the territorial sea or archipelagic waters, subject to the treatys
the door for drawing the baselines of Sabah:
limitations and conditions for their exercise.42 Significantly, the right of innocent passage is a customary
international law,43 thus automatically incorporated in the corpus of Philippine law.44 No modern State
Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided can validly invoke its sovereignty to absolutely forbid innocent passage that is exercised in accordance
in this Actis without prejudice to the delineation of the baselines of the territorial sea around the with customary international law without risking retaliatory measures from the international
territory of Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired community.
dominion and sovereignty. (Emphasis supplied)
The fact that for archipelagic States, their archipelagic waters are subject to both the right of innocent
UNCLOS III and RA 9522 not passage and sea lanes passage45 does not place them in lesser footing vis--vis continental coastal States
Incompatible with the Constitutions which are subject, in their territorial sea, to the right of innocent passage and the right of transit passage
Delineation of Internal Waters through international straits. The imposition of these passage rights through archipelagic waters under
UNCLOS III was a concession by archipelagic States, in exchange for their right to claim all the waters
landward of their baselines,regardless of their depth or distance from the coast, as archipelagic waters
As their final argument against the validity of RA 9522, petitioners contend that the law
subject to their territorial sovereignty. More importantly, the recognition of archipelagic States
unconstitutionally "converts" internal waters into archipelagic waters, hence subjecting these waters to
archipelago and the waters enclosed by their baselines as one cohesive entity prevents the treatment of
the right of innocent and sea lanes passage under UNCLOS III, including overflight. Petitioners
their islands as separate islands under UNCLOS III.46 Separate islands generate their own maritime zones,
extrapolate that these passage rights indubitably expose Philippine internal waters to nuclear and
placing the waters between islands separated by more than 24 nautical miles beyond the States
maritime pollution hazards, in violation of the Constitution.38
territorial sovereignty, subjecting these waters to the rights of other States under UNCLOS III.47

Whether referred to as Philippine "internal waters" under Article I of the Constitution39 or as

Petitioners invocation of non-executory constitutional provisions in Article II (Declaration of Principles
"archipelagic waters" under UNCLOS III (Article 49 [1]), the Philippines exercises sovereignty over the
and State Policies)48 must also fail. Our present state of jurisprudence considers the provisions in Article
body of water lying landward of the baselines, including the air space over it and the submarine areas
II as mere legislative guides, which, absent enabling legislation, "do not embody judicially enforceable
underneath. UNCLOS III affirms this:
constitutional rights x x x."49 Article II provisions serve as guides in formulating and interpreting
implementing legislation, as well as in interpreting executory provisions of the Constitution.
Although Oposa v. Factoran50 treated the right to a healthful and balanced ecology under Section 16 of
Article II as an exception, the present petition lacks factual basis to substantiate the claimed
constitutional violation. The other provisions petitioners cite, relating to the protection of marine wealth
(Article XII, Section 2, paragraph 251 ) and subsistence fishermen (Article XIII, Section 752 ), are not
violated by RA 9522.

In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive economic zone,
reserving solely to the Philippines the exploitation of all living and non-living resources within such zone.
Such a maritime delineation binds the international community since the delineation is in strict
observance of UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the international
community will of course reject it and will refuse to be bound by it.

UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a sui
generis maritime space the exclusive economic zone in waters previously part of the high seas.
UNCLOS III grants new rights to coastal States to exclusively exploit the resources found within this zone
up to 200 nautical miles.53 UNCLOS III, however, preserves the traditional freedom of navigation of other
States that attached to this zone beyond the territorial sea before UNCLOS III.

RA 9522 and the Philippines Maritime Zones

Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress was not bound to
pass RA 9522.54 We have looked at the relevant provision of UNCLOS III55 and we find petitioners reading
plausible. Nevertheless, the prerogative of choosing this option belongs to Congress, not to this Court.
Moreover, the luxury of choosing this option comes at a very steep price. Absent an UNCLOS III
compliant baselines law, an archipelagic State like the Philippines will find itself devoid of internationally
acceptable baselines from where the breadth of its maritime zones and continental shelf is measured.
This is recipe for a two-fronted disaster: first, it sends an open invitation to the seafaring powers to
freely enter and exploit the resources in the waters and submarine areas around our archipelago;
and second, it weakens the countrys case in any international dispute over Philippine maritime space.
These are consequences Congress wisely avoided.

The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and adjacent areas,
as embodied in RA 9522, allows an internationally-recognized delimitation of the breadth of the
Philippines maritime zones and continental shelf. RA 9522 is therefore a most vital step on the part of
the Philippines in safeguarding its maritime zones, consistent with the Constitution and our national
interest.

WHEREFORE, we DISMISS the petition.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 129406 March 6, 2006
REPUBLIC OF THE PHILIPPINES represented by the PRESIDENTIAL COMMISSION ON GOOD
GOVERNMENT (PCGG), Petitioner,
vs.
SANDIGANBAYAN (SECOND DIVISION) and ROBERTO S. BENEDICTO, Respondents.
DECISION
GARCIA, J.:
Before the Court is this petition for certiorari under Rule 65 of the Rules of Court to nullify and set aside
the March 28, 19951 and March 13, 19972 Resolutions of the Sandiganbayan, Second Division, in Civil
Case No. 0034, insofar as said resolutions ordered the Presidential Commission on Good Government
(PCGG) to pay private respondent Roberto S. Benedicto or his corporations the value of 227 shares of
stock of the Negros Occidental Golf and Country Club, Inc. (NOGCCI) at P150,000.00 per share, registered
in the name of said private respondent or his corporations.
The facts:
Civil Case No. 0034 entitled Republic of the Philippines, plaintiff, v. Roberto S. Benedicto, et al.,
defendants, is a complaint for reconveyance, reversion, accounting, reconstitution and damages. The
case is one of several suits involving ill-gotten or unexplained wealth that petitioner Republic, through
the PCGG, filed with the Sandiganbayan against private respondent Roberto S. Benedicto and others
pursuant to Executive Order (EO) No. 14,3 series of 1986.
Pursuant to its mandate under EO No. 1,4 series of 1986, the PCGG issued writs placing under
sequestration all business enterprises, entities and other properties, real and personal, owned or
registered in the name of private respondent Benedicto, or of corporations in which he appeared to have
controlling or majority interest. Among the properties thus sequestered and taken over by PCGG fiscal
agents were the 227 shares in NOGCCI owned by private respondent Benedicto and registered in his
name or under the names of corporations he owned or controlled.
Following the sequestration process, PCGG representatives sat as members of the Board of Directors of
NOGCCI, which passed, sometime in October 1986, a resolution effecting a corporate policy change. The
change consisted of assessing a monthly membership due of P150.00 for each NOGCCI share. Prior to
this resolution, an investor purchasing more than one NOGCCI share was exempt from paying monthly
membership due for the second and subsequent shares that he/she owned.
Subsequently, on March 29, 1987, the NOGCCI Board passed another resolution, this time increasing the
monthly membership due from P150.00 to P250.00 for each share.
As sequestrator of the 227 shares of stock in question, PCGG did not pay the corresponding monthly
membership due thereon totaling P2,959,471.00. On account thereof, the 227 sequestered shares were
declared delinquent to be disposed of in an auction sale.
Apprised of the above development and evidently to prevent the projected auction sale of the same
shares, PCGG filed a complaint for injunction with the Regional Trial Court (RTC) of Bacolod City, thereat
docketed as Civil Case No. 5348. The complaint, however, was dismissed, paving the way for the auction
sale for the delinquent 227 shares of stock. On August 5, 1989, an auction sale was conducted.
On November 3, 1990, petitioner Republic and private respondent Benedicto entered into a Compromise
Agreement in Civil Case No. 0034. The agreement contained a general release clause5 whereunder
petitioner Republic agreed and bound itself to lift the sequestration on the 227 NOGCCI shares, among
other Benedictos properties, petitioner Republic acknowledging that it was within private respondent
Benedictos capacity to acquire the same shares out of his income from business and the exercise of his
profession.6 Implied in this undertaking is the recognition by petitioner Republic that the subject shares
of stock could not have been ill-gotten.
In a decision dated October 2, 1992, the Sandiganbayan approved the Compromise Agreement and
accordingly rendered judgment in accordance with its terms.
In the process of implementing the Compromise Agreement, either of the parties would, from time to
time, move for a ruling by the Sandiganbayan on the proper manner of implementing or interpreting a
specific provision therein.
On February 22, 1994, Benedicto filed in Civil Case No. 0034 a "Motion for Release from Sequestration
and Return of Sequestered Shares/Dividends" praying, inter alia, that his NOGCCI shares of stock be
specifically released from sequestration and returned, delivered or paid to him as part of the parties
Compromise Agreement in that case. In a Resolution7 promulgated on December 6, 1994, the
Sandiganbayan granted Benedictos aforementioned motion but placed the subject shares under the
custody of its Clerk of Court, thus:
WHEREFORE, in the light of the foregoing, the said "Motion for Release From Sequestration and Return
of Sequestered Shares/Dividends" is hereby GRANTED and it is directed that said shares/dividends be
delivered/placed under the custody of the Clerk of Court, Sandiganbayan, Manila subject to this Courts
disposition.
On March 28, 1995, the Sandiganbayan came out with the herein first assailed Resolution,8 which
clarified its aforementioned December 6, 1994 Resolution and directed the immediate implementation
thereof by requiring PCGG, among other things:
(b) To deliver to the Clerk of Court the 227 sequestered shares of [NOGCCI] registered in the name of
nominees of ROBERTO S. BENEDICTO free from all liens and encumbrances, or in default thereof, to pay
their value at P150,000.00 per share which can be deducted from [the Republics] cash share in the
Compromise Agreement. [Words in bracket added] (Emphasis Supplied).
Owing to PCGGs failure to comply with the above directive, Benedicto filed in Civil Case No. 0034 a
Motion for Compliance dated July 25, 1995, followed by an Ex-Parte Motion for Early Resolution dated
February 12, 1996. Acting thereon, the Sandiganbayan promulgated yet another Resolution9 on February
23, 1996, dispositively reading:
WHEREFORE, finding merit in the instant motion for early resolution and considering that, indeed, the shares ought not to have come to pass had those fiscal agents prudently not agreed to the passage of
PCGG has not shown any justifiable ground as to why it has not complied with its obligation as set forth the NOGCCI board resolutions charging membership dues on shares without playing representatives.
in the Order of December 6, 1994 up to this date and which Order was issued pursuant to the
Compromise Agreement and has already become final and executory, accordingly, the Presidential
Given the circumstances leading to the auction sale of the subject NOGCCI shares, PCGGs lament about
Commission on Good Government is hereby given a final extension of fifteen (15) days from receipt
public respondent Sandiganbayan having erred or, worse still, having gravely abused its discretion in its
hereof within which to comply with the Order of December 6, 1994 as stated hereinabove.
determination as to who is at fault for the loss of the shares in question can hardly be given cogency.

On April 1, 1996, PCGG filed a Manifestation with Motion for Reconsideration,10 praying for the setting
For sure, even if the Sandiganbayan were wrong in its findings, which does not seem to be in this case, it
aside of the Resolution of February 23, 1996. On April 11, 1996, private respondent Benedicto filed a
is a well-settled rule of jurisprudence that certiorari will issue only to correct errors of jurisdiction, not
Motion to Enforce Judgment Levy. Resolving these two motions, the Sandiganbayan, in its second
errors of judgment. Corollarily, errors of procedure or mistakes in the courts findings and conclusions
assailed Resolution11 dated March 13, 1997, denied that portion of the PCGGs Manifestation with
are beyond the corrective hand of certiorari.14 The extraordinary writ of certiorari may be availed only
Motion for Reconsideration concerning the subject 227 NOGCCI shares and granted Benedictos Motion
upon a showing, in the minimum, that the respondent tribunal or officer exercising judicial or quasi-
to Enforce Judgment Levy.
judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of
discretion.15
Hence, the Republics present recourse on the sole issue of whether or not the public respondent
Sandiganbayan, Second Division, gravely abused its discretion in holding that the PCGG is at fault for not
The term "grave abuse of discretion" connotes capricious and whimsical exercise of judgment as is
paying the membership dues on the 227 sequestered NOGCCI shares of stock, a failing which eventually
equivalent to excess, or a lack of jurisdiction.16 The abuse must be so patent and gross as to amount to
led to the foreclosure sale thereof.
an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law as where the power is exercised in an arbitrary and despotic manner by reason of
The petition lacks merit. passion or hostility.17 Sadly, this is completely absent in the present case. For, at bottom, the assailed
resolutions of the Sandiganbayan did no more than to direct PCGG to comply with its part of the bargain
under the compromise agreement it freely entered into with private respondent Benedicto. Simply put,
To begin with, PCGG itself does not dispute its being considered as a receiver insofar as the sequestered
the assailed resolutions of the Sandiganbayan have firm basis in fact and in law.
227 NOGCCI shares of stock are concerned.12 PCGG also acknowledges that as such receiver, one of its
functions is to pay outstanding debts pertaining to the sequestered entity or property,13 in this case the
227 NOGCCI shares in question. It contends, however, that membership dues owing to a golf club cannot Lest it be overlooked, the issue of liability for the shares in question had, as both public and private
be considered as an outstanding debt for which PCGG, as receiver, must pay. It also claims to have respondents asserted, long become final and executory. Petitioners narration of facts in its present
exercised due diligence to prevent the loss through delinquency sale of the subject NOGCCI shares, petition is even misleading as it conveniently fails to make reference to two (2) resolutions issued by the
specifically inviting attention to the injunctive suit, i.e., Civil Case No. 5348, it filed before the RTC of Sandiganbayan. We refer to that courts resolutions of December 6, 199418 and February 23, 199619 as
Bacolod City to enjoin the foreclosure sale of the shares. well as several intervening pleadings which served as basis for the decisions reached therein. As it were,
the present petition questions only and focuses on the March 28, 199520 and March 13,
199721 resolutions, which merely reiterated and clarified the graft courts underlying resolution of
The filing of the injunction complaint adverted to, without more, cannot plausibly tilt the balance in
December 6, 1994. And to place matters in the proper perspective, PCGGs failure to comply with the
favor of PCGG. To the mind of the Court, such filing is a case of acting too little and too late. It cannot be
December 6, 1994 resolution prompted the issuance of the clarificatory and/or reiteratory resolutions
over-emphasized that it behooved the PCGGs fiscal agents to preserve, like a responsible father of the
aforementioned.
family, the value of the shares of stock under their administration. But far from acting as such father,
what the fiscal agents did under the premises was to allow the element of delinquency to set in before
acting by embarking on a tedious process of going to court after the auction sale had been announced In a last-ditch attempt to escape liability, petitioner Republic, through the PCGG, invokes state immunity
and scheduled. from suit.22 As argued, the order for it to pay the value of the delinquent shares would fix monetary
liability on a government agency, thus necessitating the appropriation of public funds to satisfy the
judgment claim.23 But, as private respondent Benedicto correctly countered, the PCGG fails to take stock
The PCGGs posture that to the owner of the sequestered shares rests the burden of paying the
of one of the exceptions to the state immunity principle, i.e., when the government itself is the suitor, as
membership dues is untenable. For one, it lost sight of the reality that such dues are basically obligations
in Civil Case No. 0034. Where, as here, the State itself is no less the plaintiff in the main case, immunity
attached to the shares, which, in the final analysis, shall be made liable, thru delinquency sale in case of
from suit cannot be effectively invoked.24 For, as jurisprudence teaches, when the State, through its duly
default in payment of the dues. For another, the PCGG as sequestrator-receiver of such shares is, as
authorized officers, takes the initiative in a suit against a private party, it thereby descends to the level of
stressed earlier, duty bound to preserve the value of such shares. Needless to state, adopting timely
a private individual and thus opens itself to whatever counterclaims or defenses the latter may have
measures to obviate the loss of those shares forms part of such duty and due diligence.
against it.25 Petitioner Republics act of filing its complaint in Civil Case No. 0034 constitutes a waiver of
its immunity from suit. Being itself the plaintiff in that case, petitioner Republic cannot set up its
The Sandiganbayan, to be sure, cannot plausibly be faulted for finding the PCGG liable for the loss of the immunity against private respondent Benedictos prayers in the same case.
227 NOGCCI shares. There can be no quibbling, as indeed the graft court so declared in its assailed and
related resolutions respecting the NOGCCI shares of stock, that PCGGs fiscal agents, while sitting in the
In fact, by entering into a Compromise Agreement with private respondent Benedicto, petitioner
NOGCCI Board of Directors agreed to the amendment of the rule pertaining to membership dues. Hence,
Republic thereby stripped itself of its immunity from suit and placed itself in the same level of its
it is not amiss to state, as did the Sandiganbayan, that the PCGG-designated fiscal agents, no less, had a
adversary. When the State enters into contract, through its officers or agents, in furtherance of a
direct hand in the loss of the sequestered shares through delinquency and their eventual sale through
legitimate aim and purpose and pursuant to constitutional legislative authority, whereby mutual or
public auction. While perhaps anti-climactic to so mention it at this stage, the unfortunate loss of the
reciprocal benefits accrue and rights and obligations arise therefrom, the State may be sued even
without its express consent, precisely because by entering into a contract the sovereign descends to the
level of the citizen. Its consent to be sued is implied from the very act of entering into such
contract,26 breach of which on its part gives the corresponding right to the other party to the agreement.

Finally, it is apropos to stress that the Compromise Agreement in Civil Case No. 0034 envisaged the
immediate recovery of alleged ill-gotten wealth without further litigation by the government, and buying
peace on the part of the aging Benedicto.27 Sadly, that stated objective has come to naught as not only
had the litigation continued to ensue, but, worse, private respondent Benedicto passed away on May 15,
2000,28 with the trial of Civil Case No. 0034 still in swing, so much so that the late Benedicto had to be
substituted by the administratrix of his estate.29

WHEREFORE, the instant petition is hereby DISMISSED.

SO ORDERED.
 Plaintiff Gaudencio A. Begosa, now appellee, sought the aid of the judiciary to obtain the benefits to
which he believed he was entitled under the Veterans Bill of Rights. 1 To such a move, there was an
insistent objection, both vigorous and persistent, on the part of defendants, the chairman and the
members of the Philippine Veterans Administration, now appellants. The lower court, then presided by
the then Judge, now Justice of the Court of Appeals, the Honorable Edilberto Soriano, found for
EN BANC plaintiffs, after a careful and meticulous study of the applicable statutory provisions. Not being satisfied
with such a judgment, defendants appealed, relying once more on the principal grounds raised below
[G.R. No. L-25916. April 30, 1970.] that plaintiff should have exhausted his administrative remedies before coming to court and that he was
in fact suing the State without its consent having been obtained. As neither defense is sufficiently
GAUDENCIO A. BEGOSA, Plaintiff-Appellee, v. CHAIRMAN, PHILIPPINE VETERANS ADMINISTRATION; meritorious, we affirm the lower court decision.
and MEMBERS OF THE BOARD OF ADMINISTRATORS, PHILIPPINE VETERANS
ADMINISTRATION, Defendants-Appellants. As noted in such decision, appellees complaint was predicated on his having been "an enlisted man in
good standing of the Philippine Commonwealth Army, inducted in the service of the USAFFE" and having
Jose V . Rosales for Plaintiff-Appellee. taken "active participation in the battle of Bataan" as well as the "liberation drive against the enemy"
thereafter having become "permanently incapacitated from work due to injuries he sustained in line of
Solicitor General, for Defendants-Appellants. duty . . ." 2 It was likewise asserted in his complaint that after having submitted all the supporting papers
relative to his complaint, there was a disapproval on the part of defendants on the ground of his having
been dishonorably discharged, although such an event did not take place until almost five years after the
SYLLABUS end of the war on November 7, 1950 and while he was in the service of a different organization that such
a penalty was imposed on him. 3

1. REMEDIAL LAW; PARTIES; DOCTRINE OF NON-SUABILITY OF STATE, EXCEPTION. It is well settled that
where a litigation may have adverse consequences on the public treasury, whether in the disbursements
of funds or loss of property, the public official proceeded against not being liable in his personal capacity,
then the doctrine of non-suability may appropriately be invoked. It has no application, however, where
the suit against such a functionary had to be instituted because of his failure to comply with the duty
imposed by statute appropriating public funds for the benefit of plaintiff or petitioner
2. ID.; ADMINISTRATIVE LAW; EXHAUSTION OF ADMINISTRATIVE REMEDY UNNECESSARY WHERE
QUESTION IS LEGAL; CASE AT BAR. It is well established that the principle requiring the previous
exhaustion of administrative remedies is not applicable where the question in dispute is purely a legal
one, or where the controverted act is patently illegal or was performed without jurisdiction or in excess
of jurisdiction, or where the respondent is a department Secretary, whose acts as an alter-ego of the
President bear the implied or assumed approval of the latter, unless actually disapproved by him, or
where there are circumstances indicating the urgency of judicial intervention. Where there is a
stipulation of facts, as in this case, the question before the lower court being solely one of law and on
the face of the decision, the actuation of appellants being patently illegal, the doctrine of exhaustion of
administrative remedies certainly does not come into play.
3. ID.; ID.; FINDINGS OF REGULATORY AGENCIES ENTITLED TO RESPECT. It has often been announced,
and rightly so, that as much as possible the findings of regulatory agencies which are expected to acquire
expertise by their jurisdiction being confined to specific matters, deserve to be accorded respect and
finality. There is a limit, however, to such a deference paid to the actuations of such bodies. Clearly,
where there has been a failure to interpret and apply the statutory provisions in question, judicial power
should assert itself. Under the theory of separation of powers, it is to the judiciary, and to the judiciary
alone, that the final say on questions of law in appropriate cases coming before it is vested.
DECISION
FERNANDO, J.:
Then came the allegation that there was an approval on his claim on September 2, 1964 but effective
only as of October 5 of that year, and for amount much less than that to which he was entitled under the
law. 4 The relief sought was the payment, as of the date to which he believed his right to pension should
have been respected, of the sums, which he felt were legally due and owing to him.chanrobles virtual
lawlibrary
The then Judge Soriano noted that there was an admission of certain allegations to the complaint with
others being denied, and that the following affirmative and special defenses were interposed:
"Defendants answer admits certain allegations of said complaint, while denying others; set up the
following affirmative and special defenses: (1) payment of disability pension under Republic Act No. 65,
as amended, by the Philippine Veterans Administration commences from the date the proper application
therefor is approved; (2) plaintiff has not exhausted all administrative remedies before resorting to court
action, hence the present action is premature; (3) inasmuch as the instant action pertains to money
claim against the Government, it must first be presented before the Auditor General as provided by
existing law on the matter (C.A. 327); and (4) plaintiffs claim is in reality a suit against the Government
which cannot be entertained by this Court for lack of jurisdiction because the Government has not given
its consent, . . ." 5 The case was then submitted on an agreed statement of facts and the respective
memoranda of the parties.
In the decision now on appeal, the question of when appellee is entitled to his pension as well as how
much it would amount to were fully discussed by the lower court. Thus, as to the former: "From the facts
just set out, it will be noted that plaintiff filed his said claim for disability pension as far back as March 4,
1955; that it was erroneously disapproved on June 21, 1955, because his dishonorable discharge from
the Army was not a good or proper ground for the said disapproval, and that on reconsideration asked
for by him on November 1, 1957, which he continued to follow up, the Board of Administrators,
Philippine Veterans Administration, composed of herein defendants, which took over the duties of the
Philippine Veterans Board, finally approved his claim on September 2, 1964, at the rate of P30.00 a
month." 6 After stating that in fairness and good conscience the said claims could be made effective as of
June 21, 1955, when it was erroneously disapproved by appellants, and not on September 2, 1964 when
it was approved on reconsideration, as appellee should not for obvious reason be made to suffer for the
error of another, the then Judge Soriano observed further: "Had it not been for the said error, it appears
that there was no good ground to deny the said claim, so the latter was valid and meritorious even as of
the date of its filing on March 4, 1955, hence to make the same effective only as of the date of its
approval on September 2, 1964 according to defendants stand would be greatly unfair and
prejudicial to plaintiff. This is especially true in the light of the well-known intent of the legislature in
passing these pension laws of war veterans, and the no less well-known spirit in which they should be
construed or interpreted by the courts in favor of their beneficiaries." 7
On the question of how much plaintiff should receive according to law, the appealed decision contains
the following: "The next question for resolution refers to the monthly rate or amount to which plaintiff is
entitled by way of pension. According to plaintiff, he should be given a disability pension of P50.00 a
month from June 21, 1955 (the effective date of his claim as above found by this Court) until June 21,
1957, and P100.00 a month for life from June 22, 1957 when Section 9 of Republic Act No. 65, as
amended by Republic Act No. 1362, was further amended by Republic Act No. 1920). This contention is
well taken because the very letter of the Philippine Veterans Administration to plaintiff (Annex F of the
[Agreed Statements of Facts]) contains the following: Note: Re-rating is not required, permanent
disability. By permanent disability, as this Court understands it, is meant that plaintiff is permanently
incapacitated from work. Under Section 9 of Republic Act No. 65, as amended by Republic Act No. 1362,
which was the law in force when plaintiffs claim for pension should have been approved on June 21,
1955, he was entitled to a pension of P50.00 a month as such permanently incapacitated person, which
monthly rate or amount was increased to P100.00 a month when the said Section 9 was further
amended by Republic Act No. 1920 on June 22, 1957." 8 Why the action of appellants in the form of
resolution could not prevail as against the law was made clear by the decision in this wise: "For one
thing, the said resolution may not change or amend the meaning of the term permanent disability as
used by Congress itself in enacting the said Section 9 of Republic Act No. 65, as amended. For another, as
of June 21, 1955 and as of June 21, 1957, plaintiff was already entitled to the said pension of P50.00 and
P100.00 a month respectively, and his said right cannot be adversely affected by a resolution which was
allegedly adopted only in 1963." 9 Necessarily, there was in the decision likewise a recognition of the
monthly allowance for each of appellees unmarried minor children below 18 years of age at the time he
was entitled to the pension to which under the statute he could validly lay
claim.chanroblesvirtuallawlibrary
After rejecting as untenable the defenses that there was no exhaustion of administrative remedies, that
the action is in the nature of money claim which should first be presented before the Auditor General,
and that said action is in reality a suit against the Government without the latters consent, the decision
concludes with the following:" [Wherefore], judgment is hereby rendered in accordance with the prayer
of plaintiffs amended complaint, to wit, that defendants make plaintiffs pension effective June 21, 1955
at the rate of P50.00 a month up to June 21, 1957 at the rate of P100.00 a month, plus P10.00 a month
each for his four unmarried minor children below 18 years old from June 22, 1957 up to September 1,
1964; and the difference of P70.00 a month, plus P10.00 for his one unmarried minor child below 18
years old from September 2, 1954, and thereafter, with costs against said dependents." 10
Appellants elevated the matter to us. The careful and painstaking way in which the controlling statutory
provisions were considered and applied by the then Judge Soriano must have impelled them to place
their faith in the alleged failure to respect the doctrines of non-suability and exhaustion of administrative
remedies to obtain a reversal. The appealed decision, however, as will now be shown is not subject to
such a reproach. The appeal then, as noted at the outset, is not to be attended with success.
1. The fourth assignment of error assails what it considers to be the failing of the lower court in not
holding that the complaint in this case is in effect a suit against the State which has not given its consent
thereto. We have recently had occasion to reaffirm the force and primacy of the doctrine of non-
suability. 11 It does not admit of doubt, then, that if the suit were in fact against the State, the lower
court should have dismissed the complaint. Nor is it to be doubted that while ostensibly an action may
be against a public official, the defendant may in reality be the government. As a result, it is equally well-
settled that where a litigation may have adverse consequences on the public treasury, whether in the
disbursements of funds or loss of property, the public official proceeded against not being liable in his
personal capacity, then the doctrine of non-suability may appropriately be invoked. It has no application,
however, where the suit against such a functionary had to be instituted because of his failure to comply
with the duty imposed by statute appropriating public funds for the benefit of plaintiff or petitioner.
Such is the present case.chanroblesvirtual|awlibrary
The doctrine announced by us in Ruiz v. Cabahug 12 finds relevance: "We hold that under the facts and
circumstances alleged in the amended complaint, which should be taken on its face value, the suit is not
one against the Government, or a claim against it, but one against the officials to compel them to act in
accordance with the rights to be established by the contending architects, or to prevent them from
making payment and recognition until the contending architects have established their respective rights
and interests in the funds retained and in the credit for the work done." 13 As a matter of fact, in an
earlier case where we sustained the power of a private citizen claiming title to and right of possession of
a certain property to sue an officer or agent of the government alleged to be illegally withholding the
same, we likewise expressed this caveat: "However, and this is important, where the judgment in such a
case would result not only in the recovery of possession of the property in favor of said citizen but also in
a charge against or financial liability to the Government, then the suit should be regarded as one against
the government itself, and, consequently, it cannot prosper or be validly entertained by the courts
except with the consent of said Government." 14
2. Nor is the third assignment of error to the effect that the lower court did not require appellee to
exhaust his administrative remedies before coming to court any more persuasive. An excerpt from the
leading case of Gonzales v. Hechanova, 15 the opinion being penned by the present Chief Justice, clearly
demonstrates why appellants argument in this respect is unavailing: "Respondents assail petitioners
right to the reliefs prayed for because he has not exhausted all administrative remedies available to him
before coming to court. We have already held, however, that the principle requiring the previous
exhaustion of administrative remedies is not applicable where the question in dispute is purely a legal
one, or where the controverted act is patently illegal or was performed without jurisdiction or in excess
of jurisdiction, or where the respondent is a department secretary, whose acts as an alter-ego of the
President bear the implied or assumed approval of the latter, unless actually disapproved by him, or
where there are circumstances indicating the urgency of judicial intervention." 16 The Gonzales doctrine,
it is to be noted, summarized the views announced in earlier cases. 17 The list of subsequent cases
reiterating such a doctrine is quite impressive. 18 To be more specific, where there is a stipulation of
facts, as in this case, the question before the lower court being solely one of law and on the face of the
decision, the actuation of appellants being patently illegal, the doctrine of exhaustion of administrative
remedies certainly does not come into play.
3. The other errors assigned, namely the alleged failure of the lower court to comply with the law in
fixing the amounts to which appellee is entitled instead of following the rules and regulations on
veterans benefits promulgated by appellants and the alleged interference with the purely discretionary
matter of a coordinate administrative agent, the Philippine Veterans Administration, can easily be
disposed of. It is to be admitted that appellants as chairman and members of the Philippine Veterans
Administration, formerly the Philippine Veterans Board, are officials of an administrative body. 19 Nor
may exception be taken to the general principle that as much as possible the courts should view with the
utmost sympathy the exercise of power of administrative tribunals whether in its rule-making or
adjudicatory capacity. It has often been announced, and rightly so, that as much as possible the findings
of these regulatory agencies which are expected to acquire expertise by their jurisdiction being confined
to specific matters, deserve to be accorded respect and finality. There is a limit, however, to such a
deference paid to the actuations of such bodies. Clearly, where there has been a failure to interpret and
apply the statutory provisions in question, judicial power should assert itself. Under the theory of
separation of powers, it is to the judiciary and to the judiciary alone, that the final say on questions of
law appropriate cases coming before it is vested.chanrobles.com : virtual law library
When the then Judge Soriano, therefore, as he was called upon to do, saw to it that there was strict
compliance with the amounts of pension required by the law to be granted plaintiff and disregarded the
regulation promulgated under the rule-making power of appellants, the effect of which would make
appellee suffer the consequences of an error committed by them, it cannot be truly said that his decision
may be assailed as being offensive to authoritative doctrines. On the contrary, it can stand the test of the
utmost scrutiny. Precisely because the commands of the law were duly carried out, it cannot be set
aside.

WHEREFORE, the decision of the then Judge Edilberto Soriano of the Court of First Instance of Manila
promulgated on January 22, 1966, is affirmed. Without pronouncement as to costs
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-11154 March 21, 1916
E. MERRITT, plaintiff-appellant,
vs.
GOVERNMENT OF THE PHILIPPINE ISLANDS, defendant-appellant.
Crossfield and O'Brien for plaintiff.
Attorney-General Avancea for defendant..
TRENT, J.:
This is an appeal by both parties from a judgment of the Court of First Instance of the city of Manila in
favor of the plaintiff for the sum of P14,741, together with the costs of the cause.
Counsel for the plaintiff insist that the trial court erred (1) "in limiting the general damages which the
plaintiff suffered to P5,000, instead of P25,000 as claimed in the complaint," and (2) "in limiting the time
when plaintiff was entirely disabled to two months and twenty-one days and fixing the damage
accordingly in the sum of P2,666, instead of P6,000 as claimed by plaintiff in his complaint."
The Attorney-General on behalf of the defendant urges that the trial court erred: (a) in finding that the
collision between the plaintiff's motorcycle and the ambulance of the General Hospital was due to the
negligence of the chauffeur; (b) in holding that the Government of the Philippine Islands is liable for the
damages sustained by the plaintiff as a result of the collision, even if it be true that the collision was due
to the negligence of the chauffeur; and (c) in rendering judgment against the defendant for the sum of
P14,741.
The trial court's findings of fact, which are fully supported by the record, are as follows:
It is a fact not disputed by counsel for the defendant that when the plaintiff, riding on a
motorcycle, was going toward the western part of Calle Padre Faura, passing along the west
side thereof at a speed of ten to twelve miles an hour, upon crossing Taft Avenue and when
he was ten feet from the southwestern intersection of said streets, the General Hospital
ambulance, upon reaching said avenue, instead of turning toward the south, after passing the
center thereof, so that it would be on the left side of said avenue, as is prescribed by the
ordinance and the Motor Vehicle Act, turned suddenly and unexpectedly and long before
reaching the center of the street, into the right side of Taft Avenue, without having sounded
any whistle or horn, by which movement it struck the plaintiff, who was already six feet from
the southwestern point or from the post place there.
By reason of the resulting collision, the plaintiff was so severely injured that, according to Dr.
Saleeby, who examined him on the very same day that he was taken to the General Hospital,
he was suffering from a depression in the left parietal region, a would in the same place and
in the back part of his head, while blood issued from his nose and he was entirely
unconscious.
The marks revealed that he had one or more fractures of the skull and that the grey matter
and brain was had suffered material injury. At ten o'clock of the night in question, which was
the time set for performing the operation, his pulse was so weak and so irregular that, in his
opinion, there was little hope that he would live. His right leg was broken in such a way that
the fracture extended to the outer skin in such manner that it might be regarded as double
and the would be exposed to infection, for which reason it was of the most serious nature.
At another examination six days before the day of the trial, Dr. Saleeby noticed that the
plaintiff's leg showed a contraction of an inch and a half and a curvature that made his leg
very weak and painful at the point of the fracture. Examination of his head revealed a notable
readjustment of the functions of the brain and nerves. The patient apparently was slightly
deaf, had a light weakness in his eyes and in his mental condition. This latter weakness was
always noticed when the plaintiff had to do any difficult mental labor, especially when he
attempted to use his money for mathematical calculations.
According to the various merchants who testified as witnesses, the plaintiff's mental and
physical condition prior to the accident was excellent, and that after having received the
injuries that have been discussed, his physical condition had undergone a noticeable
depreciation, for he had lost the agility, energy, and ability that he had constantly displayed
before the accident as one of the best constructors of wooden buildings and he could not
now earn even a half of the income that he had secured for his work because he had lost 50
per cent of his efficiency. As a contractor, he could no longer, as he had before done, climb up
ladders and scaffoldings to reach the highest parts of the building.
As a consequence of the loss the plaintiff suffered in the efficiency of his work as a contractor,
he had to dissolved the partnership he had formed with the engineer. Wilson, because he was
incapacitated from making mathematical calculations on account of the condition of his leg
and of his mental faculties, and he had to give up a contract he had for the construction of
the Uy Chaco building."
We may say at the outset that we are in full accord with the trial court to the effect that the collision
between the plaintiff's motorcycle and the ambulance of the General Hospital was due solely to the
negligence of the chauffeur.
The two items which constitute a part of the P14,741 and which are drawn in question by the plaintiff
are (a) P5,000, the award awarded for permanent injuries, and (b) the P2,666, the amount allowed for
the loss of wages during the time the plaintiff was incapacitated from pursuing his occupation. We find
nothing in the record which would justify us in increasing the amount of the first. As to the second, the
record shows, and the trial court so found, that the plaintiff's services as a contractor were worth P1,000
per month. The court, however, limited the time to two months and twenty-one days, which the plaintiff
was actually confined in the hospital. In this we think there was error, because it was clearly established
that the plaintiff was wholly incapacitated for a period of six months. The mere fact that he remained in
the hospital only two months and twenty-one days while the remainder of the six months was spent in
his home, would not prevent recovery for the whole time. We, therefore, find that the amount of
damages sustained by the plaintiff, without any fault on his part, is P18,075.
As the negligence which caused the collision is a tort committed by an agent or employee of the
Government, the inquiry at once arises whether the Government is legally-liable for the damages
resulting therefrom.
Act No. 2457, effective February 3, 1915, reads:
 An Act authorizing E. Merritt to bring suit against the Government of the Philippine Islands
and authorizing the Attorney-General of said Islands to appear in said suit.
Whereas a claim has been filed against the Government of the Philippine Islands by Mr. E.
Merritt, of Manila, for damages resulting from a collision between his motorcycle and the
ambulance of the General Hospital on March twenty-fifth, nineteen hundred and thirteen;
Whereas it is not known who is responsible for the accident nor is it possible to determine the
amount of damages, if any, to which the claimant is entitled; and
Whereas the Director of Public Works and the Attorney-General recommended that an Act be
passed by the Legislature authorizing Mr. E. Merritt to bring suit in the courts against the
Government, in order that said questions may be decided: Now, therefore,
By authority of the United States, be it enacted by the Philippine Legislature, that:
SECTION 1. E. Merritt is hereby authorized to bring suit in the Court of First Instance of the
city of Manila against the Government of the Philippine Islands in order to fix the
responsibility for the collision between his motorcycle and the ambulance of the General
Hospital, and to determine the amount of the damages, if any, to which Mr. E. Merritt is
entitled on account of said collision, and the Attorney-General of the Philippine Islands is
hereby authorized and directed to appear at the trial on the behalf of the Government of said
Islands, to defendant said Government at the same.
SEC. 2. This Act shall take effect on its passage.
Enacted, February 3, 1915.
Did the defendant, in enacting the above quoted Act, simply waive its immunity from suit or did it also
concede its liability to the plaintiff? If only the former, then it cannot be held that the Act created any
new cause of action in favor of the plaintiff or extended the defendant's liability to any case not
previously recognized.
All admit that the Insular Government (the defendant) cannot be sued by an individual without its
consent. It is also admitted that the instant case is one against the Government. As the consent of the
Government to be sued by the plaintiff was entirely voluntary on its part, it is our duty to look carefully
into the terms of the consent, and render judgment accordingly.
The plaintiff was authorized to bring this action against the Government "in order to fix the responsibility
for the collision between his motorcycle and the ambulance of the General Hospital and to determine
the amount of the damages, if any, to which Mr. E. Merritt is entitled on account of said collision, . . . ."
These were the two questions submitted to the court for determination. The Act was passed "in order
that said questions may be decided." We have "decided" that the accident was due solely to the
negligence of the chauffeur, who was at the time an employee of the defendant, and we have also fixed
the amount of damages sustained by the plaintiff as a result of the collision. Does the Act authorize us to
hold that the Government is legally liable for that amount? If not, we must look elsewhere for such
authority, if it exists.
The Government of the Philippine Islands having been "modeled after the Federal and State
Governments in the United States," we may look to the decisions of the high courts of that country for
aid in determining the purpose and scope of Act No. 2457.
In the United States the rule that the state is not liable for the torts committed by its officers or agents
whom it employs, except when expressly made so by legislative enactment, is well settled. "The
Government," says Justice Story, "does not undertake to guarantee to any person the fidelity of the
officers or agents whom it employs, since that would involve it in all its operations in endless
embarrassments, difficulties and losses, which would be subversive of the public interest." (Claussen vs.
City of Luverne, 103 Minn., 491, citing U. S. vs. Kirkpatrick, 9 Wheat, 720; 6 L. Ed., 199; and Beers vs.
States, 20 How., 527; 15 L. Ed., 991.)
In the case of Melvin vs. State (121 Cal., 16), the plaintiff sought to recover damages from the state for
personal injuries received on account of the negligence of the state officers at the state fair, a state
institution created by the legislature for the purpose of improving agricultural and kindred industries; to
disseminate information calculated to educate and benefit the industrial classes; and to advance by such
means the material interests of the state, being objects similar to those sought by the public school
system. In passing upon the question of the state's liability for the negligent acts of its officers or agents,
the court said:
No claim arises against any government is favor of an individual, by reason of the
misfeasance, laches, or unauthorized exercise of powers by its officers or agents. (Citing
Gibbons vs. U. S., 8 Wall., 269; Clodfelter vs. State, 86 N. C., 51, 53; 41 Am. Rep., 440;
Chapman vs. State, 104 Cal., 690; 43 Am. St. Rep., 158; Green vs. State, 73 Cal., 29; Bourn vs.
Hart, 93 Cal., 321; 27 Am. St. Rep., 203; Story on Agency, sec. 319.)
As to the scope of legislative enactments permitting individuals to sue the state where the cause of
action arises out of either fort or contract, the rule is stated in 36 Cyc., 915, thus:
By consenting to be sued a state simply waives its immunity from suit. It does not thereby
concede its liability to plaintiff, or create any cause of action in his favor, or extend its liability
to any cause not previously recognized. It merely gives a remedy to enforce a preexisting
liability and submits itself to the jurisdiction of the court, subject to its right to interpose any
lawful defense.
In Apfelbacher vs. State (152 N. W., 144, advanced sheets), decided April 16, 1915, the Act of 1913,
which authorized the bringing of this suit, read:
SECTION 1. Authority is hereby given to George Apfelbacher, of the town of Summit,
Waukesha County, Wisconsin, to bring suit in such court or courts and in such form or forms
as he may be advised for the purpose of settling and determining all controversies which he
may now have with the State of Wisconsin, or its duly authorized officers and agents, relative
to the mill property of said George Apfelbacher, the fish hatchery of the State of Wisconsin on
the Bark River, and the mill property of Evan Humphrey at the lower end of Nagawicka Lake,
and relative to the use of the waters of said Bark River and Nagawicka Lake, all in the county
of Waukesha, Wisconsin.
In determining the scope of this act, the court said:
Plaintiff claims that by the enactment of this law the legislature admitted liability on the part
of the state for the acts of its officers, and that the suit now stands just as it would stand
 between private parties. It is difficult to see how the act does, or was intended to do, more
than remove the state's immunity from suit. It simply gives authority to commence suit for
the purpose of settling plaintiff's controversies with the estate. Nowhere in the act is there a
whisper or suggestion that the court or courts in the disposition of the suit shall depart from
well established principles of law, or that the amount of damages is the only question to be
The supreme court of Spain in defining the scope of this paragraph said:
settled. The act opened the door of the court to the plaintiff. It did not pass upon the
question of liability, but left the suit just where it would be in the absence of the state's
immunity from suit. If the Legislature had intended to change the rule that obtained in this
state so long and to declare liability on the part of the state, it would not have left so
important a matter to mere inference, but would have done so in express terms. (Murdock
Grate Co. vs. Commonwealth, 152 Mass., 28; 24 N.E., 854; 8 L. R. A., 399.)
In Denning vs. State (123 Cal., 316), the provisions of the Act of 1893, relied upon and considered, are as
follows:
All persons who have, or shall hereafter have, claims on contract or for negligence against the
state not allowed by the state board of examiners, are hereby authorized, on the terms and
conditions herein contained, to bring suit thereon against the state in any of the courts of this
state of competent jurisdiction, and prosecute the same to final judgment. The rules of
practice in civil cases shall apply to such suits, except as herein otherwise provided.
And the court said:
This statute has been considered by this court in at least two cases, arising under different
facts, and in both it was held that said statute did not create any liability or cause of action
against the state where none existed before, but merely gave an additional remedy to
enforce such liability as would have existed if the statute had not been enacted. (Chapman vs.
State, 104 Cal., 690; 43 Am. St. Rep., 158; Melvin vs. State, 121 Cal., 16.)
A statute of Massachusetts enacted in 1887 gave to the superior court "jurisdiction of all claims against
the commonwealth, whether at law or in equity," with an exception not necessary to be here
mentioned. In construing this statute the court, in Murdock Grate Co. vs. Commonwealth (152 Mass.,
28), said:
The statute we are discussing disclose no intention to create against the state a new and
heretofore unrecognized class of liabilities, but only an intention to provide a judicial tribunal
where well recognized existing liabilities can be adjudicated.
In Sipple vs. State (99 N. Y., 284), where the board of the canal claims had, by the terms of the statute of
New York, jurisdiction of claims for damages for injuries in the management of the canals such as the
plaintiff had sustained, Chief Justice Ruger remarks: "It must be conceded that the state can be made
liable for injuries arising from the negligence of its agents or servants, only by force of some positive
statute assuming such liability."
It being quite clear that Act No. 2457 does not operate to extend the Government's liability to any cause
not previously recognized, we will now examine the substantive law touching the defendant's liability for
the negligent acts of its officers, agents, and employees. Paragraph 5 of article 1903 of the Civil Code
reads:
The state is liable in this sense when it acts through a special agent, but not when the damage
should have been caused by the official to whom properly it pertained to do the act
performed, in which case the provisions of the preceding article shall be applicable.
That the obligation to indemnify for damages which a third person causes to another by his
fault or negligence is based, as is evidenced by the same Law 3, Title 15, Partida 7, on that the
person obligated, by his own fault or negligence, takes part in the act or omission of the third
party who caused the damage. It follows therefrom that the state, by virtue of such provisions
of law, is not responsible for the damages suffered by private individuals in consequence of
acts performed by its employees in the discharge of the functions pertaining to their office,
because neither fault nor even negligence can be presumed on the part of the state in the
organization of branches of public service and in the appointment of its agents; on the
contrary, we must presuppose all foresight humanly possible on its part in order that each
branch of service serves the general weal an that of private persons interested in its
operation. Between these latter and the state, therefore, no relations of a private nature
governed by the civil law can arise except in a case where the state acts as a judicial person
capable of acquiring rights and contracting obligations. (Supreme Court of Spain, January 7,
1898; 83 Jur. Civ., 24.)
That the Civil Code in chapter 2, title 16, book 4, regulates the obligations which arise out of
fault or negligence; and whereas in the first article thereof. No. 1902, where the general
principle is laid down that where a person who by an act or omission causes damage to
another through fault or negligence, shall be obliged to repair the damage so done, reference
is made to acts or omissions of the persons who directly or indirectly cause the damage, the
following articles refers to this persons and imposes an identical obligation upon those who
maintain fixed relations of authority and superiority over the authors of the damage, because
the law presumes that in consequence of such relations the evil caused by their own fault or
negligence is imputable to them. This legal presumption gives way to proof, however,
because, as held in the last paragraph of article 1903, responsibility for acts of third persons
ceases when the persons mentioned in said article prove that they employed all the diligence
of a good father of a family to avoid the damage, and among these persons, called upon to
answer in a direct and not a subsidiary manner, are found, in addition to the mother or the
father in a proper case, guardians and owners or directors of an establishment or enterprise,
the state, but not always, except when it acts through the agency of a special agent,
doubtless because and only in this case, the fault or negligence, which is the original basis of
this kind of objections, must be presumed to lie with the state.
That although in some cases the state might by virtue of the general principle set forth in
article 1902 respond for all the damage that is occasioned to private parties by orders or
resolutions which by fault or negligence are made by branches of the central administration
acting in the name and representation of the state itself and as an external expression of its
sovereignty in the exercise of its executive powers, yet said article is not applicable in the case
of damages said to have been occasioned to the petitioners by an executive official, acting in
the exercise of his powers, in proceedings to enforce the collections of certain property taxes
owing by the owner of the property which they hold in sublease.
That the responsibility of the state is limited by article 1903 to the case wherein it
acts through a special agent (and a special agent, in the sense in which these words are
employed, is one who receives a definite and fixed order or commission, foreign to the
exercise of the duties of his office if he is a special official) so that in representation of the
state and being bound to act as an agent thereof, he executes the trust confided to him. This
 concept does not apply to any executive agent who is an employee of the acting
administration and who on his own responsibility performs the functions which are inherent
in and naturally pertain to his office and which are regulated by law and the regulations."
(Supreme Court of Spain, May 18, 1904; 98 Jur. Civ., 389, 390.)

That according to paragraph 5 of article 1903 of the Civil Code and the principle laid down in a
decision, among others, of the 18th of May, 1904, in a damage case, the responsibility of the
state is limited to that which it contracts through a special agent, duly empowered by
a definite order or commission to perform some act or charged with some definite purpose
which gives rise to the claim, and not where the claim is based on acts or omissions imputable
to a public official charged with some administrative or technical office who can be held to
the proper responsibility in the manner laid down by the law of civil responsibility.
Consequently, the trial court in not so deciding and in sentencing the said entity to the
payment of damages, caused by an official of the second class referred to, has by erroneous
interpretation infringed the provisions of articles 1902 and 1903 of the Civil Code. (Supreme
Court of Spain, July 30, 1911; 122 Jur. Civ., 146.)

It is, therefore, evidence that the State (the Government of the Philippine Islands) is only liable,
according to the above quoted decisions of the Supreme Court of Spain, for the acts of its agents, officers
and employees when they act as special agents within the meaning of paragraph 5 of article 1903, supra,
and that the chauffeur of the ambulance of the General Hospital was not such an agent.

For the foregoing reasons, the judgment appealed from must be reversed, without costs in this instance.
Whether the Government intends to make itself legally liable for the amount of damages above set
forth, which the plaintiff has sustained by reason of the negligent acts of one of its employees, by
legislative enactment and by appropriating sufficient funds therefor, we are not called upon to
determine. This matter rests solely with the Legislature and not with the courts.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-4699 November 26, 1952
TEODORA SANTOS, assisted by her husband DONATO DE CASTRO, JOSEFINA SANTOS, assisted by her
husband Santiago Rodriguez and EMILIANA SANTOS, plaintiffs-appellants,
vs.
LEONCIO SANTOS, THE ADMINISTRATOR OF THE CIVIL AERONAUTICS ADMINISTRATION, and
NATIONAL AIRPORTS CORPORATION, defendants-appellees.
Ramon Diokno and Jose W. Diokno for appellants.
Office of the Solicitor General Pompeyo Diaz and Solicitor Esmeraldo Umali for appellees.
PADILLA, J.:
Teodora Santos and her nieces Emiliana and Josefina surnamed Santos complain that from 1945 to 1949
Leoncio Santos collected from the Army of the United States of America rentals for the use and
occupation of a parcel of land, known as Lot No. 4 of CAA Survey Plan AERO R-1, containing an area of
21,577 square meters, situated in the Municipality of Las Pias, Province of Rizal, more particularly
described in the complaint, belonging to them and Leoncio Santos in common by inheritance from their
ancestor, the late Paulino de los Santos, father of Teodora Santos and Leoncio Santos and grandfather of
Josefina Santos and Emiliana Santos, who died sometime in 1919, in the proportion of 1/7 undivided
share for Teodora Santos and 1/14 undivided share each for Josefina Santos and Emiliana Santos and 5/7
undivided share for Leoncio Santos, for the accounting of which and payment of their respective shares
therein they made a demand upon Leoncio Santos but the latter failed and refused to do so. They also
complain that they made a demand upon Leoncio Santos to have the lot partitioned among them but the
later refused to do so, he having sold the lot to the Administrator of the Civil Aeronautics Administration
on or about 13 May 1949, who is now in possession thereof, and that the sale of the lot made by Leoncio
Santos to the Administrator of the Civil Aeronautics Administration insofar as their shares in the lot are
concerned is null and void. Upon these allegations they pray that Leoncio Santos be ordered to render an
accounting of the rentals and such other fruits, products and benefits as he might have received from
1945 on and thereafter and to pay and deliver 1/7 thereof to Teodora Santos and 1/14 thereof each to
Josefina and Emiliana surname Santos; that the parcel of land be partitioned among them in the
proportion above-stated; that the purported sale by Leoncio Santos to the National Airports Corporation,
the predecessor to the Civil Aeronautics Administration, insofar as theirs shares are concerned be
declared null and void; that the Administrator of the Civil Aeronautics Administration be directed to
vacate the portions of the lot belonging to them a reasonable rental until after possession of their shares
in the lot shall have been restored to them and to pay damages and cost.
The Administrator of the Civil Aeronautics Administration moved to dismiss the complaint for lack of
jurisdiction and insufficiency of the complaint against him, invoking the case of Metropolitan
Transportation Service METRAN vs. Paredes, 45 Off. Gaz., 2835, where it has been held that the suit was
against the state which could not be brought without its consent. This motion was granted on the
ground that the Civil Aeronautics Administration not being a juridical person has no capacity to sue and
be sued and for that reason it cannot come under the jurisdiction of the court.
The principle that the state or its government cannot be sued without its consent has its root in the
juridical and practical notion that the state can do no wrong. Demandable and enforceable obligations
which may be the subject of judicial action come into being either by law, contract, quasi-contract, acts
or omissions punishable by law, acts which do not constitute or amount to a crime or a misdemeanor
known at common law as torts and in civil law as culpa aquiliana or extra contractual. An obligation or
liability of the state created by statute is enforceable against the officer or agent charged with the duty
to execute the law. If there should be anything demandable which had been paid or delivered to or
collected by officers or agents of the state without the authority of law, the action would not be against
the state but against the responsible officers or agents who received what was not due the state or
made the unauthorized collection. Punishable acts or omissions committed by officers or agents of the
state are crimes and violations of law perpetuated by such officers or agents and not by the state. The
same postulate may be applied to torts committed by officers or agents of the state. Nevertheless,
if, where and when the state or its government enters into a contract, through its officers or agents, in
furtherance of a legitimate aim and purpose and pursuant to constitutional legislative authority,
whereby mutual or reciprocal benefits accrue and rights and obligations arise therefrom, and if the law
granting the authority to enter into such contract does not provide for or name the officer against whom
action may be brought in the event of a breach thereof, the state itself may be sued even without its
consent, because by entering into a contract the sovereign state has descended to the level of the citizen
and its consent to be used is implied from the very act of entering into such contract. If the dignity of the
state, the sacredness of the institution, the respect for the government are to be preserved and the
dragging of its name in a suit to be prevented, the legislative department should name the officer or
agent against whom the action may be brought in the event of breach of the contract entered into under
its name and authority. And the omission or failure of the legislative department to do so is no obstacle
or impediment for an individual or citizen, who is aggrieved by the breach of the contract, to bring an
action against the state itself for the reasons already adverted to, to wit; the descent of the sovereign
state to the level of the individual or citizen with whom it entered into a contract and its consent to be
sued implied from the act of entering into such contract.
The action brought in this case is for partition and accounting of rental received by the defendant
Leoncio Santos from 1945 to December 1949 for the use and occupation of a parcel of land allegedly
owned in common by the plaintiffs and the defendant Leoncio Santos in the proportion stated in the
complaint. It is also averred that the National Airports Corporation created by Republic Act No. 224,
which had acquired the parcel of land from the defendant Leoncio Santos, was abolished by Executive
Order no. 365, series of 1950, and in its place and stead the Civil Aeronautics Administration was created
and took over all the assets and assumed all the liabilities of the abolished corporation. The Civil
Aeronautics Administration, even if it is not a juridical entity, cannot legally prevent a party or parties
from enforcing their propriety rights under the cloak or shield of lack of juridical personality, because it
took over all the powers and assumed all the obligations of the defunct corporation which had entered
into the contract in question. In National Airports Corporation vs. Teodoro *, G.R. No. L-5122, 30 April
1952, we held that the Civil Aeronautics Administration may be sued and that the principle of state
immunity from suit does not apply to it.
If the plaintiffs are not entitled to any share in the parcel of land sold by Leoncio Santos and acquired by
the National Airports Corporation, now in the possession of its successor, the Civil Aeronautics
Administration, the complaint would have to be dismissed. But if the right to such shares as claimed be
established, the plaintiffs should not and can be deprived of their proprietary rights in the parcel of land
sold by their co-owner without their knowledge and consent. Leoncio Santos would be responsible for
warranty and eviction to the Civil Aeronautics Administration. If the Torrens title does not show such
shares of the plaintiffs in the parcel of land sold by Leoncio Santos to the National Airports Corporation,
then the action would not lie against the National Airports Corporation or its successor, the Civil
Aeronautics Administration of land and of their natural or civil fruits of which they had been deprived by
the sale and conveyance of the whole parcel of land to the National Airports Corporation by Leoncio
Santos. The accounting of rentals received would not affect the Civil Aeronautics Administration,
because it would be the exclusive liability of Leoncio Santos.
The order appealed from dismissing the complaint as to the Civil Aeronautics Administration is reversed
and the case remanded to the lower court for further proceedings in accordance with law. No cost shall
be taxed.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-35645 May 22, 1985
UNITED STATES OF AMERICA, CAPT. JAMES E. GALLOWAY, WILLIAM I. COLLINS and ROBERT
GOHIER,petitioners,
vs.
HON. V. M. RUIZ, Presiding Judge of Branch XV, Court of First Instance of Rizal and ELIGIO DE GUZMAN
& CO., INC., respondents.
Sycip, Salazar, Luna & Manalo & Feliciano Law for petitioners.
Albert, Vergara, Benares, Perias & Dominguez Law Office for respondents.
ABAD SANTOS, J.:
This is a petition to review, set aside certain orders and restrain the respondent judge from trying Civil
Case No. 779M of the defunct Court of First Instance of Rizal.
The factual background is as follows:
At times material to this case, the United States of America had a naval base in Subic, Zambales. The
base was one of those provided in the Military Bases Agreement between the Philippines and the United
States.
Sometime in May, 1972, the United States invited the submission of bids for the following projects
1. Repair offender system, Alava Wharf at the U.S. Naval Station Subic Bay, Philippines.
2. Repair typhoon damage to NAS Cubi shoreline; repair typhoon damage to shoreline revetment,
NAVBASE Subic; and repair to Leyte Wharf approach, NAVBASE Subic Bay, Philippines.
Eligio de Guzman & Co., Inc. responded to the invitation and submitted bids. Subsequent thereto, the
company received from the United States two telegrams requesting it to confirm its price proposals and
for the name of its bonding company. The company complied with the requests. [In its complaint, the
company alleges that the United States had accepted its bids because "A request to confirm a price
proposal confirms the acceptance of a bid pursuant to defendant United States' bidding practices."
(Rollo, p. 30.) The truth of this allegation has not been tested because the case has not reached the trial
stage.]
In June, 1972, the company received a letter which was signed by Wilham I. Collins, Director, Contracts
Division, Naval Facilities Engineering Command, Southwest Pacific, Department of the Navy of the United
States, who is one of the petitioners herein. The letter said that the company did not qualify to receive
an award for the projects because of its previous unsatisfactory performance rating on a repair contract
for the sea wall at the boat landings of the U.S. Naval Station in Subic Bay. The letter further said that the
projects had been awarded to third parties. In the abovementioned Civil Case No. 779-M, the company
sued the United States of America and Messrs. James E. Galloway, William I. Collins and Robert Gohier all
members of the Engineering Command of the U.S. Navy. The complaint is to order the defendants to
allow the plaintiff to perform the work on the projects and, in the event that specific performance was
no longer possible, to order the defendants to pay damages. The company also asked for the issuance of
a writ of preliminary injunction to restrain the defendants from entering into contracts with third parties
for work on the projects.
The defendants entered their special appearance for the purpose only of questioning the jurisdiction of
this court over the subject matter of the complaint and the persons of defendants, the subject matter of
the complaint being acts and omissions of the individual defendants as agents of defendant United
States of America, a foreign sovereign which has not given her consent to this suit or any other suit for
the causes of action asserted in the complaint." (Rollo, p. 50.)
Subsequently the defendants filed a motion to dismiss the complaint which included an opposition to
the issuance of the writ of preliminary injunction. The company opposed the motion. The trial court
denied the motion and issued the writ. The defendants moved twice to reconsider but to no avail. Hence
the instant petition which seeks to restrain perpetually the proceedings in Civil Case No. 779-M for lack
of jurisdiction on the part of the trial court.
The petition is highly impressed with merit.
The traditional rule of State immunity exempts a State from being sued in the courts of another State
without its consent or waiver. This rule is a necessary consequence of the principles of independence
and equality of States. However, the rules of International Law are not petrified; they are constantly
developing and evolving. And because the activities of states have multiplied, it has been necessary to
distinguish them-between sovereign and governmental acts (jure imperii) and private, commercial and
proprietary acts (jure gestionis). The result is that State immunity now extends only to acts jure imperil
The restrictive application of State immunity is now the rule in the United States, the United Kingdom
and other states in western Europe. (See Coquia and Defensor Santiago, Public International Law, pp.
207-209 [1984].)
The respondent judge recognized the restrictive doctrine of State immunity when he said in his Order
denying the defendants' (now petitioners) motion: " A distinction should be made between a strictly
governmental function of the sovereign state from its private, proprietary or non- governmental acts
(Rollo, p. 20.) However, the respondent judge also said: "It is the Court's considered opinion that
entering into a contract for the repair of wharves or shoreline is certainly not a governmental function
altho it may partake of a public nature or character. As aptly pointed out by plaintiff's counsel in his reply
citing the ruling in the case of Lyons, Inc., [104 Phil. 594 (1958)], and which this Court quotes with
approval, viz.:
It is however contended that when a sovereign state enters into a contract with a
private person, the state can be sued upon the theory that it has descended to the
level of an individual from which it can be implied that it has given its consent to
be sued under the contract. ...
xxx xxx xxx
 We agree to the above contention, and considering that the United States
government, through its agency at Subic Bay, entered into a contract with
appellant for stevedoring and miscellaneous labor services within the Subic Bay
Area, a U.S. Naval Reservation, it is evident that it can bring an action before our
courts for any contractual liability that that political entity may assume under the
contract. The trial court, therefore, has jurisdiction to entertain this case ... (Rollo,
pp. 20-21.)
The reliance placed on Lyons by the respondent judge is misplaced for the following reasons:
In Harry Lyons, Inc. vs. The United States of America, supra, plaintiff brought suit in the Court of First
Instance of Manila to collect several sums of money on account of a contract between plaintiff and
defendant. The defendant filed a motion to dismiss on the ground that the court had no jurisdiction over
defendant and over the subject matter of the action. The court granted the motion on the grounds that:
(a) it had no jurisdiction over the defendant who did not give its consent to the suit; and (b) plaintiff
failed to exhaust the administrative remedies provided in the contract. The order of dismissal was
elevated to this Court for review.
In sustaining the action of the lower court, this Court said:
It appearing in the complaint that appellant has not complied with the procedure
laid down in Article XXI of the contract regarding the prosecution of its claim
against the United States Government, or, stated differently, it has failed to first
exhaust its administrative remedies against said Government, the lower court
acted properly in dismissing this case.(At p. 598.)
America; that any judgment for back or Increased rentals or damages will have to
be paid not by defendants Moore and Tillman and their 64 co-defendants but by
the said U.S. Government. On the basis of the ruling in the case of Land vs. Dollar
already cited, and on what we have already stated, the present action must be
considered as one against the U.S. Government. It is clear hat the courts of the
Philippines including the Municipal Court of Manila have no jurisdiction over the
present case for unlawful detainer. The question of lack of jurisdiction was raised
and interposed at the very beginning of the action. The U.S. Government has not ,
given its consent to the filing of this suit which is essentially against her, though
not in name. Moreover, this is not only a case of a citizen filing a suit against his
own Government without the latter's consent but it is of a citizen filing an action
against a foreign government without said government's consent, which renders
more obvious the lack of jurisdiction of the courts of his country. The principles of
law behind this rule are so elementary and of such general acceptance that we
deem it unnecessary to cite authorities in support thereof. (At p. 323.)
In Syquia,the United States concluded contracts with private individuals but the contracts
notwithstanding the States was not deemed to have given or waived its consent to be sued for the
reason that the contracts were forjure imperii and not for jure gestionis.
WHEREFORE, the petition is granted; the questioned orders of the respondent judge are set aside and
Civil Case No. is dismissed. Costs against the private respondent.

It can thus be seen that the statement in respect of the waiver of State immunity from suit was purely
gratuitous and, therefore, obiter so that it has no value as an imperative authority.

The restrictive application of State immunity is proper only when the proceedings arise out of
commercial transactions of the foreign sovereign, its commercial activities or economic affairs. Stated
differently, a State may be said to have descended to the level of an individual and can thus be deemed
to have tacitly given its consent to be sued only when it enters into business contracts. It does not apply
where the contract relates to the exercise of its sovereign functions. In this case the projects are an
integral part of the naval base which is devoted to the defense of both the United States and the
Philippines, indisputably a function of the government of the highest order; they are not utilized for nor
dedicated to commercial or business purposes.

That the correct test for the application of State immunity is not the conclusion of a contract by a State
but the legal nature of the act is shown in Syquia vs. Lopez, 84 Phil. 312 (1949). In that case the plaintiffs
leased three apartment buildings to the United States of America for the use of its military officials. The
plaintiffs sued to recover possession of the premises on the ground that the term of the leases had
expired. They also asked for increased rentals until the apartments shall have been vacated.

The defendants who were armed forces officers of the United States moved to dismiss the suit for lack of
jurisdiction in the part of the court. The Municipal Court of Manila granted the motion to dismiss;
sustained by the Court of First Instance, the plaintiffs went to this Court for review on certiorari. In
denying the petition, this Court said:

On the basis of the foregoing considerations we are of the belief and we hold that
the real party defendant in interest is the Government of the United States of
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 101949 December 1, 1994

THE HOLY SEE, petitioner,

vs.
THE HON. ERIBERTO U. ROSARIO, JR., as Presiding Judge of the Regional Trial Court of Makati, Branch
61 and STARBRIGHT SALES ENTERPRISES, INC., respondents.

Padilla Law Office for petitioner.

Siguion Reyna, Montecillo & Ongsiako for private respondent.

QUIASON, J.:

This is a petition for certiorari under Rule 65 of the Revised Rules of Court to reverse and set aside the
Orders dated June 20, 1991 and September 19, 1991 of the Regional Trial Court, Branch 61, Makati,
Metro Manila in Civil Case No. 90-183.

The Order dated June 20, 1991 denied the motion of petitioner to dismiss the complaint in Civil Case No.
90-183, while the Order dated September 19, 1991 denied the motion for reconsideration of the June
20,1991 Order.

Petitioner is the Holy See who exercises sovereignty over the Vatican City in Rome, Italy, and is
represented in the Philippines by the Papal Nuncio.

Private respondent, Starbright Sales Enterprises, Inc., is a domestic corporation engaged in the real
estate business.

This petition arose from a controversy over a parcel of land consisting of 6,000 square meters (Lot 5-A,
Transfer Certificate of Title No. 390440) located in the Municipality of Paraaque, Metro Manila and
registered in the name of petitioner.

Said Lot 5-A is contiguous to Lots 5-B and 5-D which are covered by Transfer Certificates of Title Nos.
271108 and 265388 respectively and registered in the name of the Philippine Realty Corporation (PRC).

The three lots were sold to Ramon Licup, through Msgr. Domingo A. Cirilos, Jr., acting as agent to the
sellers. Later, Licup assigned his rights to the sale to private respondent.
In view of the refusal of the squatters to vacate the lots sold to private respondent, a dispute arose as to
who of the parties has the responsibility of evicting and clearing the land of squatters. Complicating the
relations of the parties was the sale by petitioner of Lot 5-A to Tropicana Properties and Development
Corporation (Tropicana).
I
On January 23, 1990, private respondent filed a complaint with the Regional Trial Court, Branch 61,
Makati, Metro Manila for annulment of the sale of the three parcels of land, and specific performance
and damages against petitioner, represented by the Papal Nuncio, and three other defendants: namely,
Msgr. Domingo A. Cirilos, Jr., the PRC and Tropicana (Civil Case No.
90-183).
The complaint alleged that: (1) on April 17, 1988, Msgr. Cirilos, Jr., on behalf of petitioner and the PRC,
agreed to sell to Ramon Licup Lots 5-A, 5-B and 5-D at the price of P1,240.00 per square meters; (2) the
agreement to sell was made on the condition that earnest money of P100,000.00 be paid by Licup to the
sellers, and that the sellers clear the said lots of squatters who were then occupying the same; (3) Licup
paid the earnest money to Msgr. Cirilos; (4) in the same month, Licup assigned his rights over the
property to private respondent and informed the sellers of the said assignment; (5) thereafter, private
respondent demanded from Msgr. Cirilos that the sellers fulfill their undertaking and clear the property
of squatters; however, Msgr. Cirilos informed private respondent of the squatters' refusal to vacate the
lots, proposing instead either that private respondent undertake the eviction or that the earnest money
be returned to the latter; (6) private respondent counterproposed that if it would undertake the eviction
of the squatters, the purchase price of the lots should be reduced from P1,240.00 to P1,150.00 per
square meter; (7) Msgr. Cirilos returned the earnest money of P100,000.00 and wrote private
respondent giving it seven days from receipt of the letter to pay the original purchase price in cash; (8)
private respondent sent the earnest money back to the sellers, but later discovered that on March 30,
1989, petitioner and the PRC, without notice to private respondent, sold the lots to Tropicana, as
evidenced by two separate Deeds of Sale, one over Lot 5-A, and another over Lots 5-B and 5-D; and that
the sellers' transfer certificate of title over the lots were cancelled, transferred and registered in the
name of Tropicana; (9) Tropicana induced petitioner and the PRC to sell the lots to it and thus enriched
itself at the expense of private respondent; (10) private respondent demanded the rescission of the sale
to Tropicana and the reconveyance of the lots, to no avail; and (11) private respondent is willing and able
to comply with the terms of the contract to sell and has actually made plans to develop the lots into a
townhouse project, but in view of the sellers' breach, it lost profits of not less than P30,000.000.00.
Private respondent thus prayed for: (1) the annulment of the Deeds of Sale between petitioner and the
PRC on the one hand, and Tropicana on the other; (2) the reconveyance of the lots in question; (3)
specific performance of the agreement to sell between it and the owners of the lots; and (4) damages.
On June 8, 1990, petitioner and Msgr. Cirilos separately moved to dismiss the complaint petitioner for
lack of jurisdiction based on sovereign immunity from suit, and Msgr. Cirilos for being an improper party.
An opposition to the motion was filed by private respondent.
On June 20, 1991, the trial court issued an order denying, among others, petitioner's motion to dismiss
after finding that petitioner "shed off [its] sovereign immunity by entering into the business contract in
question" (Rollo, pp. 20-21).
On July 12, 1991, petitioner moved for reconsideration of the order. On August 30, 1991, petitioner filed
a "Motion for a Hearing for the Sole Purpose of Establishing Factual Allegation for claim of Immunity as a
Jurisdictional Defense." So as to facilitate the determination of its defense of sovereign immunity,
petitioner prayed that a hearing be conducted to allow it to establish certain facts upon which the said
defense is based. Private respondent opposed this motion as well as the motion for reconsideration.
On October 1, 1991, the trial court issued an order deferring the resolution on the motion for
reconsideration until after trial on the merits and directing petitioner to file its answer (Rollo, p. 22).
Petitioner forthwith elevated the matter to us. In its petition, petitioner invokes the privilege of
sovereign immunity only on its own behalf and on behalf of its official representative, the Papal Nuncio.
On December 9, 1991, a Motion for Intervention was filed before us by the Department of Foreign
Affairs, claiming that it has a legal interest in the outcome of the case as regards the diplomatic immunity
of petitioner, and that it "adopts by reference, the allegations contained in the petition of the Holy See
insofar as they refer to arguments relative to its claim of sovereign immunity from suit" (Rollo, p. 87).
Private respondent opposed the intervention of the Department of Foreign Affairs. In compliance with
the resolution of this Court, both parties and the Department of Foreign Affairs submitted their
respective memoranda.
II
A preliminary matter to be threshed out is the procedural issue of whether the petition
for certiorari under Rule 65 of the Revised Rules of Court can be availed of to question the order denying
petitioner's motion to dismiss. The general rule is that an order denying a motion to dismiss is not
reviewable by the appellate courts, the remedy of the movant being to file his answer and to proceed
with the hearing before the trial court. But the general rule admits of exceptions, and one of these is
when it is very clear in the records that the trial court has no alternative but to dismiss the complaint
(Philippine National Bank v. Florendo, 206 SCRA 582 [1992]; Zagada v. Civil Service Commission, 216
SCRA 114 [1992]. In such a case, it would be a sheer waste of time and energy to require the parties to
undergo the rigors of a trial.
The other procedural question raised by private respondent is the personality or legal interest of the
Department of Foreign Affairs to intervene in the case in behalf of the Holy See (Rollo, pp. 186-190).
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. InWorld 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 and Memorandum as amicus curiae.
In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved with
this Court to be allowed to intervene on the side of petitioner. The Court allowed the said Department to
file its memorandum in support of petitioner's claim of sovereign immunity.
In some cases, the defense of sovereign immunity was submitted directly to the local courts by the
respondents through their private counsels (Raquiza v. Bradford, 75 Phil. 50 [1945]; Miquiabas v.
Philippine-Ryukyus Command, 80 Phil. 262 [1948]; United States of America v. Guinto, 182 SCRA 644
[1990] and companion cases). In cases where the foreign states bypass the Foreign Office, the courts can
inquire into the facts and make their own determination as to the nature of the acts and transactions
involved.
III
The burden of the petition is that respondent trial court has no jurisdiction over petitioner, being a
foreign state enjoying sovereign immunity. On the other hand, private respondent insists that the
doctrine of non-suability is not anymore absolute and that petitioner has divested itself of such a cloak
when, of its own free will, it entered into a commercial transaction for the sale of a parcel of land located
in the Philippines.
A. The Holy See
Before we determine the issue of petitioner's non-suability, a brief look into its status as a sovereign
state is in order.
Before the annexation of the Papal States by Italy in 1870, the Pope was the monarch and he, as the Holy
See, was considered a subject of International Law. With the loss of the Papal States and the limitation of
the territory under the Holy See to an area of 108.7 acres, the position of the Holy See in International
Law became controversial (Salonga and Yap, Public International Law 36-37 [1992]).
In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy recognized the exclusive
dominion and sovereign jurisdiction of the Holy See over the Vatican City. It also recognized the right of
the Holy See to receive foreign diplomats, to send its own diplomats to foreign countries, and to enter
into treaties according to International Law (Garcia, Questions and Problems In International Law, Public
and Private 81 [1948]).
The Lateran Treaty established the statehood of the Vatican City "for the purpose of assuring to the Holy
See absolute and visible independence and of guaranteeing to it indisputable sovereignty also in the field
of international relations" (O'Connell, I International Law 311 [1965]).
In view of the wordings of the Lateran Treaty, it is difficult to determine whether the statehood is vested
in the Holy See or in the Vatican City. Some writers even suggested that the treaty created two
international persons the Holy See and Vatican City (Salonga and Yap, supra, 37).
The Vatican City fits into none of the established categories of states, and the attribution to it of
"sovereignty" must be made in a sense different from that in which it is applied to other states (Fenwick,
International Law 124-125 [1948]; Cruz, International Law 37 [1991]). In a community of national states,
the Vatican City represents an entity organized not for political but for ecclesiastical purposes and
international objects. Despite its size and object, the Vatican City has an independent government of its
own, with the Pope, who is also head of the Roman Catholic Church, as the Holy See or Head of State, in
conformity with its traditions, and the demands of its mission in the world. Indeed, the world-wide
interests and activities of the Vatican City are such as to make it in a sense an "international state"
(Fenwick, supra., 125; Kelsen, Principles of International Law 160 [1956]).
One authority wrote that the recognition of the Vatican City as a state has significant implication that
it is possible for any entity pursuing objects essentially different from those pursued by states to be
invested with international personality (Kunz, The Status of the Holy See in International Law, 46 The
American Journal of International Law 308 [1952]).
Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy See
and not in the name of the Vatican City, one can conclude that in the Pope's own view, it is the Holy See
that is the international person.
The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The Holy
See, through its Ambassador, the Papal Nuncio, has had diplomatic representations with the Philippine
government since 1957 (Rollo, p. 87). This appears to be the universal practice in international relations.
B. Sovereign Immunity
As expressed in Section 2 of Article II of the 1987 Constitution, we have adopted the generally accepted
principles of International Law. Even without this affirmation, such principles of International Law are
deemed incorporated as part of the law of the land as a condition and consequence of our admission in
the society of nations (United States of America v. Guinto, 182 SCRA 644 [1990]).
There are two conflicting concepts of sovereign immunity, each widely held and firmly established.
According to the classical or absolute theory, a sovereign cannot, without its consent, be made a
respondent in the courts of another sovereign. According to the newer or restrictive theory, the
immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a state, but
not with regard to private acts or acts jure gestionis
(United States of America v. Ruiz, 136 SCRA 487 [1987]; Coquia and Defensor-Santiago, Public
International Law 194 [1984]).
Some states passed legislation to serve as guidelines for the executive or judicial determination when an
act may be considered as jure gestionis. The United States passed the Foreign Sovereign Immunities Act
of 1976, which defines a commercial activity as "either a regular course of commercial conduct or a
particular commercial transaction or act." Furthermore, the law declared that the "commercial character
of the activity shall be determined by reference to the nature of the course of conduct or particular
transaction or act, rather than by reference to its purpose." The Canadian Parliament enacted in 1982 an
Act to Provide For State Immunity in Canadian Courts. The Act defines a "commercial activity" as any
particular transaction, act or conduct or any regular course of conduct that by reason of its nature, is of a
"commercial character."
The restrictive theory, which is intended to be a solution to the host of problems involving the issue of
sovereign immunity, has created problems of its own. Legal treatises and the decisions in countries
which follow the restrictive theory have difficulty in characterizing whether a contract of a sovereign
state with a private party is an act jure gestionis or an act jure imperii.
The restrictive theory came about because of the entry of sovereign states into purely commercial
activities remotely connected with the discharge of governmental functions. This is particularly true with
respect to the Communist states which took control of nationalized business activities and international
trading.
This Court has considered the following transactions by a foreign state with private parties as acts jure
imperii: (1) the lease by a foreign government of apartment buildings for use of its military officers
(Syquia v. Lopez, 84 Phil. 312 [1949]; (2) the conduct of public bidding for the repair of a wharf at a
United States Naval Station (United States of America v. Ruiz, supra.); and (3) the change of employment
status of base employees (Sanders v. Veridiano, 162 SCRA 88 [1988]).
On the other hand, this Court has considered the following transactions by a foreign state with private
parties as acts jure gestionis: (1) the hiring of a cook in the recreation center, consisting of three
restaurants, a cafeteria, a bakery, a store, and a coffee and pastry shop at the John Hay Air Station in
Baguio City, to cater to American servicemen and the general public (United States of America v.
Rodrigo, 182 SCRA 644 [1990]); and (2) the bidding for the operation of barber shops in Clark Air Base in
Angeles City (United States of America v. Guinto, 182 SCRA 644 [1990]). The operation of the restaurants
and other facilities open to the general public is undoubtedly for profit as a commercial and not a
governmental activity. By entering into the employment contract with the cook in the discharge of its
proprietary function, the United States government impliedly divested itself of its sovereign immunity
from suit.
In the absence of legislation defining what activities and transactions shall be considered "commercial"
and as constituting acts jure gestionis, we have to come out with our own guidelines, tentative they may
be.
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 it is an act jure imperii, especially when it is
not undertaken for gain or profit.
As held in United States of America v. Guinto, (supra):
There is no question that the United States of America, like any other state, will be
deemed to have impliedly waived its non-suability if it has entered into a contract
in its proprietary or private capacity. It is only when the contract involves its
sovereign or governmental capacity that no such waiver may be implied.
In the case at bench, if petitioner has bought and sold lands in the ordinary course of a real estate
business, surely the said transaction can be categorized as an act jure gestionis. However, petitioner has
denied that the acquisition and subsequent disposal of Lot 5-A were made for profit but claimed that it
acquired said property for the site of its mission or the Apostolic Nunciature in the Philippines. Private
respondent failed to dispute said claim.
Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The donation was
made not for commercial purpose, but for the use of petitioner to construct thereon the official place of
residence of the Papal Nuncio. The right of a foreign sovereign to acquire property, real or personal, in a
receiving state, necessary for the creation and maintenance of its diplomatic mission, is recognized in the
1961 Vienna Convention on Diplomatic Relations (Arts. 20-22). This treaty was concurred in by the
Philippine Senate and entered into force in the Philippines on November 15, 1965.
In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil and
administrative jurisdiction of the receiving state over any real action relating to private immovable
property situated in the territory of the receiving state which the envoy holds on behalf of the sending
state for the purposes of the mission. If this immunity is provided for a diplomatic envoy, with all the
more reason should immunity be recognized as regards the sovereign itself, which in this case is the Holy
See.
The decision to transfer the property and the subsequent disposal thereof are likewise clothed with a
governmental character. Petitioner did not sell Lot
5-A for profit or gain. It merely wanted to dispose off the same because the squatters living thereon
made it almost impossible for petitioner to use it for the purpose of the donation. The fact that squatters
have occupied and are still occupying the lot, and that they stubbornly refuse to leave the premises, has
been admitted by private respondent in its complaint (Rollo, pp. 26, 27).
The issue of petitioner's non-suability can be determined by the trial court without going to trial in the
light of the pleadings, particularly the admission of private respondent. Besides, the privilege of
sovereign immunity in this case was sufficiently established by the Memorandum and Certification of the
Department of Foreign Affairs. As the department tasked with the conduct of the Philippines' foreign
relations (Administrative Code of 1987, Book IV, Title I, Sec. 3), the Department of Foreign Affairs has
formally intervened in this case and officially certified that the Embassy of the Holy See is a duly
accredited diplomatic mission to the Republic of the Philippines exempt from local jurisdiction and
entitled to all the rights, privileges and immunities of a diplomatic mission or embassy in this country
(Rollo, pp. 156-157). The determination of the executive arm of government that a state or
instrumentality is entitled to sovereign or diplomatic immunity is a political question that is conclusive
upon the courts (International Catholic Migration Commission v. Calleja, 190 SCRA 130 [1990]). Where
the plea of immunity is recognized and affirmed by the executive branch, it is the duty of the courts to
accept this claim so as not to embarrass the executive arm of the government in conducting the
country's foreign relations (World Health Organization v. Aquino, 48 SCRA 242 [1972]). As
in International Catholic Migration Commission and in World Health Organization, we abide by the
certification of the Department of Foreign Affairs.
Ordinarily, the procedure would be to remand the case and order the trial court to conduct a hearing to
establish the facts alleged by petitioner in its motion. In view of said certification, such procedure would
however be pointless and unduly circuitous (Ortigas & Co. Ltd. Partnership v. Judge Tirso Velasco, G.R.
No. 109645, July 25, 1994).
IV
Private respondent is not left without any legal remedy for the redress of its grievances. Under both
Public International Law and Transnational Law, a person who feels aggrieved by the acts of a foreign
sovereign can ask his own government to espouse his cause through diplomatic channels.
Private respondent can ask the Philippine government, through the Foreign Office, to espouse its claims
against the Holy See. Its first task is to persuade the Philippine government to take up with the Holy See
the validity of its claims. Of course, the Foreign Office shall first make a determination of the impact of its
espousal on the relations between the Philippine government and the Holy See (Young, Remedies of
Private Claimants Against Foreign States, Selected Readings on Protection by Law of Private Foreign
Investments 905, 919 [1964]). Once the Philippine government decides to espouse the claim, the latter
ceases to be a private cause.

According to the Permanent Court of International Justice, the forerunner of the International Court of
Justice:

By taking up the case of one of its subjects and by reporting to diplomatic action or
international judicial proceedings on his behalf, a State is in reality asserting its
own rights its right to ensure, in the person of its subjects, respect for the rules
of international law (The Mavrommatis Palestine Concessions, 1 Hudson, World
Court Reports 293, 302 [1924]).

WHEREFORE, the petition for certiorari is GRANTED and the complaint in Civil Case No. 90-183 against
petitioner is DISMISSED.

SO ORDERED.
Republic of the Philippines a.) immunity from legal process with respect to acts performed by them in their
SUPREME COURT official capacity except when the Bank waives the immunity.
Manila
the immunity mentioned therein is not absolute, but subject to the exception that the acts was done in
FIRST DIVISION "official capacity." It is therefore necessary to determine if petitioner's case falls within the ambit of
Section 45(a). Thus, the prosecution should have been given the chance to rebut the DFA protocol and it
must be accorded the opportunity to present its controverting evidence, should it so desire.
G.R. No. 125865 January 28, 2000

Third, slandering a person could not possibly be covered by the immunity agreement because our laws
JEFFREY LIANG (HUEFENG), petitioner,
do not allow the commission of a crime, such as defamation, in the name of official duty. The imputation
vs.
of theft is ultra vires and cannot be part of official functions. It is well-settled principle of law that a
PEOPLE OF THE PHILIPPINES, respondent.
public official may be liable in his personal private capacity for whatever damage he may have caused by
his act done with malice or in bad faith or beyond the scope of his authority or jurisdiction.4 It appears
YNARES-SANTIAGO, J.: that even the government's chief legal counsel, the Solicitor General, does not support the stand taken
by petitioner and that of the DFA.
Petitioner is an economist working with the Asian Development Bank (ADB). Sometime in 1994, for
allegedly uttering defamatory words against fellow ADB worker Joyce Cabal, he was charged before the Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic agent, assuming petitioner is
Metropolitan Trial Court (MeTC) of Mandaluyong City with two counts of grave oral defamation such, enjoys immunity from criminal jurisdiction of the receiving state except in the case of an action
docketed as Criminal Cases Nos. 53170 and 53171. Petitioner was arrested by virtue of a warrant issued relating to any professional or commercial activity exercised by the diplomatic agent in the receiving
by the MeTC. After fixing petitioner's bail at P2,400.00 per criminal charge, the MeTC released him to the state outside his official functions.5 As already mentioned above, the commission of a crime is not part of
custody of the Security Officer of ADB. The next day, the MeTC judge received an "office of protocol" official duty.
from the Department of Foreign Affairs (DFA) stating that petitioner is covered by immunity from legal
process under Section 45 of the Agreement between the ADB and the Philippine Government regarding
Finally, on the contention that there was no preliminary investigation conducted, suffice it to say that
the Headquarters of the ADB (hereinafter Agreement) in the country. Based on the said protocol
preliminary investigation is not a matter of right in cases cognizable by the MeTC such as the one at
communication that petitioner is immune from suit, the MeTC judge without notice to the prosecution
bar.6 Being purely a statutory right, preliminary investigation may be invoked only when specifically
dismissed the two criminal cases. The latter filed a motion for reconsideration which was opposed by the
granted by law.7 The rule on the criminal procedure is clear that no preliminary investigation is required
DFA. When its motion was denied, the prosecution filed a petition for certiorari and mandamus with the
in cases falling within the jurisdiction of the MeTC.8 Besides the absence of preliminary investigation
Regional Trial Court (RTC) of Pasig City which set aside the MeTC rulings and ordered the latter court to
does not affect the court's jurisdiction nor does it impair the validity of the information or otherwise
enforce the warrant of arrest it earlier issued. After the motion for reconsideration was denied,
render it defective.9
petitioner elevated the case to this Court via a petition for review arguing that he is covered by immunity
under the Agreement and that no preliminary investigation was held before the criminal cases were filed
in court.1wphi1.nt WHEREFORE, the petition is DENIED.

The petition is not impressed with merit. SO ORDERED.1wphi1.nt

First, courts cannot blindly adhere and take on its face the communication from the DFA that petitioner Davide, Jr., C.J., Puno, Kapunan and Pardo, JJ., concur.
is covered by any immunity. The DFA's determination that a certain person is covered by immunity is
only preliminary which has no binding effect in courts. In receiving ex-parte the DFA's advice and in motu
propio dismissing the two criminal cases without notice to the prosecution, the latter's right to due
process was violated. It should be noted that due process is a right of the accused as much as it is of the
prosecution. The needed inquiry in what capacity petitioner was acting at the time of the alleged
utterances requires for its resolution evidentiary basis that has yet to be presented at the proper
time.1 At any rate, it has been ruled that the mere invocation of the immunity clause does not ipso
facto result in the dropping of the charges.2

Second, under Section 45 of the Agreement which provides:

Officers and staff of the Bank including for the purpose of this Article experts and consultants
performing missions for the Bank shall enjoy the following privileges and immunities:
Republic of the Philippines On January 2, 1991, private respondent IRRI, through counsel, wrote the Labor Arbiter to inform him
SUPREME COURT that the Institute enjoys immunity from legal process by virtue of Article 3 of Presidential Decree No.
Manila 1620, 5 and that it invokes such diplomatic immunity and privileges as an international organization in
the instant case filed by petitioner, not having waived the same. 6
THIRD DIVISION
IRRI likewise wrote in the same tenor to the Regional Director of the Department of Labor and
Employment. 7

While admitting IRRI's defense of immunity, the Labor Arbiter, nonetheless, cited an Order issued by the
G.R. No. 106483 May 22, 1995
Institute on August 13, 1991 to the effect that "in all cases of termination, respondent IRRI waives its
immunity," 8 and, accordingly, considered the defense of immunity no longer a legal obstacle in resolving
ERNESTO L. CALLADO, petitioner, the case. The dispositive portion of the Labor arbiter's decision dated October 31, 1991, reads:
vs.
INTERNATIONAL RICE RESEARCH INSTITUTE, respondent.
WHEREFORE, premises considered, judgment is hereby rendered ordering
respondent to reinstate complainant to his former position without loss or (sic)
seniority rights and privileges within five (5) days from receipt hereof and to pay
his full backwages from March 7, 1990 to October 31, 1991, in the total amount of
ROMERO, J.: P83,048.75 computed on the basis of his last monthly salary. 9

Did the International Rice Research Institute (IRRI) waive its immunity from suit in this dispute which The NLRC found merit in private respondent' s appeal and, finding that IRRI did not waive its immunity,
arose from an employer-employee relationship? ordered the aforesaid decision of the Labor Arbiter set aside and the complaint dismissed. 10

We rule in the negative and vote to dismiss the petition.
Ernesto Callado, petitioner, was employed as a driver at the IRRI from April 11, 1983 to December 14,
1990. On February 11, 1990, while driving an IRRI vehicle on an official trip to the Ninoy Aquino
International Airport and back to the IRRI, petitioner figured in an accident.
Petitioner was informed of the findings of a preliminary investigation conducted by the IRRI's Human
Resource Development Department Manager in a Memorandum dated March 5, 1990. 1 In view of the
aforesaid findings, he was charged with:
Hence, this petition where it is contended that the immunity of the IRRI as an international organization
granted by Article 3 of Presidential Decree No. 1620 may not be invoked in the case at bench inasmuch
as it waived the same by virtue of its Memorandum on "Guidelines on the handling of dismissed
employees in relation to P.D. 1620." 11
It is also petitioner's position that a dismissal of his complaint before the Labor Arbiter leaves him no
other remedy through which he can seek redress. He further states that since the investigation of his
case was not referred to the Council of IRRI Employees and Management (CIEM), he was denied his
constitutional right to due process.

We find no merit in petitioner's arguments.

(1) Driving an institute vehicle while on official duty under the influence of liquor;

IRRI's immunity from suit is undisputed.

(2) Serious misconduct consisting of your failure to report to your supervisors the
failure of your vehicle to start because of a problem with the car battery which,
you alleged, required you to overstay in Manila for more than six (6) hours,
whereas, had you reported the matter to IRRI, Los Baos by telephone, your
problem could have been solved within one or two hours;
(3) Gross and habitual neglect of your duties. 2
Presidential Decree No. 1620, Article 3 provides:
Art. 3. Immunity from Legal Process. The Institute shall enjoy immunity from any
penal, civil and administrative proceedings, except insofar as that immunity has
been expressly waived by the Director-General of the Institute or his authorized
representatives.

In a Memorandum dated March 9, 1990, petitioner submitted his answer and defenses to the charges
against him.3 After evaluating petitioner's answer, explanations and other evidence, IRRI issued a Notice
of Termination to petitioner on December 7, 1990. 4
Thereafter, petitioner filed a complaint on December 19, 1990 before the Labor Arbiter for illegal
dismissal, illegal suspension and indemnity pay with moral and exemplary damages and attorney's fees.
In the case of International Catholic Migration Commission v. Hon. Calleja, et al. and Kapisanan ng
Manggagawa at TAC sa IRRI v. Secretary of Labor and Employment and IRRI, 12 the Court upheld the
constitutionality of the aforequoted law. After the Court noted the letter of the Acting Secretary of
Foreign Affairs to the Secretary of Labor dated June 17, 1987, where the immunity of IRRI from the
jurisdiction of the Department of Labor and Employment was sustained, the Court stated that this
opinion constituted "a categorical recognition by the Executive Branch of the Government that . . . IRRI
enjoy(s) immunities accorded to international organizations, which determination has been held to be a
political question conclusive upon the Courts in order not to embarass a political department of
Government. 13 We cited the Court's earlier pronouncement in WHO v. Hon. Benjamin Aquino, et al., 14 to
wit:
It is a recognized principle of international law and under our system of separation
of powers that diplomatic immunity is essentially a political question and courts
should refuse to look beyond a determination by the executive branch of the
government, and where the plea of diplomatic immunity is recognized and
affirmed by the executive branch of the government as in the case at bar, it is then
the duty of the courts to accept the claim of immunity upon appropriate
suggestion by the principal law officer of the government . . . or other officer
acting under his direction. Hence, in adherence to the settled principle that courts
may not so exercise their jurisdiction . . . as to embarass the executive arm of the
government in conducting foreign relations, it is accepted doctrine that in such
cases the judicial department of (this) government follows the action of the
political branch and will not embarrass the latter by assuming an antagonistic
jurisdiction. 15
Further, we held that "(t)he raison d'etre for these immunities is the assurance of unimpeded
performance of their functions by the agencies concerned.
The grant of immunity from local jurisdiction to . . . and IRRI is clearly necessitated
by their international character and respective purposes. The objective is to avoid
the danger of partiality and interference by the host country in their internal
workings. The exercise of jurisdiction by the Department of Labor in these
instances would defeat the very purpose of immunity, which is to shield the affairs
of international organizations, in accordance with international practice, from
political pressure or control by the host country to the prejudice of member States
of the organization, and to ensure the unhampered the performance of their
functions. 16
The grant of immunity to IRRI is clear and unequivocal and an express waiver by its Director-General is
the only way by which it may relinquish or abandon this immunity.
On the matter of waiving its immunity from suit, IRRI had, early on, made its position clear. Through
counsel, the Institute wrote the Labor Arbiter categorically informing him that the Institute will not waive
its diplomatic immunity. In the second place, petitioner's reliance on the Memorandum with "Guidelines
in handling cases of dismissal of employees in relation to P.D. 1620" dated July 26, 1983, is misplaced.
The Memorandum reads, in part:
Time and again the Institute has reiterated that it will not use its immunity under
P.D. 1620 for the purpose of terminating the services of any of its employees.
Despite continuing efforts on the part of IRRI to live up to this undertaking, there
appears to be apprehension in the minds of some IRRI employees. To help allay
these fears the following guidelines will be followed hereafter by the
Personnel/Legal Office while handling cases of dismissed employees.
xxx xxx xxx
2. Notification/manifestation to MOLE or labor arbiter
If and when a dismissed employee files a complaint against the Institute contesting the legality of
dismissal, IRRI's answer to the complaint will:
1. Indicate in the identification of IRRI that it is an international organization
operating under the laws of the Philippines including P.D. 1620. and
2. Base the defense on the merits and facts of the case as well as the legality of the
cause or causes for termination.
3) Waiving immunity under P.D. 1620
If the plaintiff's attorney or the arbiter, asks if IRRI will waive its immunity
we may reply that the Institute will be happy to do so, as it has in the past in the
formal manner required thereby reaffirming our commitment to abide by the laws
of the Philippines and our full faith in the integrity and impartially of the legal
system. 17 (Emphasis in this paragraphs ours)
From the last paragraph of the foregoing quotation, it is clear that in cases involving dismissed
employees, the Institute may waive its immunity, signifying that such waiver is discretionary on its part.
We agree with private respondent IRRI that this memorandum cannot, by any stretch of the imagination,
be considered the express waiver by the Director-General. Respondent Commission has quoted IRRI's
reply thus:
The 1983 . . . is an internal memo addressed to Personnel and Legal Office and was
issued for its guidance in handling those cases where IRRI opts to waive its
immunity. It is not a declaration of waiver for all cases. This is apparent from the
use of the permissive term "may" rather than the mandatory term "shall" in the
last paragraph of the memo. Certainly the memo cannot be considered as the
express waiver by the Director General as contemplated by P.D. 1620, especially
since the memo was issued by a former Director-General. At the very least, the
express declaration of the incumbent Director-general supersedes the 1983 memo
and should be accorded greater respect. It would be equally important to point
out that the Personnel and Legal Office has been non-existent since 1988 as a
result of major reorganization of the IRRI. Cases of IRRI before DOLE are handled
by an external Legal Counsel as in this particular
case. 18 (Emphasis supplied)
The memorandum, issued by the former Director-General to a now-defunct division of the IRRI, was
meant for internal circulation and not as a pledge of waiver in all cases arising from dismissal of
employees. Moreover, the IRRI's letter to the Labor Arbiter in the case at bench made in 1991 declaring
that it has no intention of waiving its immunity, at the very least, supplants any pronouncement of
alleged waiver issued in previous cases.
Petitioner's allegation that he was denied due process is unfounded and has no basis.
It is not denied that he was informed of the findings and charges resulting from an investigation
conducted of his case in accordance with IRRI policies and procedures. He had a chance to comment
thereon in a Memorandum he submitted to the Manager of the Human Resource and Development
Department. Therefore, he was given proper notice and adequate opportunity to refute the charges and
findings, hereby fulfilling the basic requirements of due process.
Finally, on the issue of referral to the Council of IRRI Employees and Management (CIEM), petitioner
similarly fails to persuade the Court.

The Court, in the Kapisanan ng mga Manggagawa at TAC sa IRRI case, 19 held:

Neither are the employees of IRRI without remedy in case of dispute with
management as, in fact, there had been organized a forum for better
management-employee relationship as evidenced by the formation of the Council
of IRRI Employees and Management (CIEM) wherein "both management and
employees were and still are represented for purposes of maintaining mutual and
beneficial cooperation between IRRI and its employees." The existence of this
Union factually and tellingly belies the argument that Pres. Decree No. Decree No.
1620, which grants to IRRI the status, privileges and immunities of an international
organization, deprives its employees of the right to self-organization.

We have earlier concluded that petitioner was not denied due process, and this, notwithstanding the
non-referral to the Council of IRRI Employees and Management. Private respondent correctly pointed
out that petitioner, having opted not to seek the help of the CIEM Grievance Committee, prepared his
answer by his own self. 20 He cannot now fault the Institute for not referring his case to the CIEM.

IN VIEW OF THE FOREGOING, the petition for certiorari is DISMISSED. No costs.

SO ORDERED.
Republic of the Philippines Union. However, the aforesaid defendants filed a Third Party Complaint against the petitioner and the
SUPREME COURT driver of a dump truck of petitioner.
Manila
Thereafter, the case was subsequently transferred to Branch IV, presided over by respondent judge and
FIRST DIVISION was subsequently docketed as Civil Case No. 107-Bg. By virtue of a court order dated May 7, 1975, the
private respondents amended the complaint wherein the petitioner and its regular employee, Alfredo
Bislig were impleaded for the first time as defendants. Petitioner filed its answer and raised affirmative
G.R. No. L-52179 April 8, 1991
defenses such as lack of cause of action, non-suability of the State, prescription of cause of action and
the negligence of the owner and driver of the passenger jeepney as the proximate cause of the collision.
MUNICIPALITY OF SAN FERNANDO, LA UNION, petitioner
vs.
In the course of the proceedings, the respondent judge issued the following questioned orders, to wit:
HON. JUDGE ROMEO N. FIRME, JUANA RIMANDO-BANIA, IAUREANO BANIA, JR., SOR MARIETA
BANIA, MONTANO BANIA, ORJA BANIA, AND LYDIA R. BANIA, respondents.
(1) Order dated November 4, 1975 dismissing the cross-claim against Bernardo Balagot;
Mauro C. Cabading, Jr. for petitioner.
Simeon G. Hipol for private respondent. (2) Order dated July 13, 1976 admitting the Amended Answer of the Municipality of San
Fernando, La Union and Bislig and setting the hearing on the affirmative defenses only with
respect to the supposed lack of jurisdiction;

(3) Order dated August 23, 1976 deferring there resolution of the grounds for the Motion to
MEDIALDEA, J.:
Dismiss until the trial;

This is a petition for certiorari with prayer for the issuance of a writ of preliminary mandatory injunction
(4) Order dated February 23, 1977 denying the motion for reconsideration of the order of July
seeking the nullification or modification of the proceedings and the orders issued by the respondent
13, 1976 filed by the Municipality and Bislig for having been filed out of time;
Judge Romeo N. Firme, in his capacity as the presiding judge of the Court of First Instance of La Union,
Second Judicial District, Branch IV, Bauang, La Union in Civil Case No. 107-BG, entitled "Juana Rimando
Bania, et al. vs. Macario Nieveras, et al." dated November 4, 1975; July 13, 1976; August 23,1976; (5) Order dated March 16, 1977 reiterating the denial of the motion for reconsideration of the
February 23, 1977; March 16, 1977; July 26, 1979; September 7, 1979; November 7, 1979 and December order of July 13, 1976;
3, 1979 and the decision dated October 10, 1979 ordering defendants Municipality of San Fernando, La
Union and Alfredo Bislig to pay, jointly and severally, the plaintiffs for funeral expenses, actual damages
(6) Order dated July 26, 1979 declaring the case deemed submitted for decision it appearing
consisting of the loss of earning capacity of the deceased, attorney's fees and costs of suit and dismissing
that parties have not yet submitted their respective memoranda despite the court's direction;
the complaint against the Estate of Macario Nieveras and Bernardo Balagot.
and

The antecedent facts are as follows:

(7) Order dated September 7, 1979 denying the petitioner's motion for reconsideration
and/or order to recall prosecution witnesses for cross examination.
Petitioner Municipality of San Fernando, La Union is a municipal corporation existing under and in
accordance with the laws of the Republic of the Philippines. Respondent Honorable Judge Romeo N.
On October 10, 1979 the trial court rendered a decision, the dispositive portion is hereunder quoted as
Firme is impleaded in his official capacity as the presiding judge of the Court of First Instance of La Union,
follows:
Branch IV, Bauang, La Union. While private respondents Juana Rimando-Bania, Laureano Bania, Jr., Sor
Marietta Bania, Montano Bania, Orja Bania and Lydia R. Bania are heirs of the deceased Laureano
Bania Sr. and plaintiffs in Civil Case No. 107-Bg before the aforesaid court. IN VIEW OF ALL OF (sic) THE FOREGOING, judgment is hereby rendered for the plaintiffs, and
defendants Municipality of San Fernando, La Union and Alfredo Bislig are ordered to pay
jointly and severally, plaintiffs Juana Rimando-Bania, Mrs. Priscilla B. Surell, Laureano Bania
At about 7 o'clock in the morning of December 16, 1965, a collision occurred involving a passenger
Jr., Sor Marietta Bania, Mrs. Fe B. Soriano, Montano Bania, Orja Bania and Lydia B. Bania
jeepney driven by Bernardo Balagot and owned by the Estate of Macario Nieveras, a gravel and sand
the sums of P1,500.00 as funeral expenses and P24,744.24 as the lost expected earnings of
truck driven by Jose Manandeg and owned by Tanquilino Velasquez and a dump truck of the Municipality
the late Laureano Bania Sr., P30,000.00 as moral damages, and P2,500.00 as attorney's fees.
of San Fernando, La Union and driven by Alfredo Bislig. Due to the impact, several passengers of the
Costs against said defendants.
jeepney including Laureano Bania Sr. died as a result of the injuries they sustained and four (4) others
suffered varying degrees of physical injuries.
The Complaint is dismissed as to defendants Estate of Macario Nieveras and Bernardo
Balagot.
On December 11, 1966, the private respondents instituted a compliant for damages against the Estate of
Macario Nieveras and Bernardo Balagot, owner and driver, respectively, of the passenger jeepney, which
was docketed Civil Case No. 2183 in the Court of First Instance of La Union, Branch I, San Fernando, La SO ORDERED. (Rollo, p. 30)
Petitioner filed a motion for reconsideration and for a new trial without prejudice to another motion
which was then pending. However, respondent judge issued another order dated November 7, 1979
denying the motion for reconsideration of the order of September 7, 1979 for having been filed out of
time.
Finally, the respondent judge issued an order dated December 3, 1979 providing that if defendants
municipality and Bislig further wish to pursue the matter disposed of in the order of July 26, 1979, such
should be elevated to a higher court in accordance with the Rules of Court. Hence, this petition.
Petitioner maintains that the respondent judge committed grave abuse of discretion amounting to
excess of jurisdiction in issuing the aforesaid orders and in rendering a decision. Furthermore, petitioner
asserts that while appeal of the decision maybe available, the same is not the speedy and adequate
remedy in the ordinary course of law.
On the other hand, private respondents controvert the position of the petitioner and allege that the
petition is devoid of merit, utterly lacking the good faith which is indispensable in a petition
for certiorari and prohibition. (Rollo, p. 42.) In addition, the private respondents stress that petitioner has
not considered that every court, including respondent court, has the inherent power to amend and
control its process and orders so as to make them conformable to law and justice. (Rollo, p. 43.)
The controversy boils down to the main issue of whether or not the respondent court committed grave
abuse of discretion when it deferred and failed to resolve the defense of non-suability of the State
amounting to lack of jurisdiction in a motion to dismiss.
In the case at bar, the respondent judge deferred the resolution of the defense of non-suability of the
State amounting to lack of jurisdiction until trial. However, said respondent judge failed to resolve such
defense, proceeded with the trial and thereafter rendered a decision against the municipality and its
driver.
The respondent judge did not commit grave abuse of discretion when in the exercise of its judgment it
arbitrarily failed to resolve the vital issue of non-suability of the State in the guise of the municipality.
However, said judge acted in excess of his jurisdiction when in his decision dated October 10, 1979 he
held the municipality liable for the quasi-delict committed by its regular employee.
The doctrine of non-suability of the State is expressly provided for in Article XVI, Section 3 of the
Constitution, to wit: "the State may not be sued without its consent."
Stated in simple parlance, the general rule is that the State may not be sued except when it gives consent
to be sued. Consent takes the form of express or implied consent.
Express consent may be embodied in a general law or a special law. The standing consent of the State to
be sued in case of money claims involving liability arising from contracts is found in Act No. 3083. A
special law may be passed to enable a person to sue the government for an alleged quasi-delict, as in
Merritt v. Government of the Philippine Islands (34 Phil 311). (see United States of America v. Guinto,
G.R. No. 76607, February 26, 1990, 182 SCRA 644, 654.)
Consent is implied when the government enters into business contracts, thereby descending to the level
of the other contracting party, and also when the State files a complaint, thus opening itself to a
counterclaim. (Ibid)
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 functions because their charter
provided that they can sue and be sued. (Cruz, Philippine Political Law, 1987 Edition, p. 39)
A distinction should first be made between suability and liability. "Suability depends on the consent of
the state to be sued, liability on the applicable law and the established facts. The circumstance that a
state is suable does not necessarily mean that it is liable; on the other hand, it can never be held liable if
it does not first consent to be sued. Liability is not conceded by the mere fact that the state has allowed
itself to be sued. When the state does waive its sovereign immunity, it is only giving the plaintiff the
chance to prove, if it can, that the defendant is liable." (United States of America vs. Guinto, supra, p.
659-660)
Anent the issue of whether or not the municipality is liable for the torts committed by its employee, the
test of liability of the municipality depends on whether or not the driver, acting in behalf of the
municipality, is performing governmental or proprietary functions. As emphasized in the case of Torio vs.
Fontanilla (G. R. No. L-29993, October 23, 1978. 85 SCRA 599, 606), the distinction of powers becomes
important for purposes of determining the liability of the municipality for the acts of its agents which
result in an injury to third persons.
Another statement of the test is given in City of Kokomo vs. Loy, decided by the Supreme Court of
Indiana in 1916, thus:
Municipal corporations exist in a dual capacity, and their functions are twofold. In one they
exercise the right springing from sovereignty, and while in the performance of the duties
pertaining thereto, their acts are political and governmental. Their officers and agents in such
capacity, though elected or appointed by them, are nevertheless public functionaries
performing a public service, and as such they are officers, agents, and servants of the state. In
the other capacity the municipalities exercise a private, proprietary or corporate right, arising
from their existence as legal persons and not as public agencies. Their officers and agents in
the performance of such functions act in behalf of the municipalities in their corporate or
individual capacity, and not for the state or sovereign power." (112 N.E., 994-995) (Ibid, pp.
605-606.)
It has already been remarked that municipal corporations are suable because their charters grant them
the competence to sue and be sued. Nevertheless, they are generally not liable for torts committed by
them in the discharge of governmental functions and can be held answerable only if it can be shown that
they were acting in a proprietary capacity. In permitting such entities to be sued, the State merely gives
the claimant the right to show that the defendant was not acting in its governmental capacity when the
injury was committed or that the case comes under the exceptions recognized by law. Failing this, the
claimant cannot recover. (Cruz, supra, p. 44.)
In the case at bar, the driver of the dump truck of the municipality insists that "he was on his way to the
Naguilian river to get a load of sand and gravel for the repair of San Fernando's municipal streets." (Rollo,
p. 29.)
In the absence of any evidence to the contrary, the regularity of the performance of official duty is
presumed pursuant to Section 3(m) of Rule 131 of the Revised Rules of Court. Hence, We rule that the
driver of the dump truck was performing duties or tasks pertaining to his office.
We already stressed in the case of Palafox, et. al. vs. Province of Ilocos Norte, the District Engineer, and
the Provincial Treasurer (102 Phil 1186) that "the construction or maintenance of roads in which the
truck and the driver worked at the time of the accident are admittedly governmental activities."

After a careful examination of existing laws and jurisprudence, We arrive at the conclusion that the
municipality cannot be held liable for the torts committed by its regular employee, who was then
engaged in the discharge of governmental functions. Hence, the death of the passenger tragic and
deplorable though it may be imposed on the municipality no duty to pay monetary compensation.

All premises considered, the Court is convinced that the respondent judge's dereliction in failing to
resolve the issue of non-suability did not amount to grave abuse of discretion. But said judge exceeded
his jurisdiction when it ruled on the issue of liability.

ACCORDINGLY, the petition is GRANTED and the decision of the respondent court is hereby modified,
absolving the petitioner municipality of any liability in favor of private respondents.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-29993 October 23, 1978
LAUDENCIO TORIO, GUILLERMO EVANGELISTA, MANUEL DE GUZMAN, ALFONSO R. MAGSANOC, JESUS
MACARANAS, MAXIMO MANANGAN, FIDEL MONTEMAYOR, MELCHOR VIRAY, RAMON TULAGAN, all
Members of the Municipal Council of Malasiqui in 1959, Malasiqui, Pangasinan, petitioners,
vs.
ROSALINA, ANGELINA, LEONARDO, EDUARDO, ARTEMIO, ANGELITA, ANITA, ERNESTO, NORMA,
VIRGINIA, REMEDIOS and ROBERTO, all surnamed FONTANILLA, and THE HONORABLE COURT OF
APPEALS,respondents.
G.R. No. L-30183 October 23, 1978
MUNICIPALITY OF MALASIQUI, petitioner,
vs.
ROSALINA, ANGELINA, LEONARDO, EDUARDO, ARTEMIO, ANGELITA, ANITA, ERNESTO, NORMA,
VIRGINIA, REMEDIOS and ROBERTO, all surnamed FONTANILLA, and the Honorable COURT OF
APPEALS,respondents.
Julian M. Armas, Assistant Provincial Fiscal for petitioners.
Isidro L. Padilla for respondents.
MUOZ PALMA, J.:
These Petitions for review present the issue of whether or not the celebration of a town fiesta
authorized by a municipal council under Sec. 2282 of the Municipal Law as embodied in the Revised
Administrative Code is a governmental or a corporate or proprietary function of the municipality.
A resolution of that issue will lead to another, viz the civil liability for damages of the Municipality of
Malasiqui, and the members of the Municipal Council of Malasiqui, province of Pangasinan, for a death
which occurred during the celebration of the town fiesta on January 22, 1959, and which was attributed
to the negligence of the municipality and its council members.
The following facts are not in dispute:
On October 21, 1958, the Municipal Council of Malasiqui, Pangasinan, passed Resolution No. 159
whereby "it resolved to manage the 1959 Malasiqui town fiesta celebration on January 21, 22, and 23,
1959." Resolution No. 182 was also passed creating the "1959 Malasiqui 'Town Fiesta Executive
Committee" which in turn organized a sub-committee on entertainment and stage, with Jose Macaraeg
as Chairman. the council appropriated the amount of P100.00 for the construction of 2 stages, one for
the "zarzuela" and another for the cancionan Jose Macaraeg supervised the construction of the stage
and as constructed the stage for the "zarzuela" was "5- meters by 8 meters in size, had a wooden floor
high at the rear and was supported by 24 bamboo posts 4 in a row in front, 4 in the rear and 5 on each
side with bamboo braces." 1
The "zarzuela" entitled "Midas Extravaganza" was donated by an association of Malasiqui employees of
the Manila Railroad Company in Caloocan, Rizal. The troupe arrived in the evening of January 22 for the
performance and one of the members of the group was Vicente Fontanilla. The program started at about
10:15 o'clock that evening with some speeches, and many persons went up the stage. The "zarzuela"
then began but before the dramatic part of the play was reached, the stage collapsed and Vicente
Fontanilla who was at the rear of the stage was pinned underneath. Fontanilia was taken to tile San
Carlos General Hospital where he died in the afternoon of the following day.
The heirs of Vicente Fontanilia filed a complaint with the Court of First Instance of Manila on September
11, 1959 to recover damages. Named party-defendants were the Municipality of Malasiqui, the
Municipal Council of Malasiqui and all the individual members of the Municipal Council in 1959.
Answering the complaint defendant municipality invoked inter alia the principal defense that as a legally
and duly organized public corporation it performs sovereign functions and the holding of a town fiesta
was an exercise of its governmental functions from which no liability can arise to answer for the
negligence of any of its agents.
The defendant councilors inturn maintained that they merely acted as agents of the municipality in
carrying out the municipal ordinance providing for the management of the town fiesta celebration and
as such they are likewise not liable for damages as the undertaking was not one for profit; furthermore,
they had exercised due care and diligence in implementing the municipal ordinance. 2
After trial, the Presiding Judge, Hon. Gregorio T. Lantin narrowed the issue to whether or not the
defendants exercised due diligence 'm the construction of the stage. From his findings he arrived at the
conclusion that the Executive Committee appointed by the municipal council had exercised due diligence
and care like a good father of the family in selecting a competent man to construct a stage strong
enough for the occasion and that if it collapsed that was due to forces beyond the control of the
committee on entertainment, consequently, the defendants were not liable for damages for the death of
Vicente Fontanilla. The complaint was accordingly dismissed in a decision dated July 10, 1962. 3
The Fontanillas appealed to the Court of Appeals. In a decision Promulgated on October 31, 1968, the
Court of Appeals through its Fourth Division composed at the time of Justices Salvador V. Esguerra,
Nicasio A. Yatco and Eulogio S. Serrano reversed the trial court's decision and ordered all the defendants-
appellees to pay jointly and severally the heirs of Vicente Fontanilla the sums of P12,000.00 by way of
moral and actual damages: P1200.00 its attorney's fees; and the costs. 4
The case is now before Us on various assignments of errors all of which center on the proposition stated
at the sentence of this Opinion and which We repeat:
Is the celebration of a town fiesta an undertaking in the excercise of a municipality's governmental or
public function or is it or a private or proprietary character?
1. Under Philippine laws municipalities are political bodies corporate and as such ag endowed with the
faculties of municipal corporations to be exercised by and through their respective municipal
governments in conformity with law, and in their proper corporate name, they may inter alia sue and be
sued, and contract and be contracted with.5
The powers of a municipality are twofold in character public, governmental or political on the one hand,
and corporate, private, or proprietary on the other. Governmental powers are those exercised by the
corporation in administering the powers of the state and promoting the public welfare and they include
the legislative, judicial public, and political Municipal powers on the other hand are exercised for the
special benefit and advantage of the community and include those which are ministerial private and
corporate. 6
As to when a certain activity is governmental and when proprietary or private, that is generally a difficult
matter to determine. The evolution of the municipal law in American Jurisprudence, for instance, has
shown that; none of the tests which have evolved and are stated in textbooks have set down a
conclusive principle or rule, so that each case will have to be determined on the basis of attending
circumstances.
In McQuillin on Municipal Corporations, the rule is stated thus: "A municipal corporation proper has ... a
public character as regards the state at large insofar as it is its agent in government, and private (so-
called) insofar as it is to promote local necessities and conveniences for its own community. 7
Another statement of the test is given in City of Kokomo v. Loy, decided by the Supreme Court of Indiana
in 1916, thus:
Municipal corporations exist in a dual capacity, and their functions are two fold. In
one they exercise the right springing from sovereignty, and while in the
performance of the duties pertaining thereto, their acts are political and
governmental Their officers and agents in such capacity, though elected or
appointed by the are nevertheless public functionaries performing a public service,
and as such they are officers, agents, and servants of the state. In the other
capacity the municipalities exercise a private. proprietary or corporate right,
arising from their existence as legal persons and not as public agencies. Their
officers and agents in the performance of such functions act in behalf of the
municipalities in their corporate or in. individual capacity, and not for the state or
sovereign power. (112 N. E 994-995)
In the early Philippine case of Mendoza v. de Leon 1916, the Supreme Court, through Justice Grant T.
Trent, relying mainly on American Jurisprudence classified certain activities of the municipality as
governmental, e.g.: regulations against fire, disease, preservation of public peace, maintenance of
municipal prisons, establishment of schools, post-offices, etc. while the following are corporate or
proprietary in character, viz: municipal waterwork, slaughter houses, markets, stables, bathing
establishments, wharves, ferries, and fisheries. 8 Maintenance of parks, golf courses, cemeteries and
airports among others, are also recognized as municipal or city activities of a proprietary character. 9
2. This distinction of powers becomes important for purposes of determining the liability of the
municipality for the acts of its agents which result in an injury to third persons.
If the injury is caused in the course of the performance of a governmental function or duty no recovery,
as a rule, can be. had from the municipality unless there is an existing statute on the matter, 10 nor from
its officers, so long as they performed their duties honestly and in good faith or that they did not act
wantonly and maliciously. 11 In Palafox, et al., v. Province of Ilocos Norte, et al., 1958, a truck driver
employed by the provincial government of Ilocos Norte ran over Proceto Palafox in the course of his
work at the construction of a road. The Supreme Court in affirming the trial court's dismissal of the
complaint for damages held that the province could not be made liable because its employee was in the
performance of a governmental function the construction and maintenance of roads and however
tragic and deplorable it may be, the death of Palafox imposed on the province no duty to pay monetary
consideration. 12
With respect to proprietary functions, the settled rule is that a municipal corporation can be held liable
to third persons ex contract 13 or ex delicto. 14
Municipal corporations are subject to be sued upon contracts and in tort. ...
xxx xxx xxx
The rule of law is a general one, that the superior or employer must answer civilly
for the negligence or want of skill of its agent or servant in the course or fine of his
employment, by which another, who is free from contributory fault, is injured.
Municipal corporations under the conditions herein stated, fall within the
operation of this rule of law, and are liable, accordingly, to civil actions for
damages when the requisite elements of liability co-exist. ... (Dillon on Municipal
Corporations, 5th ed. Sec. 1610,1647, cited in Mendoza v. de Leon, supra. 514)
3. Coming to the cam before Us, and applying the general tests given above, We hold that the ho of the
town fiesta in 1959 by the municipality of Malsiqui Pangasinan was an exercise of a private or
proprietary function of the municipality.
Section 2282 of the Chatter on Municipal Law of the Revised Administrative Code provides:
Section 2282. Celebration of fiesta. fiesta may be held in each municipality not
oftener than once a year upon a date fixed by the municipal council A fiesta s not
be held upon any other date than that lawfully fixed therefor, except when, for
weighty reasons, such as typhoons, foundations, earthquakes, epidemics, or other
public ties, the fiesta cannot be hold in the date fixed in which case it may be held
at a later date in the same year, by resolution of the council.
This provision simply gives authority to the municipality to accelebrate a yearly fiesta but it does not
impose upon it a duty to observe one. Holding a fiesta even if the purpose is to commemorate a religious
or historical event of the town is in essence an act for the special benefit of the community and not for
the general welfare of the public performed in pursuance of a policy of the state. The mere fact that the
celebration, as claimed was not to secure profit or gain but merely to provide entertainment to the town
inhabitants is not a conclusive test. For instance, the maintenance of parks is not a source of income for
the nonetheless it is private undertaking as distinguished from the maintenance of public schools, jails,
and the like which are for public service.
As stated earlier, there can be no hard and fast rule for purposes of determining the true nature of an
undertaking or function of a municipality; the surrounding circumstances of a particular case are to be
considered and will be decisive. The basic element, however beneficial to the public the undertaking may
be, is that it is governmental in essence, otherwise. the function becomes private or proprietary in
character. Easily, no overnmental or public policy of the state is involved in the celebration of a town
fiesta. 15
4. It follows that under the doctrine of respondent superior, petitioner-municipality is to be held liable
for damages for the death of Vicente Fontanilia if that was at- tributable to the negligence of the
municipality's officers, employees, or agents.
 Art. 2176, Civil Code: Whoever by act or omission causes damage to another, there
being fault or negligence, is obliged to pay for the damage done. . .
Art. 2180, Civil Code: The obligation imposed by article 2176 is demandable not
only for one's own acts or omission, but also for those of persons for whom one is
responsible. . .
On this point, the Court of Appeals found and held that there was negligence.
The trial court gave credence to the testimony of Angel Novado, a witness of the defendants (now
petitioners), that a member of the "extravaganza troupe removed two principal braces located on the
front portion of the stage and u them to hang the screen or "telon", and that when many people went
up the stage the latter collapsed. This testimony was not believed however by respondent appellate
court, and rightly so. According to said defendants, those two braces were "mother" or "principal"
braces located semi-diagonally from the front ends of the stage to the front posts of the ticket booth
located at the rear of the stage and were fastened with a bamboo twine. 16 That being the case, it
becomes incredible that any person in his right mind would remove those principal braces and leave the
front portion of the stage practically unsuported Moreover, if that did happen, there was indeed
negligence as there was lack of suspension over the use of the stage to prevent such an occurrence.
At any rate, the guitarist who was pointed to by Novado as the person who removed the two bamboo
braces denied having done go. The Court of Appeals said "Amor by himself alone could not have
removed the two braces which must be about ten meters long and fastened them on top of the stags for
the curtain. The stage was only five and a half meters wide. Surely, it, would be impractical and unwieldy
to use a ten meter bamboo pole, much more two poles for the stage curtain. 17
The appellate court also found that the stage was not strong enough considering that only P100.00 was
appropriate for the construction of two stages and while the floor of the "zarzuela" stage was of wooden
planks, the Post and braces used were of bamboo material We likewise observe that although the stage
was described by the Petitioners as being supported by "24" posts, nevertheless there were only 4 in
front, 4 at the rear, and 5 on each side. Where were the rest?
The Court of Appeals thus concluded
The court a quo itself attributed the collapse of the stage to the great number of
onlookers who mounted the stage. The municipality and/or its agents had the
necessary means within its command to prevent such an occurrence. Having filed
to take the necessary steps to maintain the safety of the stage for the use of the
participants in the stage presentation prepared in connection with the celebration
of the town fiesta, particularly, in preventing non participants or spectators from
mounting and accumulating on the stage which was not constructed to meet the
additional weight- the defendant-appellees were negligent and are liable for the
death of Vicente Fontanilla . (pp. 30-31, rollo, L-29993)
The findings of the respondent appellate court that the facts as presented to it establish negligence as a
matter of law and that the Municipality failed to exercise the due diligence of a good father of the family,
will not disturbed by Us in the absence of a clear showing of an abuse of discretion or a gross
misapprehension of facts." 18
Liability rests on negligence which is "the want of such care as a person of ordinary prudence would
exercise under the circumstances of the case." 19
Thus, private respondents argue that the "Midas Extravaganza" which was to be performed during the
town fiesta was a "donation" offered by an association of Malasiqui employees of the Manila Railroad
Co. in Caloocan, and that when the Municipality of Malasiqui accepted the donation of services and
constructed precisely a "zarzuela stage" for the purpose, the participants in the stage show had the right
to expect that the Municipality through its "Committee on entertainment and stage" would build or put
up a stage or platform strong enough to sustain the weight or burden of the performance and take the
necessary measures to insure the personal safety of the participants. 20 We agree.
Quite relevant to that argument is the American case of Sanders v. City of Long Beach, 1942, which was
an action against the city for injuries sustained from a fall when plaintiff was descending the steps of the
city auditorium. The city was conducting a "Know your City Week" and one of the features was the
showing of a motion picture in the city auditorium to which the general public was invited and plaintiff
Sanders was one of those who attended. In sustaining the award for Damages in favor of plaintiff, the
District Court of Appeal, Second district, California, heldinter alia that the "Know your City Week" was a
"proprietary activity" and not a "governmental one" of the city, that defendant owed to plaintiff, an
invitee the duty of exercising ordinary care for her safety, and plaintiff was entitled to assume that she
would not be exposed to a danger (which in this case consisted of lack of sufficient illumination of the
premises) that would come to her through a violation of defendant duty. 21
We can say that the deceased Vicente Fontanilla was similarly situated as Sander The Municipality of
Malasiqui resolved to celebrate the town fiesta in January of 1959; it created a committee in charge of
the entertainment and stage; an association of Malasiqui residents responded to the call for the
festivities and volunteered to present a stage show; Vicente Fontanilla was one of the participants who
like Sanders had the right to expect that he would be exposed to danger on that occasion.
Lastly, petitioner or appellant Municipality cannot evade ability and/or liability under the c that it was
Jose Macaraeg who constructed the stage. The municipality acting through its municipal council
appointed Macaraeg as chairman of the sub-committee on entertainment and in charge of the
construction of the "zarzuela" stage. Macaraeg acted merely as an agent of the Municipality. Under the
doctrine of respondent superior mentioned earlier, petitioner is responsible or liable for the negligence
of its agent acting within his assigned tasks. 22
... when it is sought to render a municipal corporation liable for the act of servants or agents, a cardinal
inquiry is, whether they are the servants or agents of the corporation. If the corporation appoints or
elects them, can control them in the discharge of their duties, can continue or remove the can hold them
responsible for the manner in which they discharge their trust, and if those duties relate to the exercise
of corporate powers, and are for the benefit of the corporation in its local or special interest, they may
justly be regarded as its agents or servants, and the maxim of respondent superior applies." ... (Dillon on
Municipal Corporations, 5th Ed., Vol IV, p. 2879)
5. The remaining question to be resolved centers on the liability of the municipal councilors who enacted
the ordinance and created the fiesta committee.
The Court of Appeals held the councilors jointly and solidarity liable with the municipality for damages
under Article 27 of the Civil Code which provides that d any person suffering ing material or moral loss
because a public servant or employee refuses or neglects, without just cause to perform his official duty
may file an action for damages and other relief at the latter. 23
In their Petition for review the municipal councilors allege that the Court of Appeals erred in ruling that
the holding of a town fiesta is not a governmental function and that there was negligence on their part
for not maintaining and supervising the safe use of the stage, in applying Article 27 of the Civil Code
against them and in not holding Jose Macaraeg liable for the collapse of the stage and the consequent 6. One last point We have to resolve is on the award of attorney's fees by respondent court. Petitioner-
death of Vicente Fontanilla. 24 municipality assails the award.

We agree with petitioners that the Court of Appeals erred in applying Article 27 of the Civil Code against
the for this particular article covers a case of nonfeasance or non-performance by a public officer of his
official duty; it does not apply to a case of negligence or misfeasance in carrying out an official duty.
If We are led to set aside the decision of the Court of Appeals insofar as these petitioners are concerned,
it is because of a plain error committed by respondent court which however is not invoked in petitioners'
brief.
Under paragraph 11, Art. 2208 of the Civil Code attorney's fees and expenses of litigation may be
granted when the court deems it just and equitable. In this case of Vicente Fontanilla, although
respondent appellate court failed to state the grounds for awarding attorney's fees, the records show
however that attempts were made by plaintiffs, now private respondents, to secure an extrajudicial
compensation from the municipality: that the latter gave prorases and assurances of assistance but
failed to comply; and it was only eight month after the incident that the bereaved family of Vicente
Fontanilla was compelled to seek relief from the courts to ventilate what was believed to be a just
cause. 28

In Miguel v. The Court of appeal. et al., the Court, through Justice, now Chief Justice, Fred Ruiz Castro,
We hold, therefore, that there is no error committed in the grant of attorney's fees which after all is a
held that the Supreme Court is vested with ample authority to review matters not assigned as errors in
matter of judicial discretion. The amount of P1,200.00 is fair and reasonable.
an appeal if it finds that their consideration and resolution are indispensable or necessary in arriving at a
just decision in a given case, and that tills is author under Sec. 7, Rule 51 of the Rules of Court. 25 We
believe that this pronouncement can well be applied in the instant case. PREMISES CONSIDERED, We AFFIRM in toto the decision of the Court of Appeals insofar as the
Municipality of Malasiqui is concerned (L-30183), and We absolve the municipal councilors from liability
and SET ASIDE the judgment against them (L-9993).
The Court of Appeals in its decision now under review held that the celebration of a town fiesta by the
Municipality of Malasiqui was not a governmental function. We upheld that ruling. The legal
consequence thereof is that the Municipality stands on the same footing as an ordinary private Without pronouncement as to costs.
corporation with the municipal council acting as its board of directors. It is an elementary principle that a
corporation has a personality, separate and distinct from its officers, directors, or persons composing
SO ORDERED,
it 26 and the latter are not as a rule co-responsible in an action for damages for tort or negligence culpa
aquilla committed by the corporation's employees or agents unless there is a showing of bad faith or
gross or wanton negligence on their part. 27

xxx xxx xxx

The ordinary doctrine is that a director, merely by reason of his office, is not
personally Stable for the torts of his corporation; he Must be shown to have
personally voted for or otherwise participated in them ... Fletcher Encyclopedia
Corporations, Vol 3A Chapt 11, p. 207)

Officers of a corporation 'are not held liable for the negligence of the corporation
merely because of their official relation to it, but because of some wrongful or
negligent act by such officer amounting to a breach of duty which resulted in an
injury ... To make an officer of a corporation liable for the negligence of the
corporation there must have been upon his part such a breach of duty as
contributed to, or helped to bring about, the injury; that is to say, he must be a
participant in the wrongful act. ... (pp. 207-208, Ibid.)

xxx xxx xxx

Directors who merely employ one to give a fireworks Ambition on the corporate
are not personally liable for the negligent acts of the exhibitor. (p. 211, Ibid.)

On these people We absolve Use municipal councilors from any liability for the death of Vicente
Fontanilla. The records do not show that said petitioners directly participated in the defective
construction of the "zarzuela" stage or that they personally permitted spectators to go up the platform.
THIRD DIVISION
[G.R. No. 97882. August 28, 1996]
THE CITY OF ANGELES, Hon. ANTONIO ABAD SANTOS, in his capacity as MAYOR of Angeles City, and
the SANGGUNIANG PANLUNGSOD OF THE CITY OF ANGELES, petitioners, vs. COURT OF
APPEALS and TIMOG SILANGAN DEVELOPMENT CORPORATION, respondents.
DECISION
PANGANIBAN, J.:
In resolving this petition, the Court addressed the questions of whether a donor of open spaces in
a residential subdivision can validly impose conditions on the said donation; whether the city
government as donee can build and operate a drug rehabilitation center on the donated land intended
for open space; and whether the said donation may be validly rescinded by the donor.
Petitioners claim they have the right to construct and operate a drug rehabilitation center on the
donated land in question, contrary to the provisions stated in the amended Deed of Donation.
On the other hand, private respondent, owner/developer of the Timog Park residential
subdivision in Angeles City, opposed the construction and now, the operation of the said center on the
donated land, which is located within said residential subdivision.
Before us is a petition for review on certiorari assailing the Decision[1] of the Court of
Appeals[2] dated October 31, 1990, which affirmed the decision[3] of the Regional Trial Court of Angeles
City Branch 56,[4] dated February 15, 1989.
The Antecedents
In a Deed of Donation dated March 9, 1984, subsequently superseded by a Deed of Donation
dated September 27, 1984, which in turn was superseded by an Amended Deed of Donation dated
November 26, 1984, private respondent donated to the City of Angeles, 51 parcels of land situated in
Barrio Pampang, City of Angeles, with an aggregate area of 50,676 square meters, more or less, part of a
bigger area also belonging to private respondent. The amended deed[5]provided, among others, that:
2. The properties donated shall be devoted and utilized solely for the site of the Angeles City Sports
Center (which excludes cockfighting) pursuant to the plans to be submitted within six (6) months by the
DONEE to the DONOR for the latters approval, which approval shall not be unreasonably withheld as
long as entire properties donated are developed as a Sports Complex. Any change or modification in the
basic design or concept of said Sports Center must have the prior written consent of the DONOR.
3. No commercial building, commercial complex, market or any other similar complex, mass or tenament
(sic) housing/buildings(s) shall be constructed in the properties donated nor shall cockfighting, be
allowed in the premises.
4. The construction of the Sports Center shall commence within a period of one (1) year from 09 March
1984 and shall be completed within a period of five (5) years from 09 March 1984.
xxx xxx xxx
6. The properties donated (which is more than five (5) percent of the total land area of the DONORs
subdivision) shall constitute the entire open space for DONORs subdivision and all other lands or areas
previously reserved or designated, including Lot 1 and Lot 2A of Block 72 and the whole Block 29 are
dispensed with, and rendered free, as open spaces, and the DONEE hereby agrees to execute and deliver
all necessary consents, approvals, endorsements, and authorizations to effect the foregoing.
7. The properties donated are devoted and described as open spaces of the DONORs subdivision, and to
this effect, the DONEE, upon acceptance of this donation, releases the DONOR and/or assumes any and
all obligations and liabilities appertaining to the properties donated.
8. Any substantial breach of the foregoing provisos shall entitle the DONOR to revoke or rescind this
Deed of Donation, and in such eventuality, the DONEE agrees to vacate and return the premises,
together with all improvements, to the DONOR peacefully without necessity of judicial action.
On July 19, 1988, petitioners started the construction of a drug rehabilitation center on a portion
of the donated land. Upon learning thereof, private respondent protested such action for being violative
of the terms and conditions of the amended deed and prejudicial to its interest and to those of its clients
and residents. Private respondent also offered another site for the rehabilitation center. However,
petitioners ignored the protest, maintaining that the construction was not violative of the terms of the
donation. The alternative site was rejected because, according to petitioners, the site was too isolated
and had no electric and water facilities.
On August 8, 1988, private respondent filed a complaint with the Regional Trial Court, Branch 56,
in Angeles City against the petitioners, alleging breach of the conditions imposed in the amended deed
of donation and seeking the revocation of the donation and damages, with preliminary injunction and/or
temporary restraining order to halt the construction of the said center.
On August 10, 1988, the trial court issued a temporary restraining order to enjoin the petitioners
from further proceeding with the construction of the center, which at that time was already 40%
complete.
However, the trial court denied the prayer for preliminary injunction based on the prohibition in
Presidential Decree No. 1818.
In their Answer with counterclaim, petitioners admitted the commencement of the construction
but alleged inter alia that the conditions imposed in the amended deed were contrary to Municipal
Ordinance No. 1, Series of 1962, otherwise known as the Subdivision Ordinance of the Municipality of
Angeles.[6]
On October 15, 1988, private respondent filed a Motion for Partial Summary Judgment on the
ground that the main defense of the petitioners was anchored on a pure question of law and that their
legal position was untenable.
The petitioners opposed, contending that they had a meritorious defense as (1) private
respondents had no right to dictate upon petitioners what to do with the donated land and how to do it
so long as the purpose remains for public use; and (2) the cause of action of the private respondent
became moot and academic when the Angeles City Council repealed the resolution providing for the
construction of said drug rehabilitation center and adopted a new resolution changing
the purpose and usage of said center to a sports development and youth center in order to conform with On April 26, 1991, the respondent Court rendered the assailed Decision affirming the ruling of the
the sports complex project constructed on the donated land. trial court. Subsequently, the petitioners motion for reconsideration was also denied for lack of merit.

On February 15, 1989, the trial court rendered its decision, in relevant part reading as follows: Consequently, this Petition for Review.

x x x the Court finds no inconsistency between the conditions imposed in the Deeds of Donation and the
provision of the Subdivision Ordinance of the City of Angeles requiring subdivisions in Angeles City to
The Issues
reserve at least one (1) hectare in the subdivision as suitable sites known as open spaces for parks,
playgrounds, playlots and/or other areas to be dedicated to public use. On the contrary, the condition
requiring the defendant city of Angeles to devote and utilize the properties donated to it by the plaintiff
for the site of the Angeles City Sports Center conforms with the requirement in the Subdivision The key issues[8] raised by petitioners may be restated as follows:
Ordinance that the subdivision of the plaintiff shall be provided with a playground or playlot, among
others. I. Whether a subdivision owner/developer is legally bound under Presidential Decree No. 1216 to donate
to the city or municipality the open space allocated exclusively for parks, playground and recreational
On the other hand the term public use in the Subdivision Ordinance should not be construed to include a use.
Drug Rehabilitation Center as that would be contrary to the primary purpose of the Subdivision
Ordinance requiring the setting aside of a portion known as Open Space for park, playground and II. Whether the percentage of the open space allocated exclusively for parks, playgrounds and
playlots, since these are intended primarily for the benefit of the residents of the subdivision. While recreational use is to be based on the gross area of the subdivision or on the total area reserved for open
laudable to the general public, a Drug Rehabilitation Center in a subdivision will be a cause of concern space.
and constant worry to its residents.
III. Whether private respondent as subdivision owner/developer may validly impose conditions in the
As to the third issue in paragraph (3), the passage of the Ordinance changing the purpose of the building Amended Deed of Donation regarding the use of the open space allocated exclusively for parks and
constructed in the donated properties from a Drug Rehabilitation Center to a Sports Center comes too playgrounds.
late. It should have been passed upon the demand of the plaintiff to the defendant City of Angeles to
stop the construction of the Drug Rehabilitation Center, not after the complaint was filed.
IV. Whether or not the construction of the Drug Rehabilitation Center on the donated open space may
be enjoined.
Besides, in seeking the revocation of the Amended Deed of Donation, plaintiff also relies on the failure of
the defendant City of Angeles to submit the plan of the proposed Sports Center within six (6) months and
construction of the same within five years from March 9, 1984, which are substantial violations of the V. Whether the donation by respondent as subdivision owner/developer of the open space of its
conditions imposed in the Amended Deed of Donation. subdivision in favor of petitioner City of Angeles may be revoked for alleged violation of the Amended
Deed of Donation.

The dispositive portion of the RTC decision reads:

Central to this entire controversy is the question of whether the donation of the open space may
be revoked at all.
WHEREFORE, judgment is hereby rendered:

(1) Enjoining defendants, its officers, employees and all persons acting on their behalf to perpetually
cease and desist from constructing a Drug Rehabilitation Center or any other building or improvement First Issue: Developer Legally Bound to Donate Open Space
on the Donated Land.

The law involved in the instant case is Presidential Decree No. 1216, dated October 14,
(2) Declaring the amended Deed of Donation revoked and rescinded and ordering defendants to
1977,[9] which reads:
peacefully vacate and return the Donated Land to plaintiff, together with all the improvements existing
thereon.And,
PRESIDENTIAL DECREE NO. 1216
(3) Denying the award of compensatory or actual and exemplary damages including attorneys fees.
Defining Open Space In Residential Subdivisions And Amending Section 31 Of Presidential Decree No.
957 Requiring Subdivision Owners To Provide Roads, Alleys, Sidewalks And Reserve Open Space For
NO PRONOUNCEMENT AS TO COST.
Parks Or Recreational Use.

In March 1989, petitioners filed their Notice of Appeal. On April 15, 1989, while the appeal was
WHEREAS, there is a compelling need to create and maintain a healthy environment in human
pending, petitioners inaugurated the Drug Rehabilitation Center.[7]
settlements by providing open spaces, roads, alleys and sidewalks as may be deemed suitable to
enhance the quality of life of the residents therein;
WHEREAS, such open spaces, roads, alleys and sidewalks in residential subdivisions are for public use and
are, therefore, beyond the commerce of men;
WHEREAS, pursuant to Presidential Decree No. 953 at least thirty per cent (30%) of the total area of a
subdivision must be reserved, developed and maintained as open space for parks and recreational areas,
the cost of which will ultimately be borne by the lot buyers which thereby increase the acquisition price
of subdivision lots beyond the reach of the common mass;
WHEREAS, thirty percent (30%) required open space can be reduced to a level that will make the
subdivision industry viable and the price of residential lots within the means of the low income group at
the same time preserve the environmental and ecological balance through rational control of land use
and proper design of space and facilities;
WHEREAS, pursuant to Presidential Decree No. 757, government efforts in housing, including resources,
functions and activities to maximize results have been concentrated into one single agency, namely, the
National Housing Authority;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers
vested in me by the Constitution, do hereby order and decree:
SECTION 1. For purposes of this Decree, the term open space shall mean an area reserved exclusively for
parks, playgrounds, recreational uses, schools, roads, places of worship, hospitals, health centers,
barangay centers and other similar facilities and amenities.
SECTION 2. Section 31 of Presidential Decree No. 957 is hereby amended to read as follows:
Section 31. Roads, Alleys, Sidewalks and Open Spaces The owner as developer of a subdivision shall
provide adequate roads, alleys and sidewalks. For subdivision projects one (1) hectare or more, the
owner or developer shall reserve thirty per cent (30%) of the gross area for open space. Such open
space shall have the following standards allocated exclusively for parks, playgrounds and recreational
use:
a. 9% of gross area for high density or social housing (66 to 100 family lots per gross hectare).
b. 7% of gross area for medium-density or economic housing (21 to 65 family lots per gross hectare).
c. 3.5% of gross area for low-density or open market housing (20 family lots and below per gross
hectare).
These areas reserved for parks, playgrounds and recreational use shall be non-alienable public lands, and
non-buildable. The plans of the subdivision project shall include tree planting on such parts of the
subdivision as may be designated by the Authority.
Upon their completion certified to by the Authority, the roads, alleys, sidewalks and playgrounds shall be
donated by the owner or developer to the city or municipality and it shall be mandatory for the local
governments to accept provided, however, that the parks and playgrounds may be donated to the
Homeowners Association of the project with the consent of the city or municipality concerned. No
portion of the parks and playgrounds donated thereafter shall be converted to any other purpose or
purposes.
SECTION 3. Sections 2 and 5 of Presidential Decree No. 953 are hereby repealed and other laws, decrees,
executive orders, institutions, rules and regulations or parts thereof inconsistent with these provisions
are also repealed or amended accordingly.
SECTION 4. This Decree shall take effect immediately.
Pursuant to the wording of Sec. 31 of P.D. 957 as above amended by the aforequoted P.D. No.
1216, private respondent is under legal obligation to donate the open space exclusively allocated for
parks, playgrounds and recreational use to the petitioner.
This can be clearly established by referring to the original provision of Sec. 31 of P.D. 957, which
reads as follows:
SECTION 31. Donation of roads and open spaces to local government. The registered owner or developer
of the subdivision or condominium project, upon completion of the development of said projectmay, at
his option, convey by way of donation the roads and open spaces found within the project to the city or
municipality wherein the project is located. Upon acceptance of the donation by the city or municipality
concerned, no portion of the area donated shall thereafter be converted to any other purpose or
purposes unless after hearing, the proposed conversion is approved by the Authority. (Italics supplied)
It will be noted that under the aforequoted original provision, it was optional on the part of the
owner or developer to donate the roads and open spaces found within the project to the city or
municipality where the project is located. Elsewise stated, there was no legal obligation to make the
donation.
However, said Sec. 31 as amended now states in its last paragraph:
Upon their completion x x x, the roads, alleys, sidewalks and playgrounds shall be donated by the owner
or developer to the city or municipality and it shall be mandatory for the local government to accept;
provided, however, that the parks and playgrounds may be donated to the Homeowners Association of
the project with the consent of the city or municipality concerned. x x x.
It is clear from the aforequoted amendment that it is no longer optional on the part of the subdivision
owner/developer to donate the open space for parks and playgrounds; rather there is now a legal
obligation to donate the same. Although there is a proviso that the donation of the parks and
playgrounds may be made to the homeowners association of the project with the consent of the city of
municipality concerned, nonetheless, the owner/developer is still obligated under the law to
donate. Such option does not change the mandatory character of the provision. The donation has to be
made regardless of which donee is picked by the owner/developer. The consent requirement before the
same can be donated to the homeowners association emphasizes this point.
Second Issue: Percentage of Area for Parks and Playgrounds
Petitioners contend that the 3.5% to 9% allotted by Sec. 31 for parks, playgrounds and
recreational uses should be based on the gross area of the entire subdivision, and not merely on the area
of the open space alone, as contended by private respondent and as decided by the respondent Court.[10]
The petitioners are correct. The language of Section 31 of P.D. 957 as amended by Section 2 of
P.D. 1216 is wanting in clarity and exactitude, but it can be easily inferred that the phrase gross area
refers to the entire subdivision area. The said phrase was used four times in the same section in two
sentences, the first of which reads:
x x x For subdivision projects one (1) hectare or more, the owner or developer shall reserve thirty per
cent (30%) of the gross area for open space. x x x.
Here, the phrase 30% of the gross area refers to the total area of the subdivision, not of the open
space. Otherwise, the definition of open space would be circular. Thus, logic dictates that the same basis
be applied in the succeeding instances where the phrase open space is used, i.e., 9% of gross area . . . 7%
of gross area . . . 3.5% of gross area . . .Moreover, we agree with petitioners that construing the 3.5% to
9% as applying to the totality of the open space would result in far too small an area being devoted for
parks, playgrounds, etc., thus rendering meaningless and defeating the purpose of the statute. This
becomes clear when viewed in the light of the original requirement of P.D. 953 (Requiring the Planting of
Trees in Certain Places, etc.), Section 2 of which reads:
Sec. 2. Every owner of land subdivided into residential/commercial/industrial lots after the effectivity of
this Decree shall reserve, develop and maintain not less than thirty percent (30%) of the total area of the
subdivision, exclusive of roads, service streets and alleys, as open space for parks and recreational areas.
No plan for a subdivision shall be approved by the Land Registration Commission or any office or agency
of the government unless at least thirty percent (30%) of the total area of the subdivision, exclusive of
roads, service streets and alleys, is reserved as open space for parks and recreational areas x x x.
To our mind, it is clear that P.D. 1216 was an attempt to achieve a happy compromise and a
realistic balance between the imperatives of environmental planning and the need to maintain economic
feasibility in subdivision and housing development, by reducing the required area for parks, playgrounds
and recreational uses from thirty percent (30%) to only 3.5% - 9% of the entire area of the subdivision.
Third Issue: Imposition of Conditions in Donation of Open Space
Petitioners argue that since the private respondent is required by law to donate the parks and
playgrounds, it has no right to impose the condition in the Amended Deed of Donation that the
properties donated shall be devoted and utilized solely for the site of the Angeles City Sports Center. It
cannot prescribe any condition as to the use of the area donated because the use of the open spaces is
already governed by P.D. 1216. In other words, the donation should be absolute. Consequently, the
conditions in the amended deed which were allegedly violated are deemed not written. Such being the
case, petitioners cannot be considered to have committed any violation of the terms and conditions of
the said amended deed, as the donation is deemed unconditional, and it follows that there is no basis for
revocation of the donation.
However, the general law on donations does not prohibit the imposition of conditions on a
donation so long as the conditions are not illegal or impossible.[11]
In regard to donations of open spaces, P.D. 1216 itself requires among other things that the
recreational areas to be donated be based, as aforementioned, on a percentage (3.5%, 7%, or 9%) of the
total area of the subdivision depending on whether the subdivision is low -, medium -, or high-density. It
further declares that such open space devoted to parks, playgrounds and recreational areas are non-
alienable public land and non-buildable. However, there is no prohibition in either P.D. 957 or P.D. 1216
against imposing conditions on such donation.
We hold that any condition may be imposed in the donation, so long as the same is not contrary
to law, morals, good customs, public order or public policy. The contention of petitioners that the
donation should be unconditional because it is mandatory has no basis in law. P.D. 1216 does not
provide that the donation of the open space for parks and playgrounds should be unconditional. To rule
that it should be so is tantamount to unlawfully expanding the provisions of the decree.[12]
In the case at bar, one of the conditions imposed in the Amended Deed of Donation is that the
donee should build a sports complex on the donated land. Since P.D. 1216 clearly requires that the 3.5%
to 9% of the gross area allotted for parks and playgrounds is non-buildable, then the obvious question
arises whether or not such condition was validly imposed and is binding on the donee. It is clear that the
non-buildable character applies only to the 3.5% to 9% area set by law. If there is any excess land over
and above the 3.5% to 9% required by the decree, which is also used or allocated for parks, playgrounds
and recreational purposes, it is obvious that such excess area is not covered by the non-buildability
restriction. In the instant case, if there be an excess, then the donee would not be barred from
developing and operating a sports complex thereon, and the condition in the amended deed would then
be considered valid and binding.
To determine if the over 50,000 square meter area donated pursuant to the amended deed would
yield an excess over the area required by the decree, it is necessary to determine under which density
category the Timog Park subdivision falls.
If the subdivision falls under the low density or open market housing category, with 20 family lots
or below per gross hectare, the developer will need to allot only 3.5% of gross area for parks and
playgrounds, and since the donated land constitutes more than five (5) percent of the total land area of
the subdivision,[13] there would therefore be an excess of over 1.5% of gross area which would not be
non-buildable. Petitioners, on the other hand, alleged (and private respondent did not controvert) that
the subdivision in question is a medium-density or economic housing subdivision based on the sizes of
the family lots donated in the amended deed,[14] for which category the decree mandates that not less
than 7% of gross area be set aside. Since the donated land constitutes only a little more than 5% of the
gross area of the subdivision, which is less than the area required to be allocated for non-buildable open
space, therefore there is no excess land to speak of. This then means that the condition to build a sports
complex on the donated land is contrary to law and should be considered as not imposed.
Fourth Issue: Injunction vs. Construction of the Drug Rehabilitation Center
Petitioners argue that the court cannot enjoin the construction of the drug rehabilitation center
because the decision of the trial court came only after the construction of the center was completed
and, based on jurisprudence, there can be no injunction of events that have already transpired.[15]
Private respondent, on the other hand, counters that the operation of the center is a continuing
act which would clearly cause injury to private respondent, its clients, and residents of the subdivision,
and thus, a proper subject of injunction.[16] Equity should move in to warrant the granting of the
injunctive relief if persistent repetition of the wrong is threatened.[17]
In light of Sec. 31 of P.D. 957, as amended, declaring the open space for parks, playgrounds and
recreational area as non-buildable, it appears indubitable that the construction and operation of a drug
rehabilitation center on the land in question is a continuing violation of the law and thus should be
enjoined.
Furthermore, the factual background of this case warrants that this Court rule against petitioners
on this issue. We agree with and affirm the respondent Courts finding that petitioners committed acts
mocking the judicial system.[18]
x x x When a writ of preliminary injunction was sought for by the appellee [private respondent] to enjoin
the appellants [petitioners herein] from further continuing with the construction of the said center, the
latter resisted and took refuge under the provisions of Presidential Decree No. 1818 (which prohibits
writs of preliminary injunction) to continue with the construction of the building. Yet, the appellants also
presented City Council Resolution No. 227 which allegedly repealed the previous Resolution authorizing
the City Government to construct a Drug Rehabilitation Center on the donated property, by changing the
purpose and usage of the Drug Rehabilitation Center to Sports Development and Youth Center to make it
conform to the Sports Complex Project therein. Under this Resolution No. 227, the appellants claimed
that they have abandoned all plans for the construction of the Drug Rehabilitation Center. Nonetheless,
when judgment was finally rendered on February 15, 1989, the appellants were quick to state that they
have not after all abandoned their plans for the center as they have in fact inaugurated the same on
April 15, 1989. In plain and simple terms, this act is a mockery of our judicial system perpetrated by the
appellants. For them to argue that the court cannot deal on their Drug Rehabilitation Center is not only
preposterous but also ridiculous.
It is interesting to observe that under the appealed decision the appellants and their officers, employees
and all other persons acting on their behalf were perpetually enjoined to cease and desist from
constructing a Drug Rehabilitation Center on the donated property. Under Section 4 of Rule 39 of the
Rules of Court, it is provided that:
Section 4 A judgment in an action for injunction shall not be stayed after its rendition and before an
appeal is taken or during the pendency of an appeal.
Accordingly, a judgment restraining a party from doing a certain act is enforceable and shall remain in
full force and effect even pending appeal. In the case at bar, the cease and desist order therefore still
stands. Appellants persistence and continued construction and, subsequent, operation of the Drug
Rehabilitation Center violate the express terms of the writ of injunction lawfully issued by the lower
court.
This Court finds no cogent reason to reverse the above mentioned findings of the respondent
court. The allegation of the petitioners that the construction of the center was finished before the
judgment of the trial court was rendered deserves scant consideration because it is self-serving and is
completely unsupported by other evidence.
The fact remains that the trial court rendered judgment enjoining the construction of the drug
rehabilitation center, revoking the donation and ordering the return of the donated land. In spite of such
injunction, petitioners publicly flaunted their disregard thereof with the subsequent inauguration of the
center on August 15, 1989. The operation of the center, after inauguration, is even more censurable.
Fifth Issue: Revocation of a Mandatory Donation Because of Non-compliance With an Illegal Condition
The private respondent contends that the building of said drug rehabilitation center is violative of
the Amended Deed of Donation. Therefore, under Article 764 of the New Civil Code and stipulation no. 8
of the amended deed, private respondent is empowered to revoke the donation when the donee has
failed to comply with any of the conditions imposed in the deed.
We disagree. Article 1412 of the Civil Code which provides that:
If the act in which the unlawful or forbidden cause consists does not constitute a criminal offense, the
following rules shall be observed:
(1) When the fault is on the part of both contracting parties, neither may recover what he has given by
virtue of the contract, or demand the performance of the others undertaking;
comes into play here. Both petitioners and private respondents are in violation of P.D. 957 as amended,
for donating and accepting a donation of open space less than that required by law, and for agreeing to
build and operate a sports complex on the non-buildable open space so donated; and petitioners, for
constructing a drug rehabilitation center on the same non-buildable area.
Moreover, since the condition to construct a sports complex on the donated land has previously
been shown to be contrary to law, therefore, stipulation No. 8 of the amended deed cannot be
implemented because (1) no valid stipulation of the amended deed had been breached, and (2) it is
highly improbable that the decree would have allowed the return of the donated land for open space
under any circumstance, considering the non-alienable character of such open space, in the light of the
second Whereas clause of P.D. 1216 which declares that xxx such open spaces, roads, alleys and
sidewalks in residential subdivisions are for public use and are, therefore, beyond the commerce of men.
Further, as a matter of public policy, private respondent cannot be allowed to evade its statutory
obligation to donate the required open space through the expediency of invoking petitioners breach of
the aforesaid condition. It is a familiar principle that the courts will not aid either party to enforce an
illegal contract, but will leave them both where they find them.Neither party can recover damages from
the other arising from the act contrary to law, or plead the same as a cause of action or as a
defense. Each must bear the consequences of his own acts.[19]
There is therefore no legal basis whatsoever to revoke the donation of the subject open space and
to return the donated land to private respondent. The donated land should remain with the donee as the
law clearly intended such open spaces to be perpetually part of the public domain, non-alienable and
permanently devoted to public use as such parks, playgrounds or recreation areas.
Removal/Demolition of Drug Rehabilitation Center
Inasmuch as the construction and operation of the drug rehabilitation center has been established
to be contrary to law, the said center should be removed or demolished. At this juncture, we hasten to
add that this Court is and has always been four-square behind the governments efforts to eradicate the
drug scourge in this country. But the end never justifies the means, and however laudable the purpose of
the construction in question, this Court cannot and will not countenance an outright and continuing
violation of the laws of the land, especially when committed by public officials.
In theory, the cost of such demolition, and the reimbursement of the public funds expended in the
construction thereof, should be borne by the officials of the City of Angeles who ordered and directed
such construction. This Court has time and again ruled that public officials are not immune from
damages in their personal capacities arising from acts done in bad faith. Otherwise stated, a public
official may be liable in his personal capacity for whatever damage he may have caused by his act done
with malice and in bad faith or beyond the scope of his authority or jurisdiction.[20] In the instant case,
the public officials concerned deliberately violated the law and persisted in their violations, going so far
as attempting to deceive the courts by their pretended change of purpose and usage for the center, and
making a mockery of the judicial system. Indisputably, said public officials acted beyond the scope of
their authority and jurisdiction and with evident bad faith. However, as noted by the trial court,[21] the
petitioners mayor and members of the Sangguniang Panlungsod of Angeles City were sued only in
their official capacities, hence, they could not be held personally liable without first giving them their day
in court. Prevailing jurisprudence[22] holding that public officials are personally liable for damages arising
from illegal acts done in bad faith are premised on said officials having been sued both in their official
and personal capacities.
 After due consideration of the circumstances, we believe that the fairest and most equitable
solution is to have the City of Angeles, donee of the subject open space and, ostensibly, the main
beneficiary of the construction and operation of the proposed drug rehabilitation center, undertake the
demolition and removal of said center, and if feasible, recover the cost thereof from the city officials
concerned.

WHEREFORE, the assailed Decision of the Court of Appeals is hereby MODIFIED as follows:

(1) Petitioners are hereby ENJOINED perpetually from operating the drug rehabilitation center or
any other such facility on the donated open space.

(2) Petitioner City of Angeles is ORDERED to undertake the demolition and removal of said drug
rehabilitation center within a period of three (3) months from finality of this Decision, and thereafter, to
devote the said open space for public use as a park, playground or other recreational use.

(3) The Amended Deed of Donation dated November 26, 1984 is hereby declared valid and
subsisting, except that the stipulations or conditions therein concerning the construction of the Sports
Center or Complex are hereby declared void and as if not imposed, and therefore of no force and effect.

No costs.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 74135 May 28, 1992
M. H. WYLIE and CAPT. JAMES WILLIAMS, petitioners,
vs.
AURORA I. RARANG and THE HONORABLE INTERMEDIATE APPELLATE COURT, respondents.
GUTIERREZ, JR., J.:
The pivotal issue in this petition centers on the extent of the "immunity from suit" of the officials of a
United States Naval Base inside Philippine territory.
In February, 1978, petitioner M. H. Wylie was the assistant administrative officer while petitioner Capt.
James Williams was the commanding officer of the U. S. Naval Base in Subic Bay, Olongapo City. Private
respondent Aurora I. Rarang was an employee in the office of the Provost Marshal assigned as
merchandise control guard.
M. H. Wylie, in his capacity as assistant administrative officer of the U.S. Naval Station supervised the
publication of the "Plan of the Day" (POD) which was published daily by the US Naval Base station. The
POD featured important announcements, necessary precautions, and general matters of interest to
military personnel. One of the regular features of the POD was the "action line inquiry." On February 3,
1978, the POD published, under the "NAVSTA ACTION LINE INQUIRY" the following:
Question: I have observed that Merchandise Control inspector/inspectress are (sic)
consuming for their own benefit things they have confiscated from Base
Personnel. The observation is even more aggravated by consuming such
confiscated items as cigarettes and food stuffs PUBLICLY. This is not to mention
"Auring" who is in herself, a disgrace to her division and to the Office of the
Provost Marshal. In lieu of this observation, may I therefore, ask if the head of the
Merchandise Control Division is aware of this malpractice?
Answer: Merchandise Control Guards and all other personnel are prohibited from
appropriating confiscated items for their own consumption or use. Two locked
containers are installed at the Main Gate area for deposit of confiscated items and
the OPM evidence custodian controls access to these containers.
Merchandise Control Guards are permitted to eat their meals at their worksite due
to heavy workload. Complaints regarding merchandise control guards procedure
or actions may be made directly at the Office of the Provost Marshal for
immediate and necessary action. Specific dates and time along with details of
suspected violations would be most appreciated. Telephone 4-3430/4-3234 for
further information or to report noted or suspected irregularities. Exhibits E & E-1.
(Rollo, pp. 11-12)
The private respondent was the only one who was named "Auring" in the Office of the Provost Marshal.
That the private respondent was the same "Auring" referred to in the POD was conclusively proven when
on February 7, 1978, petitioner M. H. Wylie wrote her a letter of apology for the "inadvertent"
publication. The private respondent then commenced an action for damages in the Court of First
Instance of Zambales (now Regional Trial Court) against
M. H. Wylie, Capt. James Williams and the U. S. Naval Base. She alleged that the article constituted false,
injurious, and malicious defamation and libel tending to impeach her honesty, virtue and reputation
exposing her to public hatred, contempt and ridicule; and that the libel was published and circulated in
the English language and read by almost all the U. S. Naval Base personnel. She prayed that she be
awarded P300,000.00 as moral damages; exemplary damages which the court may find proper; and
P50,000.00 as attorney's fees.
In response to the complaint, the defendants filed a motion to dismiss anchored on three grounds:
1. Defendants M. H. Wylie and Capt. James Williams acted in the performance of
their official functions as officers of the United States Navy and are, therefore,
immune from suit;
2. The United States Naval Base is an instrumentality of the US government which
cannot be sued without its consent; and
3. This Court has no jurisdiction over the subject matter as well as the parties in
this case. (Record on Appeal, pp. 133-134)
The motion was, however, denied.
In their answer, the defendants reiterated the lack of jurisdiction of the court over the case.
In its decision, the trial court ruled that the acts of defendants M. H. Wylie and Cpt. James Williams were
not official acts of the government of the United States of America in the operation and control of the
Base but personal and tortious acts which are exceptions to the general rule that a sovereign country
cannot be sued in the court of another country without its consent. In short, the trial court ruled that the
acts and omissions of the two US officials were not imputable against the US government but were done
in the individual and personal capacities of the said officials. The trial court dismissed the suit against the
US Naval Base. The dispositive portion of the decision reads as follows:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the
defendants jointly and severally, as follows:
1) Ordering defendants M. H. Wylie and Capt. James Williams to pay the plaintiff
Aurora Rarang the sum of one hundred thousand (P100,000.00) pesos by way of
moral and exemplary damages;
2) Ordering defendants M. H. Wylie and Capt. James Williams to pay the plaintiff
the sum of thirty thousand (P30,000.00) pesos by way of attorney's fees and
expenses of litigation; and
 3) To pay the costs of this suit.
Counterclaims are dismissed.
Likewise, the suit against the U.S. Naval Base is ordered dismissed. (Record on
Appeal, p. 154)
On appeal, the petitioners reiterated their stance that they are immune from suit since the subject
publication was made in their official capacities as officers of the U. S. Navy. They also maintained that
they did not intentionally and maliciously cause the questioned publication.
The private respondent, not satisfied with the amount of damages awarded to her, also appealed the
trial court's decision.
Acting on these appeals, the Intermediate Appellate Court, now Court of Appeals, modified the trial
court's decision, to wit:
WHEREFORE, the judgment of the court below is modified so that the defendants
are ordered to pay the plaintiff, jointly and severally, the sum of P175,000.00 as
moral damages and the sum of P60,000.00 as exemplary damages. The rest of the
judgment appealed from is hereby affirmed in toto. Costs against the defendants-
appellants. (Rollo, p. 44)
The appellate court denied a motion for reconsideration filed by the petitioners.
Hence, this petition.
In a resolution dated March 9, 1987, we gave due course to the petition.
The petitioners persist that they made the questioned publication in the performance of their official
functions as administrative assistant, in the case of M. H. Wylie, and commanding officer, in the case of
Capt. James Williams of the US Navy assigned to the U. S. Naval Station, Subic Bay, Olongapo City and
were, therefore, immune from suit for their official actions.
In the case of United States of America v. Guinto (182 SCRA 644 [1990]), we discussed the principle of the
state immunity from suit as follows:
The rule that a state may not be sued without its consent, now expressed in Article
XVI, Section 3, of the 1987 Constitution, is one of the generally accepted principles
of international law that we have adopted as part of the law of our land under
Article II, Section 2.
xxx xxx xxx
Even without such affirmation, we would still be bound by the generally accepted
principles of international law under the doctrine of incorporation. Under this
doctrine, as accepted by the majority of states, such principles are deemed
incorporated in the law of every civilized state as a condition and consequence of
its membership in the society of nations. Upon its admission to such society, the
state is automatically obligated to comply with these principles in its relations with
other states.
As applied to the local state, the doctrine of state immunity is based on the
justification given by Justice Holmes that "there can be no legal right against the
authority which makes the law on which the right depends." (Kawanakoa v.
Polybank, 205 U.S. 349) There are other practical reasons for the enforcement of
the doctrine. In the case of the foreign state sought to be impleaded in the local
jurisdiction, the added inhibition is expressed in the maxim par in parem, non
habet imperium. All states are sovereign equals and cannot assert jurisdiction over
one another. A contrary disposition would, in the language of a celebrated case,
"unduly vex the peace of nations." (Da Haber v. Queen of Portugal, 17 Q. B. 171)
While the doctrine appears to prohibit only suits against the state without its
consent, it is also applicable to complaints filed against officials of the state for
acts allegedly performed by them in the discharge of their duties. The rule is that if
the judgment against such officials will require the state itself to perform an
affirmative act to satisfy the same, such as the appropriation of the amount
needed to pay the damages awarded against them, the suit must be regarded as
against the state itself although it has not been formally impleaded. (Garcia v.
Chief of Staff, 16 SCRA 120) In such a situation, the state may move to dismiss the
complaint on the ground that it has been filed without its consent.
The doctrine is sometimes derisively called "the royal prerogative of dishonesty"
because of the privilege it grants the state to defeat any legitimate claim against it
by simply invoking its non-suability. That is hardly fair, at least in democratic
societies, for the state is not an unfeeling tyrant unmoved by the valid claims of its
citizens. In fact, the doctrine is not absolute and does not say the state may not be
sued under any circumstance. On the contrary, the rule says that the state may not
be sued without its consent, which clearly imports that it may be sued if it
consents.
The consent of the state to be sued may be manifested expressly or impliedly.
Express consent may be embodied in a general law or a special law. Consent is
implied when the state enters into a contract it itself commences litigation.
xxx xxx xxx
The above rules are subject to qualification. Express consent is effected only by the
will of the legislature through the medium of a duly enacted statute. (Republic v.
Purisima, 78 SCRA 470) We have held that not all contracts entered into by the
government will operate as a waiver of its non-suability; distinction must be made
between its sovereign and proprietary acts. (United States of America v. Ruiz, 136
SCRA 487) As for the filing of a complaint by the government, suability will result
only where the government is claiming affirmative relief from the defendant. (Lim
v. Brownell, 107 Phil. 345) (at pp. 652-655)
In the same case we had opportunity to discuss extensively the nature and extent of immunity from suit
of United States personnel who are assigned and stationed in Philippine territory, to wit:
In the case of the United States of America, the customary rule of international law
on state immunity is expressed with more specificity in the RP-US Bases Treaty.
Article III thereof provides as follows:
It is mutually agreed that the United States shall have the
rights, power and authority within the bases which are
necessary for the establishment, use, operation and defense
thereof or appropriate for the control thereof and all the
rights, power and authority within the limits of the territorial
waters and air space adjacent to, or in the vicinity of, the
bases which are necessary to provide access to them or
appropriate for their control.
over the present case for unlawful detainer. The question of
lack of jurisdiction was raised and interposed at the very
beginning of the action. The U.S. Government has not given
its consent to the filing of this suit which is essentially
against her, though not in name. Moreover, this is not only a
case of a citizen filing a suit against his own Government
without the latter's consent but it is of a citizen filing an
action against a foreign government without said
government's consent, which renders more obvious the lack
of jurisdiction of the courts of his country. The principles of
law behind this rule are so elementary and of such general
acceptance that we deem it unnecessary to cite authorities
in support thereof."

The petitioners also rely heavily on Baer v. Tizon, (57 SCRA 1) along with several
xxx xxx xxx
other decisions, to support their position that they are not suable in the cases
below, the United States not having waived its sovereign immunity from suit. It is
emphasized that in Baer, the Court held: It bears stressing at this point that the above observations do not confer on the
United States of America a blanket immunity for all acts done by it or its agents in
the Philippines. Neither may the other petitioners claim that they are also
The invocation of the doctrine of immunity from suit of a
insulated from suit in this country merely because they have acted as agents of the
foreign state without its consent is appropriate. More
United States in the discharge of their official functions.
specifically, insofar as alien armed forces is concerned, the
starting point is Raquiza v. Bradford, a 1945 decision. In
dismissing a habeas corpus petition for the release of There is no question that the United States of America, like any other state, will be
petitioners confined by American army authorities, Justice deemed to have impliedly waived its non-suability if it has entered into a contract
Hilado, speaking for the Court, cited Coleman in its proprietary or private capacity. It is only when the contract involves its
v. Tennessee, where it was explicitly declared: "It is well sovereign or governmental capacity that no such waiver may be implied. This was
settled that a foreign army, permitted to march through a our ruling in United States of America v. Ruiz, (136 SCRA 487) where the
friendly country or to be stationed in it, by permission of its transaction in question dealt with the improvement of the wharves in the naval
government or sovereign, is exempt from the civil and installation at Subic Bay. As this was a clearly governmental function, we held that
criminal jurisdiction of the place." Two years later, in Tubb the contract did not operate to divest the United States of its sovereign immunity
and Tedrow v. Griess, this Court relied on the ruling from suit. In the words of Justice Vicente Abad Santos:
in Raquiza v. Bradford and cited in support thereof excerpts
from the works of the following authoritative writers: Vattel,
The traditional rule of immunity excepts a State from being
Wheaton, Hall, Lawrence, Oppenheim, Westlake, Hyde, and
sued in the courts of another State without its consent or
McNair and Lauterpacht. Accuracy demands the clarification
waiver. This rule is a necessary consequence of the
that after the conclusion of the Philippine-American Military
principles of independence and equality of States. However,
Bases Agreement, the treaty provisions should control on
the rules of International Law are not petrified; they are
such matter, the assumption being that there was a
constantly developing and evolving. And because the
manifestation of the submission to jurisdiction on the part of
activities of states have multiplied, it has been necessary to
the foreign power whenever appropriate. More to the point
distinguish them between sovereign and governmental
is Syquia v. Almeda Lopez, where plaintiffs as lessors sued
acts (jure imperii) and private, commercial and proprietary
the Commanding General of the United States Army in the
acts (jure gestionis). The result is that State immunity now
Philippines, seeking the restoration to them of the
extends only to acts jure imperii. The restrictive application
apartment buildings they owned leased to the United States
of State immunity is now the rule in the United States, the
armed forces station in the Manila area. A motion to dismiss
United Kingdom and other states in Western Europe.
on the ground of non-suability was filed and upheld by
respondent Judge. The matter was taken to this Court in
a mandamus proceeding. It failed. It was the ruling that xxx xxx xxx
respondent Judge acted correctly considering that the
"action must be considered as one against the U.S. The restrictive application of State immunity is proper only
Government." The opinion of Justice Montemayor when the proceedings arise out of commercial transactions
continued: "It is clear that the courts of the Philippines of the foreign sovereign, its commercial activities or
including the Municipal Court of Manila have no jurisdiction economic affairs. Stated differently, a State may be said to
 have descended to the level of an individual and can thus be
deemed to have tacitly given its consent to be sued only
when it enters into business contracts. It does not apply
where the contract relates to the exercise of its sovereign
functions. In this case the projects are an integral part of the
naval base which is devoted to the defense of both the
United States and the Philippines, indisputably a function of
the government of the highest order; they are not utilized
for nor dedicated to commercial or business purposes.
The other petitioners in the cases before us all aver they have acted in the
discharge of their official functions as officers or agents of the United States.
However, this is a matter of evidence. The charges against them may not be
summarily dismissed on their mere assertion that their acts are imputable to the
United States of America, which has not given its consent to be sued. In fact, the
defendants are sought to be held answerable for personal torts in which the
United States itself is not involved. If found liable, they and they alone must satisfy
the judgment. (At pp. 655-658)
In the light of these precedents, we proceed to resolve the present case.
The POD was published under the direction and authority of the commanding officer, U.S. Naval Station
Subic Bay. The administrative assistant, among his other duties, is tasked to prepare and distribute the
POD. On February 3, 1978, when the questioned article was published in the POD, petitioner Capt. James
Williams was the commanding officer while petitioner M.H. Wylie was the administrative assistant of the
US Naval Station at Subic bay.
The NAVSTA ACTION LINE INQUIRY is a regular feature of the POD. It is a telephone answering device in
the office of the Administrative Assistant. The Action Line is intended to provide personnel access to the
Commanding Officer on matters they feel should be brought to his attention for correction or
investigation. The matter of inquiry may be phoned in or mailed to the POD. (TSN, September 9, 1980,
pp. 12-13, Jerry Poblon) According to
M. H. Wylie, the action line naming "Auring" was received about three (3) weeks prior to its being
published in the POD on February 3, 1978. It was forwarded to Rarang's office of employment, the
Provost Marshal, for comment. The Provost Marshal office's response ". . . included a short note stating
that if the article was published, to remove the name." (Exhibit 8-A, p. 5) The Provost Marshal's response
was then forwarded to the executive officer and to the commanding officer for approval. The approval of
the Commanding officer was forwarded to the office of the Administrative Assistant for inclusion in the
POD. A certain Mrs. Dologmodin, a clerk typist in the office of the Administrative Assistant prepared the
smooth copy of the POD. Finally, M. H. Wylie, the administrative assistant signed the smooth copy of the
POD but failed to notice the reference to "Auring" in the action line inquiry. (Exh. 8-A, pp. 4-5, Questions
Nos. 14-15).
There is no question, therefore, that the two (2) petitioners actively participated in screening the
features and articles in the POD as part of their official functions. Under the rule that U.S. officials in the
performance of their official functions are immune from suit, then it should follow that the petitioners
may not be held liable for the questioned publication.
It is to be noted, however, that the petitioners were sued in their personal capacities for their alleged
tortious acts in publishing a libelous article.
The question, therefore, arises are American naval officers who commit a crime or tortious act while
discharging official functions still covered by the principle of state immunity from suit? Pursuing the
question further, does the grant of rights, power, and authority to the United States under the RP-US
Bases Treaty cover immunity of its officers from crimes and torts? Our answer is No.
Killing a person in cold blood while on patrol duty, running over a child while driving with reckless
imprudence on an official trip, or slandering a person during office hours could not possibly be covered
by the immunity agreement. Our laws and, we presume, those of the United States do not allow the
commission of crimes in the name of official duty.
The case of Chavez v. Sandiganbayan, 193 SCRA 282 [1991] gives the law on immunity from suit of public
officials:
The general rule is that public officials can be held personally accountable for acts
claimed to have been performed in connection with official duties where they
have acted ultra vires or where there is showing of bad faith.
xxx xxx xxx
Moreover, the petitioner's argument that the immunity proviso under Section 4(a)
of Executive Order No. 1 also extends to him is not well-taken. A mere invocation
of the immunity clause does not ipso facto result in the charges being
automatically dropped.
In the case of Presidential Commission on Good Government v. Pea (159 SCRA
556 [1988] then Chief Justice Claudio Teehankee, added a clarification of the
immunity accorded PCGG officials under Section 4(a) of Executive Order No. 1 as
follows:
With respect to the qualifications expressed by Mr. Justice
Feliciano in his separate opinion, I just wish to point out two
things: First, the main opinion does not claim absolute
immunity for the members of the Commission. The cited
section of Executive Order No. 1 provides the Commission's
members immunity from suit thus: "No civil action shall lie
against the Commission or any member thereof for anything
done or omitted in the discharge of the task contemplated
by this order." No absolute immunity like that sought by
Mr. Marcos in his Constitution for himself and his
subordinates is herein involved. It is understood that the
immunity granted the members of the Commission by virtue
of the unimaginable magnitude of its task to recover the
plundered wealth and the State's exercise of police power
was immunity from liability for damages in the official
discharge of the task granted the members of the
Commission much in the same manner that judges are
immune from suit in the official discharge of the functions of
their office.
. . . (at pp. 581-582)
xxx xxx xxx
 Immunity from suit cannot institutionalize irresponsibility and non-accountability
nor grant a privileged status not claimed by any other official of the Republic.
(id., at page 586)
Where the petitioner exceeds his authority as Solicitor General, acts in bad faith,
or, as contended by the private respondent, "maliciously conspir(es) with the
PCGG commissioners in persecuting respondent Enrile by filing against him an
evidently baseless suit in derogation of the latter's constitutional rights and
liberties" (Rollo, p. 417), there can be no question that a complaint for damages
does not confer a license to persecute or recklessly injure another. The actions
governed by Articles 19, 20, 21, and 32 of the Civil Code on Human Relations may
be taken against public officers or private citizens alike. . . . (pp. 289-291)
We apply the same ruling to this case.
The subject article in the US Newsletter POD dated February 3, 1978 mentions a certain "Auring" as ". . a
disgrace to her division and to the Office of the Provost Marshal." The same article explicitly implies that
Auring was consuming and appropriating for herself confiscated items like cigarettes and foodstuffs.
There is no question that the Auring alluded to in the Article was the private respondent as she was the
only Auring in the Office of the Provost Marshal. Moreover, as a result of this article, the private
respondent was investigated by her supervisor. Before the article came out, the private respondent had
been the recipient of commendations by her superiors for honesty in the performance of her duties.
payment of moral damages, considering the wounded feelings and besmirched reputation of the
defendants.
Indeed the imputation of theft contained in the POD dated February 3, 1978 is a defamation against the
character and reputation of the private respondent. Petitioner Wylie himself admitted that the Office of
the Provost Marshal explicitly recommended the deletion of the name Auring if the article were
published. The petitioners, however, were negligent because under their direction they issued the
publication without deleting the name "Auring." Such act or omission is ultra vires and cannot be part of
official duty. It was a tortious act which ridiculed the private respondent. As a result of the petitioners'
act, the private respondent, according to the record, suffered besmirched reputation, serious anxiety,
wounded feelings and social humiliation, specially so, since the article was baseless and false. The
petitioners, alone, in their personal capacities are liable for the damages they caused the private
respondent.
WHEREFORE, the petition is hereby DISMISSED. The questioned decision and resolution of the then
Intermediate Appellate Court, now Court of Appeals, are AFFIRMED.

It may be argued that Captain James Williams as commanding officer of the naval base is far removed in
the chain of command from the offensive publication and it would be asking too much to hold him
responsible for everything which goes wrong on the base. This may be true as a general rule. In this
particular case, however, the records show that the offensive publication was sent to the commanding
officer for approval and he approved it. The factual findings of the two courts below are based on the
records. The petitioners have shown no convincing reasons why our usual respect for the findings of the
trial court and the respondent court should be withheld in this particular case and why their decisions
should be reversed.

Article 2176 of the Civil Code prescribes a civil liability for damages caused by a person's act or omission
constituting fault or negligence, to wit:

Art. 2176. Whoever by act or omission, causes damage to another, there being
fault or negligence is obliged to pay for the damage done. Such fault or negligence,
if there is no pre-existing contractual relation between the parties, is called
a quasi-delict and is governed by the provisions of this Chapter.

"Fault" or "negligence" in this Article covers not only acts "not punishable by law" but also acts criminal
in character, whether intentional or voluntary or negligent." (Andamo v. Intermediate Appellate Court,
191 SCRA 195 [1990]).

Moreover, Article 2219(7) of the Civil Code provides that moral damages may be recovered in case of
libel, slander or any other form of defamation. In effect, the offended party in these cases is given the
right to receive from the guilty party moral damages for injury to his feelings and reputation in addition
to punitive or exemplary damages. (Occena v. Icamina, 181 SCRA 328 [1990]). In another case, Heirs of
Basilisa Justiva v. Gustilo, 7 SCRA 72 [1963], we ruled that the allegation of forgery of documents could
be a defamation, which in the light of Article 2219(7) of the Civil Code could by analogy be ground for
Republic of the Philippines The within petition is thus an off-shot of the action (Civil Case No. SJC-56) instituted by petitioners-
SUPREME COURT spouses on April 17, 1978 against respondent NIA before the then Court of First Instance of Nueva Ecija,
Manila Branch VIII at San Jose City, for damages in connection with the death of their son resulting from the
aforestated accident.
SECOND DIVISION
After trial, the trial court rendered judgment on March 20, 1980 which directed respondent National
Irrigation Administration to pay damages (death benefits) and actual expenses to petitioners. The
G.R. No. L-55963 December 1, 1989
dispositive portion of the decision reads thus:

SPOUSES JOSE FONTANILLA AND VIRGINIA FONTANILLA, petitioners,

. . . . . Judgment is here rendered ordering the defendant National Irrigation
vs.
Administration to pay to the heirs of the deceased P12,000.00 for the death of
HONORABLE INOCENCIO D. MALIAMAN and NATIONAL IRRIGATION ADMINISTRATION, respondents.
Francisco Fontanilla; P3,389.00 which the parents of the deceased had spent for
the hospitalization and burial of the deceased Francisco Fontanilla; and to pay the
G.R. No. L-61045 December 1, 1989 costs. (Brief for the petitioners spouses Fontanilla, p. 4; Rollo, p. 132)

NATIONAL IRRIGATION ADMINISTRATION, appellant, Respondent National Irrigation Administration filed on April 21, 1980, its motion for reconsideration of
vs. the aforesaid decision which respondent trial court denied in its Order of June 13, 1980. Respondent
SPOUSES JOSE FONTANILLA and VIRGINIA FONTANILLA, appellees. National Irrigation Administration thus appealed said decision to the Court of Appeals (C.A.-G.R. No.
67237- R) where it filed its brief for appellant in support of its position.
Cecilio V. Suarez, Jr. for Spouses Fontanilla.
Instead of filing the required brief in the aforecited Court of Appeals case, petitioners filed the instant
Felicisimo C. Villaflor for NIA. petition with this Court.

The sole issue for the resolution of the Court is: Whether or not the award of moral damages, exemplary
damages and attorney's fees is legally proper in a complaint for damages based on quasi-delict which
resulted in the death of the son of herein petitioners.
PARAS, J.:

Petitioners allege:
In G.R. No. L-55963, the petition for review on certiorari seeks the affirmance of the decision dated
March 20, 1980 of the then Court of First Instance of Nueva Ecija, Branch VIII, at San Jose City and its
modification with respect to the denial of petitioner's claim for moral and exemplary damages and
attorneys fees.
In G.R. No. 61045, respondent National Irrigation Administration seeks the reversal of the aforesaid
decision of the lower court. The original appeal of this case before the Court of Appeals was certified to
this Court and in the resolution of July 7, 1982, it was docketed with the aforecited number. And in the
resolution of April 3, this case was consolidated with G.R. No. 55963.
1. The award of moral damages is specifically allowable. under paragraph 3 of
Article 2206 of the New Civil Code which provides that the spouse, legitimate and
illegitimate descendants and ascendants of the deceased may demand moral
damages for mental anguish by reason of the death of the deceased. Should moral
damages be granted, the award should be made to each of petitioners-
spouses individually and in varying amounts depending upon proof of mental and
depth of intensity of the same, which should not be less than P50,000.00 for each
of them.

It appears that on August 21, 1976 at about 6:30 P.M., a pickup owned and operated by respondent
National Irrigation Administration, a government agency bearing Plate No. IN-651, then driven officially
by Hugo Garcia, an employee of said agency as its regular driver, bumped a bicycle ridden by Francisco
Fontanilla, son of herein petitioners, and Restituto Deligo, at Maasin, San Jose City along the Maharlika
Highway. As a result of the impact, Francisco Fontanilla and Restituto Deligo were injured and brought to
the San Jose City Emergency Hospital for treatment. Fontanilla was later transferred to the Cabanatuan
Provincial Hospital where he died.
2. The decision of the trial court had made an impression that respondent National
Irrigation Administration acted with gross negligence because of the accident and
the subsequent failure of the National Irrigation Administration personnel
including the driver to stop in order to give assistance to the, victims. Thus, by
reason of the gross negligence of respondent, petitioners become entitled to
exemplary damages under Arts. 2231 and 2229 of the New Civil Code.

3. Petitioners are entitled to an award of attorney's fees, the amount of which

Garcia was then a regular driver of respondent National Irrigation Administration who, at the time of the
accident, was a licensed professional driver and who qualified for employment as such regular driver of
respondent after having passed the written and oral examinations on traffic rules and maintenance of
vehicles given by National Irrigation Administration authorities.
(20%) had been sufficiently established in the hearing of May 23, 1979.
4. This petition has been filed only for the purpose of reviewing the findings of the
lower court upon which the disallowance of moral damages, exemplary damages
 and attorney's fees was based and not for the purpose of disturbing the other
findings of fact and conclusions of law.
The Solicitor General, taking up the cudgels for public respondent National Irrigation Administration,
contends thus:
1. The filing of the instant petition is rot proper in view of the appeal taken by
respondent National Irrigation Administration to the Court of Appeals against the
judgment sought to be reviewed. The focal issue raised in respondent's appeal to
the Court of Appeals involves the question as to whether or not the driver of the
vehicle that bumped the victims was negligent in his operation of said vehicle. It
thus becomes necessary that before petitioners' claim for moral and exemplary
damages could be resolved, there should first be a finding of negligence on the
part of respondent's employee-driver. In this regard, the Solicitor General alleges
that the trial court decision does not categorically contain such finding.
2. The filing of the "Appearance and Urgent Motion For Leave to File Plaintiff-
Appellee's Brief" dated December 28, 1981 by petitioners in the appeal (CA-G.R.
No. 67237-R; and G. R. No.61045) of the respondent National Irrigation
Administration before the Court of Appeals, is an explicit admission of said
petitioners that the herein petition, is not proper. Inconsistent procedures are
manifest because while petitioners question the findings of fact in the Court of
Appeals, they present only the questions of law before this Court which posture
confirms their admission of the facts.
3. The fact that the parties failed to agree on whether or not negligence caused
the vehicular accident involves a question of fact which petitioners should have
brought to the Court of Appeals within the reglementary period. Hence, the
decision of the trial court has become final as to the petitioners and for this reason
alone, the petition should be dismissed.
4. Respondent Judge acted within his jurisdiction, sound discretion and in
conformity with the law.
5. Respondents do not assail petitioners' claim to moral and exemplary damages
by reason of the shock and subsequent illness they suffered because of the death
of their son. Respondent National Irrigation Administration, however, avers that it
cannot be held liable for the damages because it is an agency of the State
performing governmental functions and driver Hugo Garcia was a regular driver of
the vehicle, not a special agent who was performing a job or act foreign to his
usual duties. Hence, the liability for the tortious act should. not be borne by
respondent government agency but by driver Garcia who should answer for the
consequences of his act.
6. Even as the trial court touched on the failure or laxity of respondent National
Irrigation Administration in exercising due diligence in the selection and
supervision of its employee, the matter of due diligence is not an issue in this case
since driver Garcia was not its special agent but a regular driver of the vehicle.
The sole legal question on whether or not petitioners may be entitled to an award of moral and
exemplary damages and attorney's fees can very well be answered with the application of Arts. 2176 and
2180 of theNew Civil Code.
Art. 2176 thus provides:
Whoever by act omission causes damage to another, there being fault or
negligence, is obliged to pay for damage done. Such fault or negligence, if there is
no pre-existing cotractual relation between the parties, is called a quasi-delict and
is governed by the provisions of this Chapter
Paragraphs 5 and 6 of Art. 21 80 read as follows:
Employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even the though
the former are not engaged in any business or industry.
The State is responsible in like manner when it acts through a special agent.; but
not when the damage has been caused by the official to whom the task done
properly pertains, in which case what is provided in Art. 2176 shall be applicable.
The liability of the State has two aspects. namely:
1. Its public or governmental aspects where it is liable for the tortious acts of
special agents only.
2. Its private or business aspects (as when it engages in private enterprises) where
it becomes liable as an ordinary employer. (p. 961, Civil Code of the Philippines;
Annotated, Paras; 1986 Ed. ).
In this jurisdiction, the State assumes a limited liability for the damage caused by the tortious acts or
conduct of its special agent.
Under the aforequoted paragrah 6 of Art. 2180, the State has voluntarily assumed liability for acts done
through special agents. The State's agent, if a public official, must not only be specially commissioned to
do a particular task but that such task must be foreign to said official's usual governmental functions. If
the State's agent is not a public official, and is commissioned to perform non-governmental functions,
then the State assumes the role of an ordinary employer and will be held liable as such for its agent's
tort. Where the government commissions a private individual for a special governmental task, it is acting
through a special agent within the meaning of the provision. (Torts and Damages, Sangco, p. 347, 1984
Ed.)
Certain functions and activities, which can be performed only by the government, are more or less
generally agreed to be "governmental" in character, and so the State is immune from tort liability. On
the other hand, a service which might as well be provided by a private corporation, and particularly
when it collects revenues from it, the function is considered a "proprietary" one, as to which there may
be liability for the torts of agents within the scope of their employment.
The National Irrigation Administration is an agency of the government exercising proprietary functions,
by express provision of Rep. Act No. 3601. Section 1 of said Act provides:
 Section 1. Name and domicile.-A body corporate is hereby created which shall be
known as the National Irrigation Administration, hereinafter called the NIA for
short, which shall be organized immediately after the approval of this Act. It shall
have its principal seat of business in the City of Manila and shall have
representatives in all provinces for the proper conduct of its business.
Section 2 of said law spells out some of the NIA's proprietary functions. Thus-
Sec. 2. Powers and objectives.-The NIA shall have the following powers and
objectives:
(a) x x x x x x x x x x x x x x x x x x
It should be emphasized that the accident happened along the Maharlika National Road within the city
limits of San Jose City, an urban area. Considering the fact that the victim was thrown 50 meters away
from the point of impact, there is a strong indication that driver Garcia was driving at a high speed. This
is confirmed by the fact that the pick-up suffered substantial and heavy damage as above-described and
the fact that the NIA group was then "in a hurry to reach the campsite as early as possible", as shown by
their not stopping to find out what they bumped as would have been their normal and initial reaction.
Evidently, there was negligence in the supervision of the driver for the reason that they were travelling
at a high speed within the city limits and yet the supervisor of the group, Ely Salonga, failed to caution
and make the driver observe the proper and allowed speed limit within the city. Under the situation,
such negligence is further aggravated by their desire to reach their destination without even checking
whether or not the vehicle suffered damage from the object it bumped, thus showing imprudence and
reckelessness on the part of both the driver and the supervisor in the group.

(b) x x x x x x x x x x x x x x x x x x
(c) To collect from the users of each irrigation system constructed by it such fees
as may be necessary to finance the continuous operation of the system and
reimburse within a certain period not less than twenty-five years cost of
construction thereof; and
(d) To do all such other tthings and to transact all such business as are directly or
indirectly necessary, incidental or conducive to the attainment of the above
objectives.
Indubitably, the NIA is a government corporation with juridical personality and not a mere agency of the
government. Since it is a corporate body performing non-governmental functions, it now becomes liable
for the damage caused by the accident resulting from the tortious act of its driver-employee. In this
particular case, the NIA assumes the responsibility of an ordinary employer and as such, it becomes
answerable for damages.
Significantly, this Court has ruled that even if the employer can prove the diligence in the selection and
supervision (the latter aspect has not been established herein) of the employee, still if he ratifies the
wrongful acts, or take no step to avert further damage, the employer would still be liable. (Maxion vs.
Manila Railroad Co., 44 Phil. 597).
Thus, too, in the case of Vda. de Bonifacio vs. B.L.T. Bus Co. (L-26810, August 31, 1970, 34 SCRA 618), this
Court held that a driver should be especially watchful in anticipation of others who may be using the
highway, and his failure to keep a proper look out for reasons and objects in the line to be traversed
constitutes negligence.
Considering the foregoing, respondent NIA is hereby directed to pay herein petitioners-spouses the
amounts of P12,000.00 for the death of Francisco Fontanilla; P3,389.00 for hospitalization and burial
expenses of the aforenamed deceased; P30,000.00 as moral damages; P8,000.00 as exemplary damages
and attorney's fees of 20% of the total award.
SO ORDERED.

This assumption of liability, however, is predicated upon the existence of negligence on the part of
respondent NIA. The negligence referred to here is the negligence of supervision.

At this juncture, the matter of due diligence on the part of respondent NIA becomes a crucial issue in
determining its liability since it has been established that respondent is a government agency performing
proprietary functions and as such, it assumes the posture of an ordinary employer which, under Par. 5 of
Art. 2180, is responsible for the damages caused by its employees provided that it has failed to observe
or exercise due diligence in the selection and supervision of the driver.

It will be noted from the assailed decision of the trial court that "as a result of the impact, Francisco
Fontanilla wasthrown to a distance 50 meters away from the point of impact while Restituto Deligo was
thrown a little bit further away. The impact took place almost at the edge of the cemented portion of the
road." (Emphasis supplied,) [page 26, Rollo]

The lower court further declared that "a speeding vehicle coming in contact with a person causes force
and impact upon the vehicle that anyone in the vehicle cannot fail to notice. As a matter of fact, the
impact was so strong as shown by the fact that the vehicle suffered dents on the right side of the radiator
guard, the hood, the fender and a crack on the radiator as shown by the investigation report (Exhibit "E").
(Emphasis supplied) [page 29, Rollo]
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-30671 November 28, 1973
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
HON. GUILLERMO P. VILLASOR, as Judge of the Court of First Instance of Cebu, Branch I, THE
PROVINCIAL SHERIFF OF RIZAL, THE SHERIFF OF QUEZON CITY, and THE SHERIFF OF THE CITY OF
MANILA, THE CLERK OF COURT, Court of First Instance of Cebu, P. J. KIENER CO., LTD., GAVINO
UNCHUAN, AND INTERNATIONAL CONSTRUCTION CORPORATION, respondents.
Office of the Solicitor General Felix V. Makasiar and Solicitor Bernardo P. Pardo for petitioner.
Andres T. Velarde and Marcelo B. Fernan for respondents.
FERNANDO, J.:
The Republic of the Philippines in this certiorari and prohibition proceeding challenges the validity of an
order issued by respondent Judge Guillermo P. Villasor, then of the Court of First Instance of Cebu,
Branch I, 1 declaring a decision final and executory and of an alias writ of execution directed against the
funds of the Armed Forces of the Philippines subsequently issued in pursuance thereof, the alleged
ground being excess of jurisdiction, or at the very least, grave abuse of discretion. As thus simply and
tersely put, with the facts being undisputed and the principle of law that calls for application
indisputable, the outcome is predictable. The Republic of the Philippines is entitled to the writs prayed
for. Respondent Judge ought not to have acted thus. The order thus impugned and the alias writ of
execution must be nullified.
In the petition filed by the Republic of the Philippines on July 7, 1969, a summary of facts was set forth
thus: "7. On July 3, 1961, a decision was rendered in Special Proceedings No. 2156-R in favor of
respondents P. J. Kiener Co., Ltd., Gavino Unchuan, and International Construction Corporation, and
against the petitioner herein, confirming the arbitration award in the amount of P1,712,396.40, subject
of Special Proceedings. 8. On June 24, 1969, respondent Honorable Guillermo P. Villasor, issued an Order
declaring the aforestated decision of July 3, 1961 final and executory, directing the Sheriffs of Rizal
Province, Quezon City [as well as] Manila to execute the said decision. 9. Pursuant to the said Order
dated June 24, 1969, the corresponding Alias Writ of Execution [was issued] dated June 26, 1969, .... 10.
On the strength of the afore-mentioned Alias Writ of Execution dated June 26, 1969, the Provincial
Sheriff of Rizal (respondent herein) served notices of garnishment dated June 28, 1969 with several
Banks, specially on the "monies due the Armed Forces of the Philippines in the form of deposits
sufficient to cover the amount mentioned in the said Writ of Execution"; the Philippine Veterans Bank
received the same notice of garnishment on June 30, 1969 .... 11. The funds of the Armed Forces of the
Philippines on deposit with the Banks, particularly, with the Philippine Veterans Bank and the Philippine
National Bank [or] their branches are public funds duly appropriated and allocated for the payment of
pensions of retirees, pay and allowances of military and civilian personnel and for maintenance and
operations of the Armed Forces of the Philippines, as per Certification dated July 3, 1969 by the AFP
Controller,..." 2. The paragraph immediately succeeding in such petition then alleged: "12. Respondent
Judge, Honorable Guillermo P. Villasor, acted in excess of jurisdiction [or] with grave abuse of discretion
amounting to lack of jurisdiction in granting the issuance of an alias writ of execution against the
properties of the Armed Forces of the Philippines, hence, the Alias Writ of Execution and notices of
garnishment issued pursuant thereto are null and void." 3 In the answer filed by respondents, through
counsel Andres T. Velarde and Marcelo B. Fernan, the facts set forth were admitted with the only
qualification being that the total award was in the amount of P2,372,331.40. 4
The Republic of the Philippines, as mentioned at the outset, did right in filing this certiorari and
prohibition proceeding. What was done by respondent Judge is not in conformity with the dictates of the
Constitution. .
It is a fundamental postulate of constitutionalism flowing from the juristic concept of sovereignty that
the state as well as its government is immune from suit unless it gives its consent. It is readily
understandable why it must be so. In the classic formulation of Holmes: "A sovereign is exempt from
suit, not because of any formal conception or obsolete theory, but on the logical and practical ground
that there can be no legal right as against the authority that makes the law on which the right
depends." 5 Sociological jurisprudence supplies an answer not dissimilar. So it was indicated in a recent
decision, Providence Washington Insurance Co. v. Republic of the Philippines, 6 with its affirmation that "a
continued adherence to the doctrine of non-suability is not to be deplored for as against the
inconvenience that may be caused private parties, the loss of governmental efficiency and the obstacle
to the performance of its multifarious functions are far greater if such a fundamental principle were
abandoned and the availability of judicial remedy were not thus restricted. With the well known
propensity on the part of our people to go to court, at the least provocation, the loss of time and energy
required to defend against law suits, in the absence of such a basic principle that constitutes such an
effective obstacle, could very well be imagined." 7
This fundamental postulate underlying the 1935 Constitution is now made explicit in the revised charter.
It is therein expressly provided: "The State may not be sued without its consent." 8 A corollary, both
dictated by logic and sound sense from a basic concept is that public funds cannot be the object of a
garnishment proceeding even if the consent to be sued had been previously granted and the state
liability adjudged. Thus in the recent case of Commissioner of Public Highways v. San Diego, 9 such a well-
settled doctrine was restated in the opinion of Justice Teehankee: "The universal rule that where the
State gives its consent to be sued by private parties either by general or special law, it may limit
claimant's action 'only up to the completion of proceedings anterior to the stage of execution' and that
the power of the Courts ends when the judgment is rendered, since government funds and properties
may not be seized under writs of execution or garnishment to satisfy such judgments, is based on
obvious considerations of public policy. Disbursements of public funds must be covered by the
corresponding appropriation as required by law. The functions and public services rendered by the State
cannot be allowed to be paralyzed or disrupted by the diversion of public funds from their legitimate and
specific objects, as appropriated by law." 10 Such a principle applies even to an attempted garnishment of
a salary that had accrued in favor of an employee. Director of Commerce and Industry v.
Concepcion, 11 speaks to that effect. Justice Malcolm as ponente left no doubt on that score. Thus: "A
rule which has never been seriously questioned, is that money in the hands of public officers, although it
may be due government employees, is not liable to the creditors of these employees in the process of
garnishment. One reason is, that the State, by virtue of its sovereignty, may not be sued in its own courts
except by express authorization by the Legislature, and to subject its officers to garnishment would be to
permit indirectly what is prohibited directly. Another reason is that moneys sought to be garnished, as
long as they remain in the hands of the disbursing officer of the Government, belong to the latter,
although the defendant in garnishment may be entitled to a specific portion thereof. And still another
reason which covers both of the foregoing is that every consideration of public policy forbids it." 12
In the light of the above, it is made abundantly clear why the Republic of the Philippines could rightfully
allege a legitimate grievance.

WHEREFORE, the writs of certiorari and prohibition are granted, nullifying and setting aside both the
order of June 24, 1969 declaring executory the decision of July 3, 1961 as well as the alias writ of
execution issued thereunder. The preliminary injunction issued by this Court on July 12, 1969 is hereby
made permanent.
Republic of the Philippines occupation of the premises from 1970 up to and including 1975, plus interest
SUPREME COURT thereon at the legal rate from January 1970 until fully paid;
Manila
4. ordering the restoration of ownership and possession over the five lots in
FIRST DIVISION question in favor of the plaintiffs in the same proportion aforementioned;

G.R. No. L-61744 June 25, 1984 5. ordering the defendant to pay the plaintiffs the sum of P3,000.00 for attomey's
fees; and to pay the cost of suit.
MUNICIPALITY OF SAN MIGUEL, BULACAN, petitioner,
vs. The counterclaim of the defendant is hereby ordered dismissed for lack of
HONORABLE OSCAR C. FERNANDEZ, in his capacity as the Presiding Judge, Branch IV, Baliuag, Bulacan, evidence presented to substantiate the same.
The PROVINCIAL SHERIFF of Bulacan, MARGARITA D. VDA. DE IMPERIO, ADORACION IMPERIO,
RODOLFO IMPERIO, CONRADO IMPERIO, ERNESTO IMPERIO, ALFREDO IMPERIO, CARLOS IMPERIO, JR.,
SO ORDERED. (pp. 11-12, Rollo)
JUAN IMPERIO and SPOUSES MARCELO PINEDA and LUCILA PONGCO, respondents.

The foregoing judgment became final when herein petitioner's appeal was dismissed due to its failure to
Pascual C. Liatchko for petitioner.
file the record on appeal on time. The dismissal was affirmed by the then Court of Appeals in CA-G.R. No.
SP-12118 and by this Court in G.R. No. 59938. Thereafter, herein private respondents moved for issuance
The Solicitor General and Marcelo Pineda for respondents. of a writ of execution for the satisfaction of the judgment. Respondent judge, on July 27, 1982, issued an
order, to wit:

Considering that an entry of judgment had already been made on June 14, 1982 in
G. R. No. L-59938 and;
RELOVA, J.:

Considering further that there is no opposition to plaintiffs' motion for execution

In Civil Case No. 604-B, entitled "Margarita D. Vda. de Imperio, et al. vs. Municipal Government of San
dated July 23, 1983;
Miguel, Bulacan, et al.", the then Court of First Instance of Bulacan, on April 28, 1978, rendered
judgment holding herein petitioner municipality liable to private respondents, as follows:
Let a writ of execution be so issued, as prayed for in the aforestated motion. (p.
10, Rollo)
WHEREFORE, premises considered, judgment is hereby rendered in favor of the
plaintiffs and against the defendant Municipal Government of San Miguel Bulacan,
represented by Mayor Mar Marcelo G. Aure and its Municipal Treasurer: Petitioner, on July 30, 1982, filed a Motion to Quash the writ of execution on the ground that the
municipality's property or funds are all public funds exempt from execution. The said motion to quash
was, however, denied by the respondent judge in an order dated August 23, 1982 and the alias writ of
1. ordering the partial revocation of the Deed of Donation signed by the deceased
execution stands in full force and effect.
Carlos Imperio in favor of the Municipality of San Miguel Bulacan, dated October
27, 1947 insofar as Lots Nos. 1, 2, 3, 4 and 5, Block 11 of Subdivision Plan Psd-
20831 are concerned, with an aggregate total area of 4,646 square meters, which On September 13, 1982, respondent judge issued an order which in part, states:
lots are among those covered and described under TCT No. T-1831 of the Register
of Deeds of Bulacan in the name of the Municipal Government of San Miguel
It is clear and evident from the foregoing that defendant has more than enough
Bulacan,
funds to meet its judgment obligation. Municipal Treasurer Miguel C, Roura of San
Miguel, Bulacan and Provincial Treasurer of Bulacan Agustin O. Talavera are
2. ordering the defendant to execute the corresponding Deed of Reconveyance therefor hereby ordered to comply with the money judgment rendered by Judge
over the aforementioned five lots in favor of the plaintiffs in the proportion of the Agustin C. Bagasao against said municipality. In like manner, the municipal
undivided one-half () share in the name of plaintiffs Margarita D. Vda. de authorities of San Miguel, Bulacan are likewise ordered to desist from plaintiffs'
Imperio, Adoracion, Rodolfo, Conrado, Ernesto, Alfredo, Carlos, Jr. and Juan, all legal possession of the property already returned to plaintiffs by virtue of the alias
surnamed Imperio, and the remaining undivided one-half () share in favor of writ of execution.
plaintiffs uses Marcelo E. Pineda and Lucila Pongco;
Finally, defendants are hereby given an inextendible period of ten (10) days from
3. ordering the defendant municipality to pay to the plaintiffs in the proportion receipt of a copy of this order by the Office of the Provincial Fiscal of Bulacan
mentioned in the immediately preceding paragraph the sum of P64,440.00 within which to submit their written compliance, (p. 24, Rollo)
corresponding to the rentals it has collected from the occupants for their use and
When the treasurers (provincial and municipal) failed to comply with the order of September 13, 1982, (d) By delivering to the judgment-debtor the excess, if any, unless otherwise,
respondent judge issued an order for their arrest and that they will be release only upon compliance directed by judgment or order of the court.
thereof.
The foregoing has not been followed in the case at bar.
Hence, the present petition on the issue whether the funds of the Municipality of San Miguel, Bulacan, in
the hands of the provincial and municipal treasurers of Bulacan and San Miguel, respectively, are public
ACCORDINGLY, the petition is granted and the order of respondent judge, dated July 27, 1982, granting
funds which are exempt from execution for the satisfaction of the money judgment in Civil Case No. 604-
issuance of a writ of execution; the alias writ of execution, dated July 27, 1982; and the order of
B.
respondent judge, dated September 13, 1982, directing the Provincial Treasurer of Bulacan and the
Municipal Treasurer of San Miguel, Bulacan to comply with the money judgments, are SET ASIDE; and
Well settled is the rule that public funds are not subject to levy and execution. The reason for this was respondents are hereby enjoined from implementing the writ of execution.
explained in the case of Municipality of Paoay vs. Manaois, 86 Phil. 629 "that they are held in trust for
the people, intended and used for the accomplishment of the purposes for which municipal corporations
SO ORDERED.
are created, and that to subject said properties and public funds to execution would materially impede,
even defeat and in some instances destroy said purpose." And, in Tantoco vs. Municipal Council of Iloilo,
49 Phil. 52, it was held that "it is the settled doctrine of the law that not only the public property but also Teehankee (Chairm
the taxes and public revenues of such corporations Cannot be seized under execution against them,
either in the treasury or when in transit to it. Judgments rendered for taxes, and the proceeds of such
judgments in the hands of officers of the law, are not subject to execution unless so declared by statute."
Thus, it is clear that all the funds of petitioner municipality in the possession of the Municipal Treasurer
of San Miguel, as well as those in the possession of the Provincial Treasurer of Bulacan, are also public
funds and as such they are exempt from execution.

Besides, Presidential Decree No. 477, known as "The Decree on Local Fiscal Administration", Section 2
(a), provides:

SEC. 2. Fundamental Principles. Local government financial affairs, transactions,

and operations shall be governed by the fundamental principles set forth
hereunder:

(a) No money shall be paid out of the treasury except in pursuance of a lawful
appropriation or other specific statutory authority.

xxx xxx xxx

Otherwise stated, there must be a corresponding appropriation in the form of an ordinance duly passed
by the Sangguniang Bayan before any money of the municipality may be paid out. In the case at bar, it
has not been shown that the Sangguniang Bayan has passed an ordinance to this effect.

Furthermore, Section 15, Rule 39 of the New Rules of Court, outlines the procedure for the enforcement
of money judgment:

(a) By levying on all the property of the debtor, whether real or personal, not
otherwise exempt from execution, or only on such part of the property as is
sufficient to satisfy the judgment and accruing cost, if he has more than sufficient
property for the purpose;

(b) By selling the property levied upon;

(c) By paying the judgment-creditor so much of the proceeds as will satisfy the
judgment and accruing costs; and
Republic of the Philippines How many of the present Senators can say without remorse in their conscience and with
SUPREME COURT serenity of mind, that they do not owe their victory to electoral robbery? How may?
Manila
The author or authors of the robbery of the records from the said iron safe of the Senate
EN BANC have, perhaps, but followed the example of certain Senators who secured their election
through fraud and robbery.
G.R. No. L-18463 October 4, 1922
The Philippine Senate, in its session of September 9, 1920, adopted a resolution authorizing its
committee on elections and privileges to report as to the action which should be taken with reference to
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
the article published inLa Nacion. On September 15, 1920, the Senate adopted a resolution authorizing
vs.
the President of the Senate to indorse to the Attorney-General, for his study and corresponding action,
GREGORIO PERFECTOR, defendant-appellant.
all the papers referring to the case of the newspaper La Nacion and its editor, Mr. Gregorio Perfecto. As
a result, an information was filed in the municipal court of the City of Manila by an assistant city fiscal, in
Alfonso E. Mendoza and the appellant in behalf of the latter. which the editorial in question was set out and in which it was alleged that the same constituted a
Attorney-General Villa-Real for appellee. violation of article 256 of the Penal Code. The defendant Gregorio Perfecto was found guilty in the
municipal court and again in the Court of First Instance of Manila.

MALCOLM, J.:
The important question is here squarely presented of whether article 256 of the Spanish Penal Code,
punishing "Any person who, by . . . writing, shall defame, abuse, or insult any Minister of the Crown or
other person in authority . . .," is still in force.
About August 20, 1920, the Secretary of the Philippine Senate, Fernando M. Guerrero, discovered that
certain documents which constituted the records of testimony given by witnesses in the investigation of
oil companies, had disappeared from his office. Shortly thereafter, the Philippine Senate, having been
called into special session by the Governor-General, the Secretary for the Senate informed that body of
the loss of the documents and of the steps taken by him to discover the guilty party. The day following
the convening of the Senate, September 7, 1920, the newspaper La Nacion, edited by Mr. Gregorio
Perfecto, published an article reading as follows:
Half a month has elapsed since the discovery, for the first time, of the scandalous robbery of
records which were kept and preserved in the iron safe of the Senate, yet up to this time
there is not the slightest indication that the author or authors of the crime will ever be
discovered.
During the course of the trial in the Court of First Instance, after the prosecution had rested, the defense
moved for the dismissal of the case. On the subject of whether or not article 256 of the Penal Code,
under which the information was presented, is in force, the trial judge, the Honorable George R. Harvey,
said:
This antiquated provision was doubtless incorporated into the Penal Code of Spain for the
protection of the Ministers of the Crown and other representatives of the King against free
speech and action by Spanish subjects. A severe punishment was prescribed because it was
doubtless considered a much more serious offense to insult the King's representative than to
insult an ordinary individual. This provision, with almost all the other articles of that Code,
was extended to the Philippine Islands when under the dominion of Spain because the King's
subject in the Philippines might defame, abuse or insult the Ministers of the Crown or other
representatives of His Majesty. We now have no Ministers of the Crown or other persons in
authority in the Philippines representing the King of Spain, and said provision, with other
articles of the Penal Code, had apparently passed into "innocuous desuetude," but the
Supreme Corut of the Philippine Islands has, by a majority decision, held that said article 256
is the law of the land to-day. . . .
The Helbig case is a precedent which, by the rule of stare decisis, is binding upon this court
until otherwise determined by proper authority.

To find them, it would not, perhaps, be necessary to go out of the Sente itself, and the
persons in charge of the investigation of the case would not have to display great skill in order
to succeed in their undertaking, unless they should encounter the insuperable obstacle of
offical concealment.
In that case, every investigation to be made would be but a mere comedy and nothing more.
After all, the perpetration of the robbery, especially under the circumstances that have
surrounded it, does not surprise us at all.
The execution of the crime was but the natural effect of the environment of the place in
which it was committed.
In the decision rendered by the same judge, he concluded with the following language:
In the United States such publications are usually not punishable as criminal offense, and little
importance is attached to them, because they are generally the result of political controversy
and are usually regarded as more or less colored or exaggerated. Attacks of this character
upon a legislative body are not punishable, under the Libel Law. Although such publications
are reprehensible, yet this court feels some aversion to the application of the provision of law
under which this case was filed. Our Penal Code has come to us from the Spanish regime.
Article 256 of that Code prescribes punishment for persons who use insulting language about
Ministers of the Crown or other "authority." The King of Spain doubtless left the need of such
protection to his ministers and others in authority in the Philippines as well as in Spain.
Hence, the article referred to was made applicable here. Notwithstanding the change of
sovereignty, our Supreme Court, in a majority decision, has held that this provision is still in
force, and that one who made an insulting remark about the President of the United States
 was punishable under it. (U.S. vs. Helbig, supra.) If it applicable in that case, it would appear
to be applicable in this case. Hence, said article 256 must be enforced, without fear or favor,
until it shall be repealed or superseded by other legislation, or until the Supreme Court shall
otherwise determine.
In view of the foregoing considerations, the court finds the defendant guilty as charged in the
information and under article 256 of their Penal Code sentences him to suffer two months
and one day of arresto mayorand the accessory penalties prescribed by law, and to pay the
costs of both instances.
The fifteen errors assigned by the defendant and appellant, reenforced by an extensive brief, and
eloquent oral argument made in his own behalf and by his learned counsel, all reduce themselves to the
pertinent and decisive question which was announced in the beginning of this decision.
It will be noted in the first place that the trial judge considered himself bound to follow the rule
announced in the case of United States vs. Helbig (R. G. No. 14705, 1 not published). In that case, the
accused was charged with having said, "To hell with the President and his proclamations, or words to
that effect," in violation of article 256 of the Penal Code. He was found guilty in a judgment rendered by
the Court of First Instance of Manila and again on appeal to the Supreme Court, with the writer of the
instant decision dissenting on two principal grounds: (1) That the accused was deprived of the
constitutional right of cross-examination, and (2) that article 256 of the Spanish Penal Code is no longer
in force. Subsequently, on a motion of reconsideration, the court, being of the opinion that the Court of
First Instance had committed a prejudicial error in depriving the accused of his right to cross-examine a
principal witness, set aside the judgment affirming the judgment appealed from and ordered the return
of the record to the court of origin for the celebration of a new trial. Whether such a trial was actually
had, is not known, but at least, the record in the Helbig case has never again been elevated to this court.
There may perchance exist some doubt as to the authority of the decision in the Helbig case, in view of
the circumstances above described. This much, however, is certain: The facts of the Helbig case and the
case before us, which we may term the Perfecto case, are different, for in the first case there was an oral
defamation, while in the second there is a written defamation. Not only this, but a new point which,
under the facts, could not have been considered in the Helbig case, is, in the Perfecto case, urged upon
the court. And, finally, as is apparent to all, the appellate court is not restrained, as was the trial court, by
strict adherence to a former decision. We much prefer to resolve the question before us unhindered by
references to the Helbig decision.
This is one of those cases on which a variety of opinions all leading to the same result can be had. A
majority of the court are of the opinion that the Philippine Libel Law, Act No. 277, has had the effect of
repealing so much of article 256 of the Penal Code as relates to written defamation, abuse, or insult, and
that under the information and the facts, the defendant is neither guilty of a violation of article 256 of
the Penal Code, nor of the Libel Law. The view of the Chief Justice is that the accused should be
acquitted for the reason that the facts alleged in the information do not constitute a violation of article
156 of the Penal Code. Three members of the court believe that article 256 was abrogated completely by
the change from Spanish to American sovereignty over the Philippines and is inconsistent with
democratic principles of government.
Without prejudice to the right of any member of the court to explain his position, we will discuss the two
main points just mentioned.
1. Effect of the Philippine Libel Law, Act No. 277, on article 256 of the Spanish Penal Code.
The Libel Law, Act No. 277, was enacted by the Philippine Commission shortly after
organization of this legislative body. Section 1 defines libel as a "malicious defamation,
expressed either in writing, printing, or by signs or pictures, or the like, or public theatrical
exhibitions, tending to blacken the memory of one who is dead or to impeach the honesty,
virtue, or reputation, or publish the alleged or natural deffects of one who is alive, and
thereby expose him to public hatred, contempt or ridicule." Section 13 provides that "All laws
and parts of laws now in force, so far as the same may be in conflict herewith, are hereby
repealed. . . ."
That parts of laws in force in 1901 when the Libel Law took effect, were in conflict therewith, and that
the Libel Law abrogated certain portion of the Spanish Penal Code, cannot be gainsaid. Title X of Book II
of the Penal Code, covering the subjects of calumny and insults, must have been particularly affected by
the Libel Law. Indeed, in the early case of Pardo de Tavera vs. Garcia Valdez ([1902], 1. Phil., 468), the
Supreme Court spoke of the Libel Law as "reforming the preexisting Spanish law on the subject
of calumnia and injuria." Recently, specific attention was given to the effect of the Libel Law on the
provisions of the Penal Code, dealing with calumny and insults, and it was found that those provisions of
the Penal Code on the subject of calumny and insults in which the elements of writing an publicity
entered, were abrogated by the Libel Law. (People vs. Castro [1922], p. 842, ante.)
The Libel Law must have had the same result on other provisions of the Penal Code, as for instance
article 256.
The facts here are that the editor of a newspaper published an article, naturally in writing, which may
have had the tendency to impeach the honesty, virtue, or reputation of members of the Philippine
Senate, thereby possibly exposing them to public hatred, contempt, or ridicule, which is exactly libel, as
defined by the Libel Law. Sir J. F. Stephen is authority for the statement that a libel is indictable when
defaming a "body of persons definite and small enough for individual members to be recognized as such,
in or by means of anything capable of being a libel." (Digest of Criminal Law, art. 267.) But in the United
States, while it may be proper to prosecute criminally the author of a libel charging a legislator with
corruption, criticisms, no matter how severe, on a legislature, are within the range of the liberty of the
press, unless the intention and effect be seditious. (3 Wharton's Criminal Law, p. 2131.) With these facts
and legal principles in mind, recall that article 256 begins: Any person who, by . . . writing, shall defame,
abuse, or insult any Minister of the Crown or other person in authority," etc.
The Libel Law is a complete and comprehensive law on the subject of libel. The well-known rule of
statutory construction is, that where the later statute clearly covers the old subject-matter of antecedent
acts, and it plainly appears to have been the purpose of the legislature to give expression in it to the
whole law on the subject, previous laws are held to be repealed by necessary implication. (1 Lewis'
Sutherland Statutory Construction, p. 465.) For identical reasons, it is evident that Act No. 277 had the
effect so much of this article as punishes defamation, abuse, or insults by writing.
Act No. 292 of the Philippine Commission, the Treason and Sedition Law, may also have affected article
256, but as to this point, it is not necessary to make a pronouncement.
2. Effect of the change from Spanish to Amercian sevoreignty over the Philippine son article
256 of the Spanish Penal Code. Appellant's main proposition in the lower court and again
energetically pressed in the appellate court was that article 256 of the Spanish Penal Code is
not now in force because abrogated by the change from Spanish to American sovereignty
over the Philippines and because inconsistent with democratic principles of government. This
view was indirectly favored by the trial judge, and, as before stated, is the opinion of three
members of this court.
Article 256 is found in Chapter V of title III of Book II of the Spanish Penal Code. Title I of Book II punishes
the crimes of treason, crimes that endanger the peace or independence of the state, crimes against
international law, and the crime of piracy. Title II of the same book punishes the crimes of lese majeste,
crimes against the Cortesand its members and against the council of ministers, crimes against the form
of government, and crimes committed on the occasion of the exercise of rights guaranteed by the
fundamental laws of the state, including crime against religion and worship. Title III of the same Book, in
which article 256 is found, punishes the crimes of rebellion, sedition, assaults upon persons in authority,
and their agents, and contempts, insults, injurias, and threats against persons in authority, and
insults, injurias, and threats against their agents and other public officers, the last being the title to
Chapter V. The first two articles in Chapter V define and punish the offense of contempt committed by
any one who shall be word or deed defame, abuse, insult, or threathen a minister of the crown, or any
person in authority. The with an article condemning challenges to fight duels intervening, comes article
256, now being weighed in the balance. It reads as follows: "Any person who, by word, deed, or writing,
shall defame, abuse, or insult any Minister of the Crown or other person in authority, while engaged in
the performance of official duties, or by reason of such performance, provided that the offensive
minister or person, or the offensive writing be not addressed to him, shall suffer the penalty of arresto
mayor," that is, the defamation, abuse, or insult of any Minister of the Crown of the Monarchy of
Spain (for there could not be a Minister of the Crown in the United States of America), or other person in
authority in the Monarchy of Spain.
It cannot admit of doubt that all those provisions of the Spanish Penal Code having to do with such
subjects as treason, lese majeste, religion and worship, rebellion, sedition, and contempts of ministers of
the crown, are not longer in force. Our present task, therefore, is a determination of whether article 256
has met the same fate, or, more specifically stated, whether it is in the nature of a municipal law or
political law, and is consistent with the Constitution and laws of the United States and the characteristics
and institutions of the American Government.
It is a general principle of the public law that on acquisition of territory the previous political relations of
the ceded region are totally abrogated. "Political" is here used to denominate the laws regulating the
relations sustained by the inhabitants to the sovereign. (American Insurance Co. vs. Canter [1828], 1 Pet.,
511; Chicago, Rock Island and Pacific Railway Co. vs. McGlinn [1885], 114 U.S., 542; Roa vs. Collector of
Customs [1912], 23 Phil., 315.) Mr. Justice Field of the United States Supreme Court stated the obvious
when in the course of his opinion in the case of Chicago, Rock Island and Pacific Railway Co. vs. McGlinn,
supra, he said: "As a matter of course, all laws, ordinances and regulations in conflict with the political
character, institutions and Constitution of the new government are at once displaced. Thus, upon a
cession of political jurisdiction and legislative power and the latter is involved in the former to the
United States, the laws of the country in support of an established religion or abridging the freedom of
the press, or authorizing cruel and unusual punishments, and he like, would at once cease to be of
obligatory force without any declaration to that effect." To quote again from the United States Supreme
Court: "It cannot be admitted that the King of Spain could, by treaty or otherwise, impart to the United
States any of his royal prerogatives; and much less can it be admitted that they have capacity to receive
or power to exercise them. Every nation acquiring territory, by treaty or otherwise, must hold it subject
to the Constitution and laws of its own government, and not according to those of the government
ceding it." (Pollard vs. Hagan [1845], 3 Hos., 210.)
On American occupation of the Philippines, by instructions of the President to the Military Commander
dated May 28, 1898, and by proclamation of the latter, the municipal laws of the conquered territory
affecting private rights of person and property and providing for the punishment of crime were
nominally continued in force in so far as they were compatible with the new order of things. But
President McKinley, in his instructions to General Merritt, was careful to say: "The first effect of the
military occupation of the enemy's territory is the severance of the former political relation of the
inhabitants and the establishment of a new political power." From that day to this, the ordinarily it has
been taken for granted that the provisions under consideration were still effective. To paraphrase the
language of the United States Supreme Court in Weems vs. United States ([1910], 217 U. S., 349), there
was not and could not be, except as precise questions were presented, a careful consideration of the
codal provisions and a determination of the extent to which they accorded with or were repugnant to
the "'great principles of liberty and law' which had been 'made the basis of our governmental system.' "
But when the question has been squarely raised, the appellate court has been forced on occasion to hold
certain portions of the Spanish codes repugnant t democratic institutions and American constitutional
principles. (U.S. vs. Sweet [1901], 1 Phil., 18; U.S. vs. Balcorta [1913], 25 Phil., 273; U.S. vs. Balcorta
[1913], 25 Phil., 533; Weems vs. U.S., supra.)
The nature of the government which has been set up in the Philippines under American sovereignty was
outlined by President McKinley in that Magna Charta of Philippine liberty, his instructions to the
Commission, of April 7, 1900. In part, the President said:
In all the forms of government and administrative provisions which they are authorized to
prescribe, the Commission should bear in mind that he government which they are
establishing is designed not for our satisfaction or for the expression of our theoretical views,
but for the happiness, peace, and prosperity of the people of the Philippine Islands, and the
measures adopted should be made to conform to their customs, their habits, and even their
prejudices, to the fullest extent consistent with the accomplishment of the indispensable
requisites of just and effective government. At the same time the Commission should bear in
mind, and the people of the Islands should be made plainly to understand, that there are
certain great principles of government which have been made the basis of our governmental
system, which we deem essential to the rule of law and the maintenance of individual
freedom, and of which they have, unfortunately, been denied the experience possessed by us;
that there are also certain practical rules of government which we have found to be essential
to the preservation of these great principles of liberty and law, and that these principles and
these rules of government must be established and maintained in their islands for the sake of
their liberty and happiness, however much they may conflict with the customs or laws of
procedure with which they are familiar. It is evident that the most enligthened thought of the
Philippine Islands fully appreciates the importance of these principles and rules, and they will
inevitably within a short time command universal assent.
The courts have naturally taken the same view. Mr. Justice Elliott, speaking for our Supreme Court, in the
case of United States vs. Bull ([1910], 15 Phil., 7), said: "The President and Congress framed the
government on the model with which American are familiar, and which has proven best adapted for the
advancement of the public interests and the protection of individual rights and privileges."
Therefore, it has come with somewhat of a shock to hear the statement made that the happiness, peace,
and prosperity of the people of the Philippine Islands and their customs, habits, and prejudices, to follow
the language of President McKinley, demand obeisance to authority, and royal protection for that
authority.
According to our view, article 256 of the Spanish Penal Code was enacted by the Government of Spain to
protect Spanish officials who were the representatives of the King. With the change of sovereignty, a
new government, and a new theory of government, as set up in the Philippines. It was in no sense a
continuation of the old, although merely for convenience certain of the existing institutions and laws
were continued. The demands which the new government made, and makes, on the individual citizen
are likewise different. No longer is there a Minister of the Crown or a person in authority of such exalted
position that the citizen must speak of him only with bated breath. "In the eye of our Constitution and
laws, every man is a sovereign, a ruler and a freeman, and has equal rights with every other man. We
have no rank or station, except that of respectability and intelligence as opposed to indecency and
ignorance, and the door to this rank stands open to every man to freely enter and abide therein, if he is
qualified, and whether he is qualified or not depends upon the life and character and attainments and
conduct of each person for himself. Every man may lawfully do what he will, so long as it is not malum in
se ormalum prohibitum or does not infringe upon the qually sacred rights of others." (State vs. Shepherd
[1903], 177 Mo., 205; 99 A. S. R., 624.)

It is true that in England, from which so many of the laws and institutions of the United States are
derived, there were once statutes of scandalum magnatum, under which words which would not be
actionable if spoken of an ordinary subject were made actionable if spoken of a peer of the realm or of
any of the great officers of the Crown, without proof of any special damage. The Crown of England,
unfortunately, took a view less tolerant that that of other sovereigns, as for instance, the Emperors
Augustus, Caesar, and Tiberius. These English statutes have, however, long since, become obsolete,
while in the United States, the offense of scandalum magnatum is not known. In the early days of the
American Republic, a sedition law was enacted, making it an offense to libel the Government, the
Congress, or the President of the United States, but the law met with so much popular disapproval, that
it was soon repealed. "In this country no distinction as to persons is recognized, and in practice a person
holding a high office is regarded as a target at whom any person may let fly his poisonous words. High
official position, instead of affording immunity from slanderous and libelous charges, seems rather to be
regarded as making his character free plunder for any one who desires to create a senation by attacking
it." (Newell, Slander and Libel, 3d ed., p. 245; Sillars vs. Collier [1890], 151 Mass., 50; 6 L.R.A., 680.)

Article 256 of the Penal Code is contrary to the genius and fundamental principles of the American
character and system of government. The gulf which separates this article from the spirit which inspires
all penal legislation of American origin, is as wide as that which separates a monarchy from a democratic
Republic like that of the United States. This article was crowded out by implication as soon as the United
States established its authority in the Philippine Islands. Penalties out of all proportion to the gravity of
the offense, grounded in a distorted monarchical conception of the nature of political authority, as
opposed to the American conception of the protection of the interests of the public, have been
obliterated by the present system of government in the Islands. 1awph!l.net

From an entirely different point of view, it must be noted that this article punishes contempts against
executive officials, although its terms are broad enough to cover the entire official class. Punishment for
contempt of non-judicial officers has no place in a government based upon American principles. Our
official class is not, as in monarchies, an agent of some authority greater than the people but it is an
agent and servant of the people themselves. These officials are only entitled to respect and obedience
when they are acting within the scope of their authority and jurisdiction. The American system of
government is calculated to enforce respect and obedience where such respect and obedience is due,
but never does it place around the individual who happens to occupy an official position by mandate of
the people any official halo, which calls for drastic punishment for contemptuous remarks.

The crime of lese majeste disappeared in the Philippines with the ratification of the Treaty of Paris.
Ministers of the Crown have no place under the American flag.

To summarize, the result is, that all the members of the court are of the opinion, although for different
reasons, that the judgment should be reversed and the defendant and appellant acquitted, with costs de
officio. So ordered.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. 133-J May 31, 1982
BERNARDITA R. MACARIOLA, complainant,
vs.
HONORABLE ELIAS B. ASUNCION, Judge of the Court of First Instance of Leyte, respondent.
MAKASIAR, J:
In a verified complaint dated August 6, 1968 Bernardita R. Macariola charged respondent Judge Elias B.
Asuncion of the Court of First Instance of Leyte, now Associate Justice of the Court of Appeals, with "acts
unbecoming a judge."
The factual setting of the case is stated in the report dated May 27, 1971 of then Associate Justice Cecilia
Muoz Palma of the Court of Appeals now retired Associate Justice of the Supreme Court, to whom this
case was referred on October 28, 1968 for investigation, thus:
Civil Case No. 3010 of the Court of First Instance of Leyte was a complaint for
partition filed by Sinforosa R. Bales, Luz R. Bakunawa, Anacorita Reyes, Ruperto
Reyes, Adela Reyes, and Priscilla Reyes, plaintiffs, against Bernardita R. Macariola,
defendant, concerning the properties left by the deceased Francisco Reyes, the
common father of the plaintiff and defendant.
In her defenses to the complaint for partition, Mrs. Macariola alleged among other
things that; a) plaintiff Sinforosa R. Bales was not a daughter of the deceased
Francisco Reyes; b) the only legal heirs of the deceased were defendant Macariola,
she being the only offspring of the first marriage of Francisco Reyes with Felisa
Espiras, and the remaining plaintiffs who were the children of the deceased by his
second marriage with Irene Ondez; c) the properties left by the deceased were all
the conjugal properties of the latter and his first wife, Felisa Espiras, and no
properties were acquired by the deceased during his second marriage; d) if there
was any partition to be made, those conjugal properties should first be partitioned
into two parts, and one part is to be adjudicated solely to defendant it being the
share of the latter's deceased mother, Felisa Espiras, and the other half which is
the share of the deceased Francisco Reyes was to be divided equally among his
children by his two marriages.
On June 8, 1963, a decision was rendered by respondent Judge Asuncion in Civil
Case 3010, the dispositive portion of which reads:
IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court,
upon a preponderance of evidence, finds and so holds, and
hereby renders judgment (1) Declaring the plaintiffs Luz R.
Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes and
Priscilla Reyes as the only children legitimated by the
subsequent marriage of Francisco Reyes Diaz to Irene
Ondez; (2) Declaring the plaintiff Sinforosa R. Bales to have
been an illegitimate child of Francisco Reyes Diaz; (3)
Declaring Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581,
4506 and 1/4 of Lot 1145 as belonging to the conjugal
partnership of the spouses Francisco Reyes Diaz and Felisa
Espiras; (4) Declaring Lot No. 2304 and 1/4 of Lot No. 3416
as belonging to the spouses Francisco Reyes Diaz and Irene
Ondez in common partnership; (5) Declaring that 1/2 of Lot
No. 1184 as belonging exclusively to the deceased Francisco
Reyes Diaz; (6) Declaring the defendant Bernardita R.
Macariola, being the only legal and forced heir of her
mother Felisa Espiras, as the exclusive owner of one-half of
each of Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506;
and the remaining one-half (1/2) of each of said Lots Nos.
4474, 4475, 4892, 5265, 4803, 4581, 4506 and one-half (1/2)
of one-fourth (1/4) of Lot No. 1154 as belonging to the
estate of Francisco Reyes Diaz; (7) Declaring Irene Ondez to
be the exclusive owner of one-half (1/2) of Lot No. 2304 and
one-half (1/2) of one-fourth (1/4) of Lot No. 3416; the
remaining one-half (1/2) of Lot 2304 and the remaining one-
half (1/2) of one-fourth (1/4) of Lot No. 3416 as belonging to
the estate of Francisco Reyes Diaz; (8) Directing the division
or partition of the estate of Francisco Reyes Diaz in such a
manner as to give or grant to Irene Ondez, as surviving
widow of Francisco Reyes Diaz, a hereditary share of. one-
twelfth (1/12) of the whole estate of Francisco Reyes Diaz
(Art. 996 in relation to Art. 892, par 2, New Civil Code), and
the remaining portion of the estate to be divided among the
plaintiffs Sinforosa R. Bales, Luz R. Bakunawa, Anacorita
Reyes, Ruperto Reyes, Adela Reyes, Priscilla Reyes and
defendant Bernardita R. Macariola, in such a way that the
extent of the total share of plaintiff Sinforosa R. Bales in the
hereditary estate shall not exceed the equivalent of two-
fifth (2/5) of the total share of any or each of the other
plaintiffs and the defendant (Art. 983, New Civil Code), each
of the latter to receive equal shares from the hereditary
estate, (Ramirez vs. Bautista, 14 Phil. 528; Diancin vs. Bishop
of Jaro, O.G. [3rd Ed.] p. 33); (9) Directing the parties, within
thirty days after this judgment shall have become final to
submit to this court, for approval a project of partition of the
hereditary estate in the proportion above indicated, and in
such manner as the parties may, by agreement, deemed
convenient and equitable to them taking into consideration
the location, kind, quality, nature and value of the
properties involved; (10) Directing the plaintiff Sinforosa R.
Bales and defendant Bernardita R. Macariola to pay the
costs of this suit, in the proportion of one-third (1/3) by the
first named and two-thirds (2/3) by the second named; and
(I 1) Dismissing all other claims of the parties [pp 27-29 of
Exh. C].
The decision in civil case 3010 became final for lack of an appeal, and on October
16, 1963, a project of partition was submitted to Judge Asuncion which is marked
Exh. A. Notwithstanding the fact that the project of partition was not signed by the
parties themselves but only by the respective counsel of plaintiffs and defendant,
Judge Asuncion approved it in his Order dated October 23, 1963, which for
convenience is quoted hereunder in full:
The parties, through their respective counsels, presented to
this Court for approval the following project of partition:
COMES NOW, the plaintiffs and the defendant in the above-
entitled case, to this Honorable Court respectfully submit
the following Project of Partition:
l. The whole of Lots Nos. 1154, 2304 and 4506 shall belong
exclusively to Bernardita Reyes Macariola;
2. A portion of Lot No. 3416 consisting of 2,373.49 square
meters along the eastern part of the lot shall be awarded
likewise to Bernardita R. Macariola;
3. Lots Nos. 4803, 4892 and 5265 shall be awarded to
Sinforosa Reyes Bales;
4. A portion of Lot No. 3416 consisting of 1,834.55 square
meters along the western part of the lot shall likewise be
awarded to Sinforosa Reyes-Bales;
5. Lots Nos. 4474 and 4475 shall be divided equally among
Luz Reyes Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela
Reyes and Priscilla Reyes in equal shares;
6. Lot No. 1184 and the remaining portion of Lot No. 3416
after taking the portions awarded under item (2) and (4)
above shall be awarded to Luz Reyes Bakunawa, Anacorita
Reyes, Ruperto Reyes, Adela Reyes and Priscilla Reyes in
equal shares, provided, however that the remaining portion
of Lot No. 3416 shall belong exclusively to Priscilla Reyes.
WHEREFORE, it is respectfully prayed that the Project of
Partition indicated above which is made in accordance with
the decision of the Honorable Court be approved.
Tacloban City, October 16, 1963.
(SGD) BONIFACIO RAMO Atty. for the Defendant Tacloban
City
(SGD) ZOTICO A. TOLETE Atty. for the Plaintiff Tacloban City
While the Court thought it more desirable for all the parties
to have signed this Project of Partition, nevertheless, upon
assurance of both counsels of the respective parties to this
Court that the Project of Partition, as above- quoted, had
been made after a conference and agreement of the
plaintiffs and the defendant approving the above Project of
Partition, and that both lawyers had represented to the
Court that they are given full authority to sign by themselves
the Project of Partition, the Court, therefore, finding the
above-quoted Project of Partition to be in accordance with
law, hereby approves the same. The parties, therefore, are
directed to execute such papers, documents or instrument
sufficient in form and substance for the vesting of the rights,
interests and participations which were adjudicated to the
respective parties, as outlined in the Project of Partition and
the delivery of the respective properties adjudicated to each
one in view of said Project of Partition, and to perform such
other acts as are legal and necessary to effectuate the said
Project of Partition.
SO ORDERED.
Given in Tacloban City, this 23rd day of October, 1963.
(SGD) ELIAS B. ASUNCION Judge
EXH. B.
The above Order of October 23, 1963, was amended on November 11, 1963, only
for the purpose of giving authority to the Register of Deeds of the Province of
Leyte to issue the corresponding transfer certificates of title to the respective
adjudicatees in conformity with the project of partition (see Exh. U).
One of the properties mentioned in the project of partition was Lot 1184 or rather
one-half thereof with an area of 15,162.5 sq. meters. This lot, which according to
the decision was the exclusive property of the deceased Francisco Reyes, was
adjudicated in said project of partition to the plaintiffs Luz, Anacorita Ruperto,
Adela, and Priscilla all surnamed Reyes in equal shares, and when the project of
partition was approved by the trial court the adjudicatees caused Lot 1184 to be
subdivided into five lots denominated as Lot 1184-A to 1184-E inclusive (Exh. V).
Lot 1184-D was conveyed to Enriqueta D. Anota, a stenographer in Judge
Asuncion's court (Exhs. F, F-1 and V-1), while Lot 1184-E which had an area of
2,172.5556 sq. meters was sold on July 31, 1964 to Dr. Arcadio Galapon (Exh. 2)
who was issued transfer certificate of title No. 2338 of the Register of Deeds of the
city of Tacloban (Exh. 12).
On March 6, 1965, Dr. Arcadio Galapon and his wife Sold a portion of Lot 1184-E
with an area of around 1,306 sq. meters to Judge Asuncion and his wife, Victoria S.
Asuncion (Exh. 11), which particular portion was declared by the latter for taxation
purposes (Exh. F).
 On August 31, 1966, spouses Asuncion and spouses Galapon conveyed their
respective shares and interest in Lot 1184-E to "The Traders Manufacturing and
Fishing Industries Inc." (Exit 15 & 16). At the time of said sale the stockholders of
the corporation were Dominador Arigpa Tan, Humilia Jalandoni Tan, Jaime Arigpa
Tan, Judge Asuncion, and the latter's wife, Victoria S. Asuncion, with Judge
Asuncion as the President and Mrs. Asuncion as the secretary (Exhs. E-4 to E-7).
The Articles of Incorporation of "The Traders Manufacturing and Fishing Industries,
Inc." which we shall henceforth refer to as "TRADERS" were registered with the
Securities and Exchange Commission only on January 9, 1967 (Exh. E) [pp. 378-385,
rec.].
Complainant Bernardita R. Macariola filed on August 9, 1968 the instant complaint dated August 6, 1968
alleging four causes of action, to wit: [1] that respondent Judge Asuncion violated Article 1491,
paragraph 5, of the New Civil Code in acquiring by purchase a portion of Lot No. 1184-E which was one of
those properties involved in Civil Case No. 3010 decided by him; [2] that he likewise violated Article 14,
paragraphs I and 5 of the Code of Commerce, Section 3, paragraph H, of R.A. 3019, otherwise known as
the Anti-Graft and Corrupt Practices Act, Section 12, Rule XVIII of the Civil Service Rules, and Canon 25 of
the Canons of Judicial Ethics, by associating himself with the Traders Manufacturing and Fishing
Industries, Inc., as a stockholder and a ranking officer while he was a judge of the Court of First Instance
of Leyte; [3] that respondent was guilty of coddling an impostor and acted in disregard of judicial
decorum by closely fraternizing with a certain Dominador Arigpa Tan who openly and publicly advertised
himself as a practising attorney when in truth and in fact his name does not appear in the Rolls of
Attorneys and is not a member of the Philippine Bar; and [4] that there was a culpable defiance of the
law and utter disregard for ethics by respondent Judge (pp. 1-7, rec.).
On November 2, 1970, Judge Jose D. Nepomuceno of the Court of First Instance of Leyte, who was
directed and authorized on June 2, 1969 by the then Secretary (now Minister) of Justice and now
Minister of National Defense Juan Ponce Enrile to hear and decide Civil Case No. 4234, rendered a
decision, the dispositive portion of which reads as follows:
A. IN THE CASE AGAINST JUDGE ELIAS B. ASUNCION
(1) declaring that only Branch IV of the Court of First Instance of Leyte has
jurisdiction to take cognizance of the issue of the legality and validity of the Project
of Partition [Exhibit "B"] and the two Orders [Exhibits "C" and "C- 3"] approving the
partition;
(2) dismissing the complaint against Judge Elias B. Asuncion;
(3) adjudging the plaintiff, Mrs. Bernardita R. Macariola to pay defendant Judge
Elias B. Asuncion,
(a) the sum of FOUR HUNDRED THOUSAND PESOS
[P400,000.00] for moral damages;
(b) the sum of TWO HUNDRED THOUSAND PESOS
[P200,000.001 for exemplary damages;

Respondent Judge Asuncion filed on September 24, 1968 his answer to which a reply was filed on (c) the sum of FIFTY THOUSAND PESOS [P50,000.00] for
October 16, 1968 by herein complainant. In Our resolution of October 28, 1968, We referred this case to nominal damages; and
then Justice Cecilia Muoz Palma of the Court of Appeals, for investigation, report and recommendation.
After hearing, the said Investigating Justice submitted her report dated May 27, 1971 recommending
that respondent Judge should be reprimanded or warned in connection with the first cause of action (d) he sum of TEN THOUSAND PESOS [PI0,000.00] for
alleged in the complaint, and for the second cause of action, respondent should be warned in case of a Attorney's Fees.
finding that he is prohibited under the law to engage in business. On the third and fourth causes of
action, Justice Palma recommended that respondent Judge be exonerated. B. IN THE CASE AGAINST THE DEFENDANT MARIQUITA
VILLASIN, FOR HERSELF AND FOR THE HEIRS OF THE
The records also reveal that on or about November 9 or 11, 1968 (pp. 481, 477, rec.), complainant herein DECEASED GERARDO VILLASIN
instituted an action before the Court of First Instance of Leyte, entitled "Bernardita R. Macariola,
plaintiff, versus Sinforosa R. Bales, et al., defendants," which was docketed as Civil Case No. 4235, (1) Dismissing the complaint against the defendants Mariquita Villasin and the
seeking the annulment of the project of partition made pursuant to the decision in Civil Case No. 3010 heirs of the deceased Gerardo Villasin;
and the two orders issued by respondent Judge approving the same, as well as the partition of the estate
and the subsequent conveyances with damages. It appears, however, that some defendants were
(2) Directing the plaintiff to pay the defendants Mariquita Villasin and the heirs of
dropped from the civil case. For one, the case against Dr. Arcadio Galapon was dismissed because he was
Gerardo Villasin the cost of the suit.
no longer a real party in interest when Civil Case No. 4234 was filed, having already conveyed on March
6, 1965 a portion of lot 1184-E to respondent Judge and on August 31, 1966 the remainder was sold to
the Traders Manufacturing and Fishing Industries, Inc. Similarly, the case against defendant Victoria C. IN THE CASE AGAINST THE DEFENDANT SINFOROSA R.
Asuncion was dismissed on the ground that she was no longer a real party in interest at the time the BALES, ET AL., WHO WERE PLAINTIFFS IN CIVIL CASE NO.
aforesaid Civil Case No. 4234 was filed as the portion of Lot 1184 acquired by her and respondent Judge 3010
from Dr. Arcadio Galapon was already sold on August 31, 1966 to the Traders Manufacturing and Fishing
industries, Inc. Likewise, the cases against defendants Serafin P. Ramento, Catalina Cabus, Ben Barraza (1) Dismissing the complaint against defendants Sinforosa R. Bales, Adela R.
Go, Jesus Perez, Traders Manufacturing and Fishing Industries, Inc., Alfredo R. Celestial and Pilar P. Herrer, Priscilla R. Solis, Luz R. Bakunawa, Anacorita R. Eng and Ruperto O. Reyes.
Celestial, Leopoldo Petilla and Remedios Petilla, Salvador Anota and Enriqueta Anota and Atty. Zotico A.
Tolete were dismissed with the conformity of complainant herein, plaintiff therein, and her counsel.
D. IN THE CASE AGAINST DEFENDANT BONIFACIO RAMO
 (1) Dismissing the complaint against Bonifacio Ramo;
(2) Directing the plaintiff to pay the defendant Bonifacio Ramo the cost of the suit.
SO ORDERED [pp. 531-533, rec.]
It is further disclosed by the record that the aforesaid decision was elevated to the Court of Appeals
upon perfection of the appeal on February 22, 1971.
I and the two orders approving the same, as well as the partition of the estate and the subsequent
WE find that there is no merit in the contention of complainant Bernardita R. Macariola, under her first
cause of action, that respondent Judge Elias B. Asuncion violated Article 1491, paragraph 5, of the New
Civil Code in acquiring by purchase a portion of Lot No. 1184-E which was one of those properties
involved in Civil Case No. 3010. 'That Article provides:
Article 1491. The following persons cannot acquire by purchase, even at a public or
judicial action, either in person or through the mediation of another:
xxx xxx xxx
(5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts,
and other officers and employees connected with the administration of justice, the
property and rights in litigation or levied upon an execution before the court
within whose jurisdiction or territory they exercise their respective functions; this
prohibition includes the act of acquiring by assignment and shall apply to lawyers,
with respect to the property and rights which may be the object of any litigation in
which they may take part by virtue of their profession [emphasis supplied].
The prohibition in the aforesaid Article applies only to the sale or assignment of the property which is the
subject of litigation to the persons disqualified therein. WE have already ruled that "... for the prohibition
to operate, the sale or assignment of the property must take place during the pendency of the litigation
involving the property" (The Director of Lands vs. Ababa et al., 88 SCRA 513, 519 [1979], Rosario vda. de
Laig vs. Court of Appeals, 86 SCRA 641, 646 [1978]).
In the case at bar, when the respondent Judge purchased on March 6, 1965 a portion of Lot 1184-E, the
decision in Civil Case No. 3010 which he rendered on June 8, 1963 was already final because none of the
parties therein filed an appeal within the reglementary period; hence, the lot in question was no longer
subject of the litigation. Moreover, at the time of the sale on March 6, 1965, respondent's order
dated October 23, 1963 and the amended order dated November 11, 1963 approving the October 16,
1963 project of partition made pursuant to the June 8, 1963 decision, had long become final for there
was no appeal from said orders.
Furthermore, respondent Judge did not buy the lot in question on March 6, 1965 directly from the
plaintiffs in Civil Case No. 3010 but from Dr. Arcadio Galapon who earlier purchased on July 31, 1964 Lot
1184-E from three of the plaintiffs, namely, Priscilla Reyes, Adela Reyes, and Luz R. Bakunawa after the
finality of the decision in Civil Case No. 3010. It may be recalled that Lot 1184 or more specifically one-
half thereof was adjudicated in equal shares to Priscilla Reyes, Adela Reyes, Luz Bakunawa, Ruperto
Reyes and Anacorita Reyes in the project of partition, and the same was subdivided into five lots
denominated as Lot 1184-A to 1184-E. As aforestated, Lot 1184-E was sold on July 31, 1964 to Dr.
Galapon for which he was issued TCT No. 2338 by the Register of Deeds of Tacloban City, and on March
6, 1965 he sold a portion of said lot to respondent Judge and his wife who declared the same for taxation
purposes only. The subsequent sale on August 31, 1966 by spouses Asuncion and spouses Galapon of
their respective shares and interest in said Lot 1184-E to the Traders Manufacturing and Fishing
Industries, Inc., in which respondent was the president and his wife was the secretary, took place long
after the finality of the decision in Civil Case No. 3010 and of the subsequent two aforesaid orders
therein approving the project of partition.
While it appears that complainant herein filed on or about November 9 or 11, 1968 an action before the
Court of First Instance of Leyte docketed as Civil Case No. 4234, seeking to annul the project of partition
conveyances, the same, however, is of no moment.
The fact remains that respondent Judge purchased on March 6, 1965 a portion of Lot 1184-E from Dr.
Arcadio Galapon; hence, after the finality of the decision which he rendered on June 8, 1963 in Civil Case
No. 3010 and his two questioned orders dated October 23, 1963 and November 11, 1963. Therefore, the
property was no longer subject of litigation.
The subsequent filing on November 9, or 11, 1968 of Civil Case No. 4234 can no longer alter, change or
affect the aforesaid facts that the questioned sale to respondent Judge, now Court of Appeals Justice,
was effected and consummated long after the finality of the aforesaid decision or orders.
Consequently, the sale of a portion of Lot 1184-E to respondent Judge having taken place over one year
after the finality of the decision in Civil Case No. 3010 as well as the two orders approving the project of
partition, and not during the pendency of the litigation, there was no violation of paragraph 5, Article
1491 of the New Civil Code.
It is also argued by complainant herein that the sale on July 31, 1964 of Lot 1184-E to Dr. Arcadio
Galapon by Priscilla Reyes, Adela Reyes and Luz R. Bakunawa was only a mere scheme to conceal the
illegal and unethical transfer of said lot to respondent Judge as a consideration for the approval of the
project of partition. In this connection, We agree with the findings of the Investigating Justice thus:
And so we are now confronted with this all-important question whether or not the
acquisition by respondent of a portion of Lot 1184-E and the subsequent transfer
of the whole lot to "TRADERS" of which respondent was the President and his wife
the Secretary, was intimately related to the Order of respondent approving the
project of partition, Exh. A.
Respondent vehemently denies any interest or participation in the transactions
between the Reyeses and the Galapons concerning Lot 1184-E, and he insists that
there is no evidence whatsoever to show that Dr. Galapon had acted, in the
purchase of Lot 1184-E, in mediation for him and his wife. (See p. 14 of
Respondent's Memorandum).
xxx xxx xxx
On this point, I agree with respondent that there is no evidence in the record
showing that Dr. Arcadio Galapon acted as a mere "dummy" of respondent in
acquiring Lot 1184-E from the Reyeses. Dr. Galapon appeared to this investigator
as a respectable citizen, credible and sincere, and I believe him when he testified
that he bought Lot 1184-E in good faith and for valuable consideration from the
 Reyeses without any intervention of, or previous understanding with Judge
Asuncion (pp. 391- 394, rec.).
On the contention of complainant herein that respondent Judge acted illegally in approving the project
of partition although it was not signed by the parties, We quote with approval the findings of the
Investigating Justice, as follows:
1. I agree with complainant that respondent should have required the signature of
the parties more particularly that of Mrs. Macariola on the project of partition
submitted to him for approval; however, whatever error was committed by
respondent in that respect was done in good faith as according to Judge Asuncion
he was assured by Atty. Bonifacio Ramo, the counsel of record of Mrs. Macariola,
That he was authorized by his client to submit said project of partition, (See Exh. B
and tsn p. 24, January 20, 1969). While it is true that such written authority if there
was any, was not presented by respondent in evidence, nor did Atty. Ramo appear
to corroborate the statement of respondent, his affidavit being the only one that
was presented as respondent's Exh. 10, certain actuations of Mrs. Macariola lead
this investigator to believe that she knew the contents of the project of partition,
Exh. A, and that she gave her conformity thereto. I refer to the following
documents:
1) Exh. 9 Certified true copy of OCT No. 19520 covering Lot 1154 of the
Tacloban Cadastral Survey in which the deceased Francisco Reyes holds a "1/4
share" (Exh. 9-a). On tills certificate of title the Order dated November 11, 1963,
(Exh. U) approving the project of partition was duly entered and registered on
November 26, 1963 (Exh. 9-D);
2) Exh. 7 Certified copy of a deed of absolute sale executed by Bernardita Reyes
Macariola onOctober 22, 1963, conveying to Dr. Hector Decena the one-fourth
share of the late Francisco Reyes-Diaz in Lot 1154. In this deed of sale the vendee
stated that she was the absolute owner of said one-fourth share, the same having
been adjudicated to her as her share in the estate of her father Francisco Reyes
Diaz as per decision of the Court of First Instance of Leyte under case No. 3010
(Exh. 7-A). The deed of sale was duly registered and annotated at the back of OCT
19520 on December 3, 1963 (see Exh. 9-e).
In connection with the abovementioned documents it is to be noted that in the
project of partition dated October 16, 1963, which was approved by respondent
on October 23, 1963, followed by an amending Order on November 11, 1963, Lot
1154 or rather 1/4 thereof was adjudicated to Mrs. Macariola. It is this 1/4 share in
Lot 1154 which complainant sold to Dr. Decena on October 22, 1963, several days
after the preparation of the project of partition.
Counsel for complainant stresses the view, however, that the latter sold her one-
fourth share in Lot 1154 by virtue of the decision in Civil Case 3010 and not
because of the project of partition, Exh. A. Such contention is absurd because from
the decision, Exh. C, it is clear that one-half of one- fourth of Lot 1154 belonged to
the estate of Francisco Reyes Diaz while the other half of said one-fourth was the
share of complainant's mother, Felisa Espiras; in other words, the decision did not
adjudicate the whole of the one-fourth of Lot 1154 to the herein complainant (see
Exhs. C-3 & C-4). Complainant became the owner of the entire one-fourth of Lot
1154 only by means of the project of partition, Exh. A. Therefore, if Mrs. Macariola
sold Lot 1154 on October 22, 1963, it was for no other reason than that she was
wen aware of the distribution of the properties of her deceased father as per Exhs.
A and B. It is also significant at this point to state that Mrs. Macariola admitted
during the cross-examination that she went to Tacloban City in connection with
the sale of Lot 1154 to Dr. Decena (tsn p. 92, November 28, 1968) from which we
can deduce that she could not have been kept ignorant of the proceedings in civil
case 3010 relative to the project of partition.
Complainant also assails the project of partition because according to her the
properties adjudicated to her were insignificant lots and the least valuable.
Complainant, however, did not present any direct and positive evidence to prove
the alleged gross inequalities in the choice and distribution of the real properties
when she could have easily done so by presenting evidence on the area, location,
kind, the assessed and market value of said properties. Without such evidence
there is nothing in the record to show that there were inequalities in the
distribution of the properties of complainant's father (pp. 386389, rec.).
Finally, while it is. true that respondent Judge did not violate paragraph 5, Article 1491 of the New Civil
Code in acquiring by purchase a portion of Lot 1184-E which was in litigation in his court, it was,
however, improper for him to have acquired the same. He should be reminded of Canon 3 of the Canons
of Judicial Ethics which requires that: "A judge's official conduct should be free from the appearance of
impropriety, and his personal behavior, not only upon the bench and in the performance of judicial
duties, but also in his everyday life, should be beyond reproach." And as aptly observed by the
Investigating Justice: "... it was unwise and indiscreet on the part of respondent to have purchased or
acquired a portion of a piece of property that was or had been in litigation in his court and caused it to
be transferred to a corporation of which he and his wife were ranking officers at the time of such
transfer. One who occupies an exalted position in the judiciary has the duty and responsibility of
maintaining the faith and trust of the citizenry in the courts of justice, so that not only must he be truly
honest and just, but his actuations must be such as not give cause for doubt and mistrust in the
uprightness of his administration of justice. In this particular case of respondent, he cannot deny that the
transactions over Lot 1184-E are damaging and render his actuations open to suspicion and distrust.
Even if respondent honestly believed that Lot 1184-E was no longer in litigation in his court and that he
was purchasing it from a third person and not from the parties to the litigation, he should nonetheless
have refrained from buying it for himself and transferring it to a corporation in which he and his wife
were financially involved, to avoid possible suspicion that his acquisition was related in one way or
another to his official actuations in civil case 3010. The conduct of respondent gave cause for the
litigants in civil case 3010, the lawyers practising in his court, and the public in general to doubt the
honesty and fairness of his actuations and the integrity of our courts of justice" (pp. 395396, rec.).
II
With respect to the second cause of action, the complainant alleged that respondent Judge violated
paragraphs 1 and 5, Article 14 of the Code of Commerce when he associated himself with the Traders
Manufacturing and Fishing Industries, Inc. as a stockholder and a ranking officer, said corporation having
been organized to engage in business. Said Article provides that:
Article 14 The following cannot engage in commerce, either in person or by
proxy, nor can they hold any office or have any direct, administrative, or financial
intervention in commercial or industrial companies within the limits of the
districts, provinces, or towns in which they discharge their duties:
 1. Justices of the Supreme Court, judges and officials of the department of public
prosecution in active service. This provision shall not be applicable to mayors,
municipal judges, and municipal prosecuting attorneys nor to those who by chance
are temporarily discharging the functions of judge or prosecuting attorney.
xxx xxx xxx
5. Those who by virtue of laws or special provisions may not engage in commerce
in a determinate territory.
It is Our considered view that although the aforestated provision is incorporated in the Code of
Commerce which is part of the commercial laws of the Philippines, it, however, partakes of the nature of
a political law as it regulates the relationship between the government and certain public officers and
employees, like justices and judges.
Political Law has been defined as that branch of public law which deals with the organization and
operation of the governmental organs of the State and define the relations of the state with the
inhabitants of its territory (People vs. Perfecto, 43 Phil. 887, 897 [1922]). It may be recalled that political
law embraces constitutional law, law of public corporations, administrative law including the law on
public officers and elections. Specifically, Article 14 of the Code of Commerce partakes more of the
nature of an administrative law because it regulates the conduct of certain public officers and employees
with respect to engaging in business: hence, political in essence.
It is significant to note that the present Code of Commerce is the Spanish Code of Commerce of 1885,
with some modifications made by the "Commission de Codificacion de las Provincias de Ultramar," which
was extended to the Philippines by the Royal Decree of August 6, 1888, and took effect as law in this
jurisdiction on December 1, 1888.
Upon the transfer of sovereignty from Spain to the United States and later on from the United States to
the Republic of the Philippines, Article 14 of this Code of Commerce must be deemed to have been
abrogated because where there is change of sovereignty, the political laws of the former sovereign,
whether compatible or not with those of the new sovereign, are automatically abrogated, unless they
are expressly re-enacted by affirmative act of the new sovereign.
Thus, We held in Roa vs. Collector of Customs (23 Phil. 315, 330, 311 [1912]) that:
By well-settled public law, upon the cession of territory by one nation to another,
either following a conquest or otherwise, ... those laws which are political in their
nature and pertain to the prerogatives of the former government immediately
cease upon the transfer of sovereignty. (Opinion, Atty. Gen., July 10, 1899).
While municipal laws of the newly acquired territory not in conflict with the, laws
of the new sovereign continue in force without the express assent or affirmative
act of the conqueror, the political laws do not. (Halleck's Int. Law, chap. 34, par.
14). However, such political laws of the prior sovereignty as are not in conflict with
the constitution or institutions of the new sovereign, may be continued in force if
the conqueror shall so declare by affirmative act of the commander-in-chief during
the war, or by Congress in time of peace. (Ely's Administrator vs. United States,
171 U.S. 220, 43 L. Ed. 142). In the case of American and Ocean Ins. Cos. vs. 356
Bales of Cotton (1 Pet. [26 U.S.] 511, 542, 7 L. Ed. 242), Chief Justice Marshall said:
On such transfer (by cession) of territory, it has never been
held that the relations of the inhabitants with each other
undergo any change. Their relations with their former
sovereign are dissolved, and new relations are created
between them and the government which has acquired their
territory. The same act which transfers their country,
transfers the allegiance of those who remain in it; and the
law which may be denominated political, is necessarily
changed, although that which regulates the intercourse and
general conduct of individuals, remains in force, until altered
by the newly- created power of the State.
Likewise, in People vs. Perfecto (43 Phil. 887, 897 [1922]), this Court stated that: "It is a general principle
of the public law that on acquisition of territory the previous political relations of the ceded region are
totally abrogated. "
There appears no enabling or affirmative act that continued the effectivity of the aforestated provision
of the Code of Commerce after the change of sovereignty from Spain to the United States and then to
the Republic of the Philippines. Consequently, Article 14 of the Code of Commerce has no legal and
binding effect and cannot apply to the respondent, then Judge of the Court of First Instance, now
Associate Justice of the Court of Appeals.
It is also argued by complainant herein that respondent Judge violated paragraph H, Section 3 of
Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, which provides
that:
Sec. 3. Corrupt practices of public officers. In addition to acts or omissions of
public officers already penalized by existing law, the following shall constitute
corrupt practices of any public officer and are hereby declared to be unlawful:
xxx xxx xxx
(h) Directly or indirectly having financial or pecuniary
interest in any business, contract or transaction in
connection with which he intervenes or takes part in his
official capacity, or in which he is prohibited by the
Constitution or by any Iaw from having any interest.
Respondent Judge cannot be held liable under the aforestated paragraph because there is no showing
that respondent participated or intervened in his official capacity in the business or transactions of the
Traders Manufacturing and Fishing Industries, Inc. In the case at bar, the business of the corporation in
which respondent participated has obviously no relation or connection with his judicial office. The
business of said corporation is not that kind where respondent intervenes or takes part in his capacity as
Judge of the Court of First Instance. As was held in one case involving the application of Article 216 of the
Revised Penal Code which has a similar prohibition on public officers against directly or indirectly
becoming interested in any contract or business in which it is his official duty to intervene, "(I)t is not
enough to be a public official to be subject to this crime; it is necessary that by reason of his office, he
has to intervene in said contracts or transactions; and, hence, the official who intervenes in contracts or
transactions which have no relation to his office cannot commit this crime.' (People vs. Meneses, C.A. 40
O.G. 11th Supp. 134, cited by Justice Ramon C. Aquino; Revised Penal Code, p. 1174, Vol. 11 [1976]).
It does not appear also from the records that the aforesaid corporation gained any undue advantage in
its business operations by reason of respondent's financial involvement in it, or that the corporation
benefited in one way or another in any case filed by or against it in court. It is undisputed that there was
no case filed in the different branches of the Court of First Instance of Leyte in which the corporation
was either party plaintiff or defendant except Civil Case No. 4234 entitled "Bernardita R. Macariola,
plaintiff, versus Sinforosa O. Bales, et al.,"wherein the complainant herein sought to recover Lot 1184-E
from the aforesaid corporation. It must be noted, however, that Civil Case No. 4234 was filed only on
November 9 or 11, 1968 and decided on November 2, 1970 by CFI Judge Jose D. Nepomuceno when
respondent Judge was no longer connected with the corporation, having disposed of his interest therein
on January 31, 1967.
Under Section 67 of said law, the power to remove or dismiss judges was then vested in the President of
the Philippines, not in the Commissioner of Civil Service, and only on two grounds, namely, serious
misconduct and inefficiency, and upon the recommendation of the Supreme Court, which alone is
authorized, upon its own motion, or upon information of the Secretary (now Minister) of Justice to
conduct the corresponding investigation. Clearly, the aforesaid section defines the grounds and
prescribes the special procedure for the discipline of judges.
And under Sections 5, 6 and 7, Article X of the 1973 Constitution, only the Supreme Court can discipline
judges of inferior courts as well as other personnel of the Judiciary.

It is true that under Section 33 of the Civil Service Act of 1959: "The Commissioner may, for ... violation
Furthermore, respondent is not liable under the same paragraph because there is no provision in both
of the existing Civil Service Law and rules or of reasonable office regulations, or in the interest of the
the 1935 and 1973 Constitutions of the Philippines, nor is there an existing law expressly prohibiting
service, remove any subordinate officer or employee from the service, demote him in rank, suspend him
members of the Judiciary from engaging or having interest in any lawful business.
for not more than one year without pay or fine him in an amount not exceeding six months' salary."
Thus, a violation of Section 12 of Rule XVIII is a ground for disciplinary action against civil service officers
It may be pointed out that Republic Act No. 296, as amended, also known as the Judiciary Act of 1948, and employees.
does not contain any prohibition to that effect. As a matter of fact, under Section 77 of said law,
municipal judges may engage in teaching or other vocation not involving the practice of law after office
However, judges cannot be considered as subordinate civil service officers or employees subject to the
hours but with the permission of the district judge concerned.
disciplinary authority of the Commissioner of Civil Service; for, certainly, the Commissioner is not the
head of the Judicial Department to which they belong. The Revised Administrative Code (Section 89) and
Likewise, Article 14 of the Code of Commerce which prohibits judges from engaging in commerce is, as the Civil Service Law itself state that the Chief Justice is the department head of the Supreme Court (Sec.
heretofore stated, deemed abrogated automatically upon the transfer of sovereignty from Spain to 20, R.A. No. 2260) [1959]); and under the 1973 Constitution, the Judiciary is the only other or second
America, because it is political in nature. branch of the government (Sec. 1, Art. X, 1973 Constitution). Besides, a violation of Section 12, Rule XVIII
cannot be considered as a ground for disciplinary action against judges because to recognize the same as
applicable to them, would be adding another ground for the discipline of judges and, as aforestated,
Moreover, the prohibition in paragraph 5, Article 1491 of the New Civil Code against the purchase by
Section 67 of the Judiciary Act recognizes only two grounds for their removal, namely, serious
judges of a property in litigation before the court within whose jurisdiction they perform their duties,
misconduct and inefficiency.
cannot apply to respondent Judge because the sale of the lot in question to him took place after the
finality of his decision in Civil Case No. 3010 as well as his two orders approving the project of partition;
hence, the property was no longer subject of litigation. Moreover, under Section 16(i) of the Civil Service Act of 1959, it is the Commissioner of Civil Service who
has original and exclusive jurisdiction "(T)o decide, within one hundred twenty days, after submission to
it, all administrative cases against permanent officers and employees in the competitive service, and,
In addition, although Section 12, Rule XVIII of the Civil Service Rules made pursuant to the Civil Service
except as provided by law, to have final authority to pass upon their removal, separation, and suspension
Act of 1959 prohibits an officer or employee in the civil service from engaging in any private business,
and upon all matters relating to the conduct, discipline, and efficiency of such officers and employees;
vocation, or profession or be connected with any commercial, credit, agricultural or industrial
and prescribe standards, guidelines and regulations governing the administration of discipline"
undertaking without a written permission from the head of department, the same, however, may not fall
(emphasis supplied). There is no question that a judge belong to the non-competitive or unclassified
within the purview of paragraph h, Section 3 of the Anti-Graft and Corrupt Practices Act because the last
service of the government as a Presidential appointee and is therefore not covered by the aforesaid
portion of said paragraph speaks of a prohibition by the Constitution or law on any public officer from
provision. WE have already ruled that "... in interpreting Section 16(i) of Republic Act No. 2260, we
having any interest in any business and not by a mere administrative rule or regulation. Thus, a violation
emphasized that only permanent officers and employees who belong to the classified service come
of the aforesaid rule by any officer or employee in the civil service, that is, engaging in private business
under the exclusive jurisdiction of the Commissioner of Civil Service" (Villaluz vs. Zaldivar, 15 SCRA
without a written permission from the Department Head may not constitute graft and corrupt practice
710,713 [1965], Ang-Angco vs. Castillo, 9 SCRA 619 [1963]).
as defined by law.

Although the actuation of respondent Judge in engaging in private business by joining the Traders
On the contention of complainant that respondent Judge violated Section 12, Rule XVIII of the Civil
Manufacturing and Fishing Industries, Inc. as a stockholder and a ranking officer, is not violative of the
Service Rules, We hold that the Civil Service Act of 1959 (R.A. No. 2260) and the Civil Service Rules
provissions of Article 14 of the Code of Commerce and Section 3(h) of the Anti-Graft and Corrupt
promulgated thereunder, particularly Section 12 of Rule XVIII, do not apply to the members of the
Practices Act as well as Section 12, Rule XVIII of the Civil Service Rules promulgated pursuant to the Civil
Judiciary. Under said Section 12: "No officer or employee shall engage directly in any private business,
Service Act of 1959, the impropriety of the same is clearly unquestionable because Canon 25 of the
vocation, or profession or be connected with any commercial, credit, agricultural or industrial
Canons of Judicial Ethics expressly declares that:
undertaking without a written permission from the Head of Department ..."

A judge should abstain from making personal investments in enterprises which are
It must be emphasized at the outset that respondent, being a member of the Judiciary, is covered by
apt to be involved in litigation in his court; and, after his accession to the bench, he
Republic Act No. 296, as amended, otherwise known as the Judiciary Act of 1948 and by Section 7, Article
should not retain such investments previously made, longer than a period
X, 1973 Constitution.
sufficient to enable him to dispose of them without serious loss. It is desirable that
 he should, so far as reasonably possible, refrain from all relations which would
normally tend to arouse the suspicion that such relations warp or bias his
judgment, or prevent his impartial attitude of mind in the administration of his
judicial duties. ...
WE are not, however, unmindful of the fact that respondent Judge and his wife had withdrawn on
January 31, 1967 from the aforesaid corporation and sold their respective shares to third parties, and it
appears also that the aforesaid corporation did not in anyway benefit in any case filed by or against it in
court as there was no case filed in the different branches of the Court of First Instance of Leyte from the
time of the drafting of the Articles of Incorporation of the corporation on March 12, 1966, up to its
incorporation on January 9, 1967, and the eventual withdrawal of respondent on January 31, 1967 from
said corporation. Such disposal or sale by respondent and his wife of their shares in the corporation only
22 days after the incorporation of the corporation, indicates that respondent realized that early that
their interest in the corporation contravenes the aforesaid Canon 25. Respondent Judge and his wife
therefore deserve the commendation for their immediate withdrawal from the firm after its
incorporation and before it became involved in any court litigation
litigants in his court so as to avoid suspicion 'that his social or business relations or
friendship constitute an element in determining his judicial course" (par. 30,
Canons of Judicial Ethics), but if a Judge does have social relations, that in itself
would not constitute a ground for disciplinary action unless it be clearly shown
that his social relations be clouded his official actuations with bias and partiality in
favor of his friends (pp. 403-405, rec.).
In conclusion, while respondent Judge Asuncion, now Associate Justice of the Court of Appeals, did not
violate any law in acquiring by purchase a parcel of land which was in litigation in his court and in
engaging in business by joining a private corporation during his incumbency as judge of the Court of First
Instance of Leyte, he should be reminded to be more discreet in his private and business activities,
because his conduct as a member of the Judiciary must not only be characterized with propriety but
must always be above suspicion.
WHEREFORE, THE RESPONDENT ASSOCIATE JUSTICE OF THE COURT OF APPEALS IS HEREBY REMINDED
TO BE MORE DISCREET IN HIS PRIVATE AND BUSINESS ACTIVITIES.

III
SO ORDERED.

With respect to the third and fourth causes of action, complainant alleged that respondent was guilty of
coddling an impostor and acted in disregard of judicial decorum, and that there was culpable defiance of
the law and utter disregard for ethics. WE agree, however, with the recommendation of the Investigating
Justice that respondent Judge be exonerated because the aforesaid causes of action are groundless, and
WE quote the pertinent portion of her report which reads as follows:

The basis for complainant's third cause of action is the claim that respondent
associated and closely fraternized with Dominador Arigpa Tan who openly and
publicly advertised himself as a practising attorney (see Exhs. I, I-1 and J) when in
truth and in fact said Dominador Arigpa Tan does not appear in the Roll of
Attorneys and is not a member of the Philippine Bar as certified to in Exh. K.

The "respondent denies knowing that Dominador Arigpa Tan was an "impostor"
and claims that all the time he believed that the latter was a bona fide member of
the bar. I see no reason for disbelieving this assertion of respondent. It has been
shown by complainant that Dominador Arigpa Tan represented himself publicly as
an attorney-at-law to the extent of putting up a signboard with his name and the
words "Attorney-at Law" (Exh. I and 1- 1) to indicate his office, and it was but
natural for respondent and any person for that matter to have accepted that
statement on its face value. "Now with respect to the allegation of complainant
that respondent is guilty of fraternizing with Dominador Arigpa Tan to the extent
of permitting his wife to be a godmother of Mr. Tan's child at baptism (Exh. M &
M-1), that fact even if true did not render respondent guilty of violating any canon
of judicial ethics as long as his friendly relations with Dominador A. Tan and family
did not influence his official actuations as a judge where said persons were
concerned. There is no tangible convincing proof that herein respondent gave any
undue privileges in his court to Dominador Arigpa Tan or that the latter benefitted
in his practice of law from his personal relations with respondent, or that he used
his influence, if he had any, on the Judges of the other branches of the Court to
favor said Dominador Tan.

Of course it is highly desirable for a member of the judiciary to refrain as much as

possible from maintaining close friendly relations with practising attorneys and
Republic of the Philippines under their legitimate Constitution. And he cites, in support of this last proposition, the decisions of the
SUPREME COURT Supreme Court of the United States in the cases of Texas vs. White (7 Wall., 700, 743); Horn vs. Lockart
Manila (17 Wall., 570, 581); United States vs. Home Insurance Co. (22 Wall., 99, 104); Sprott vs.United States (20
Wall., 459).
EN BANC
The City Fiscal of Manila appeared before this Court as amicus curiae. In his memorandum he submits
that the petition for habeas corpus be denied on the following grounds: That the Court of Special and
G.R. No. L-49 November 12, 1945
Exclusive Criminal Jurisdiction and the Acts, Ordinances and Executive Orders, creating it are not of a
political complexion, for said Court was created, and the crimes and offenses placed under its jurisdiction
WILLIAM F. PERALTA, petitioner, were penalized heavily, in response to an urgent necessity, according to the preamble of Ordinance No.
vs. 7; that the right to appeal in a criminal case is not a constitutional right; and that the summary
THE DIRECTOR OF PRISONS, respondent. procedure established in said Ordinance No. 7 is not violative of the provision of Article III, section 1 (18)
of the Constitution of the Commonwealth, to the effect that no person shall be compelled to be a
William F. Peralta in his own behalf. witness against himself, nor of the provision of section 1 (1) of the same Article that no person shall be
Office of the Solicitor General Taada for respondent. deprived of life, liberty, or property without due process of law.
City Fiscal Mabanag as amicus curiae.
The features of the summary procedure adopted by Ordinance No. 7, assailed by the petitioner and the
FERIA, J.: Solicitor General as impairing the constitutional rights of an accused are: that court may interrogate the
accused and witnesses before trial in order to clarify the points in dispute; that the refusal of the accused
to answer the questions may be considered unfavorable to him; that if from the facts admitted at the
Petitioner-defendant, a member of the Metropolitan Constabulary of Manila charged with the preliminary interrogatory it appears that the defendant is guilty, he may be immediately convicted; and
supervision and control of the production, procurement and distribution of goods and other necessaries that the sentence of the sentence of the court is not appealable, except in case of death penalty which
as defined in section 1 of Act No. 9 of the National Assembly of the so-called Republic of the Philippines, cannot be executed unless and until reviewed and affirmed by a special division of the Supreme Court
was prosecuted for the crime of robbery as defined and penalized by section 2 (a) of Act No. 65 of the composed of three Justices.
same Assembly. He was found guilty and sentenced to life imprisonment, which he commenced to serve
on August 21, 1944, by the Court of Special and Exclusive Criminal Jurisdiction, created in section 1 of
Ordinance No. 7 promulgated by the President of the so-called Republic of the Philippines, pursuant to Before proceeding further, and in order to determine the law applicable to the questions involved in the
the authority conferred upon him by the Constitution and laws of the said Republic. And the procedure present case, it is necessary to bear in mind the nature and status of the government established in
followed in the trial was the summary one established in Chapter II of Executive Order No. 157 of the these Islands by the Japanese forces of occupation under the designation of Republic of the Philippines.
Chairman of the Executive Commission, made applicable to the trial violations of said Act No. 65 by
section 9 thereof and section 5 of said Ordinance No. 7. In the case of Co Kim Cham vs. Valdez Tan Keh and Dizon (G. R. No. L-5, pp. 113, 127, ante), recently
decided, this Court, speaking through the Justice who pens this decision, held:
The petition for habeas corpus is based on the ground that the Court of Special and Executive Criminal
Jurisdiction created by Ordinance No. 7 "was a political instrumentality of the military forces of the In view of the foregoing, it is evident that the Philippines Executive Commission, which was
Japanese Imperial Army, the aims and purposes of which are repugnant to those aims and political organized by Order No. 1, issued on January 23, 1942, by the Commander of the Japanese
purposes of the Commonwealth of the Philippines, as well as those of the United States of America, and forces, was a civil government established by the military forces of occupation and therefore
therefore, null and void ab initio," that the provisions of said Ordinance No. 7 are violative of the a de facto government of the second kind. It was not different from the government
fundamental laws of the Commonwealth of the Philippines and "the petitioner has been deprived of his established by the British in Castine, Maine, or by the United States in Tanpico, Mexico. As
constitutional rights"; that the petitioner herein is being punished by a law created to serve the political Halleck says, "the government established over an enemy's territory during the military
purpose of the Japanese Imperial Army in the Philippines, and "that the penalties provided for are much occupation may exercise all the powers given by the laws of war to the conqueror over the
(more) severe than the penalties provided for in the Revised Penal Code." conquered, and is subject to all restrictions which that code imposes. It is of little
consequence whether such government be called a military or civil government. Its character
The Solicitor General, in his answer in behalf of the respondent, states that, in his own opinion, for the is the same and the source of its authority the same. In either case it is a government
reasons expressed in his brief in the case of People of the Philippines, plaintiff-appellant, vs. Benedicto imposed by the laws of war and so far as it concerns the inhabitants of such territory or the
Jose y Santos, defendant-appellee, G. R. No. L-22 (p. 612, post), the acts and proceedings taken and had rest of the world those laws alone determine the legality or illegality of its acts." (vol. 2 p.
before the said Court of Special and Exclusive Criminal Jurisdiction which resulted in the conviction and 466.) The fact that the Philippine Executive Commission was a civil and not a military
imprisonment of the herein petitioner, should now be denied force and efficacy, and therefore the government and was run by Filipinos and not by Japanese nationals is of no consequence.
petition for habeas corpus should be granted. The reasons advanced by the Solicitor General in said brief
and in his reply memorandum in support of his contention are, that the Court of Special and Exclusive And speaking of the so-called Republic of the Philippines in the same decision, this Court said:
Criminal Jurisdiction created, and the summary procedure prescribed therefor, by said Ordinance No. 7
in connection with Executive Order No. 157 of the Chairman of the Executive Commission are tinged
The so-called Republic of the Philippines, apparently established and organized as a sovereign
with political complexion; that the procedure prescribed in Ordinance No. 7 does not afford a fair trial,
state independent from any other government by the Filipino people, was, in truth and
violates the Constitution of the Commonwealth, and impairs the Constitutional rights of accused persons
reality, a government established by the belligerent occupant or the Japanese forces of
 occupation. It was of the same character as the Philippine Executive Commission, and the the Confederate States, the constitution of each state and that of the United States or the Union
ultimate source of its authority was the same the Japanese military authority and continued in force in those states during the War of Secession; while the Constitution of the
government. As General MacArthur stated in his proclamation of October 23, 1944, a portion Commonwealth Government was suspended during the occupation of the Philippines by the Japanese
of which has been already quoted, "under enemy duress, a so-called government styled as forces of the belligerent occupant at regular war with the United States.
the 'Republic of the Philippines' was established on October 14, 1943, based upon neither the
free expression of the peoples" will nor the sanction of the Government of the United States.'
The question which we have to resolve in the present case in the light of the law of nations are, first, the
Japan had no legal power to grant independence to the Philippines or transfer the sovereignty
validity of the creation of the Court of Special and Exclusive Criminal Jurisdiction, and of the summary
of the United States to, or recognize the latent sovereignty of the Filipino people, before its
procedure adopted for that court; secondly, the validity of the sentence which imprisonment during the
military occupation and possession of the Islands had matured into an absolute and
Japanese military occupation; and thirdly, if they were then valid, the effect on said punitive sentence of
permanent dominion or sovereignty by a treaty of peace or other means recognized in the
the reoccupation of the Philippines and the restoration therein of the Commonwealth Government.
law of nations.

(1) As to the validity of the creation of the Court of Special and Exclusive Criminal Jurisdiction by
As the so-called Republic of the Philippines was a de facto government of the second kind (of paramount
Ordinance No. 7, the only factor to be considered is the authority of the legislative power which
force), as the government established in Castine, Maine, during its occupation by the British forces and
promulgated said law or ordinance. It is well established in International Law that "The criminal
as that of Tampico, Mexico, occupied during the war with that the country by the United State Army, the
jurisdiction established by the invader in the occupied territory finds its source neither in the laws of the
question involved in the present case cannot be decided in the light of the Constitution of the
conquering or conquered state, it is drawn entirely form the law martial as defined in the usages of
Commonwealth Government; because the belligerent occupant was totally independent of the
nations. The authority thus derived can be asserted either through special tribunals, whose authority and
constitution of the occupied territory in carrying out the administration over said territory; and the
procedure is defined in the military code of the conquering state, or through the ordinary courts and
doctrine laid down by the Supreme Court of the United States in the cases involving the validity of
authorities of the occupied district." (Taylor, International Public Law, p. 598.) The so-called Republic of
judicial and legislative acts of the Confederate States, considered as de factogovernments of the third
the Philippines, being a governmental instrumentality of the belligerent occupant, had therefore the
kind, does not apply to the acts of the so-called Republic of the Philippines which is a de
power or was competent to create the Court of Special and Exclusive Criminal Jurisdiction. No question
facto government of paramount force. The Constitution of the so-called Republic of the Philippines can
may arise as to whether or not a court is of political complexion, for it is mere a governmental agency
neither be applied, since the validity of an act of a belligerent occupant cannot be tested in the light of
charged with the duty of applying the law to cases falling within its jurisdiction. Its judgments and
another act of the same occupant, whose criminal jurisdiction is drawn entirely from the law martial as
sentences may be of political complexion, or not depending upon the nature or character of the law so
defined in the usages of nations.
applied. There is no room for doubt, therefore, as to the validity of the creation of the court in question.

In the case of United States vs. Rice (4 Wheaton, 246), the Supreme Court of the United States held that,
With respect to the Summary procedure adopted by Ordinance No. 7, and followed in the trial of the
by the military occupation of Castine, Maine, the sovereignty of the United States in the territory was, of
case which resulted in the conviction of the herein petitioner, there is also no question as to the power
course, suspended, and the laws of the United States could no longer be rightfully enforced there or be
or competence of the belligerent occupant to promulgate the law providing for such procedure. For "the
obligatory upon the inhabitants who remained and submitted to the belligerent occupant. By the
invader deals freely with the relations of the inhabitants of the occupied territory towards himself . . . for
surrender the inhabitants passed under a temporary allegiance to the British government, and were
his security also, he declares certain acts, not forbidden by the ordinary laws of the country, to be
bound by such laws, and such only, as it chose to recognize and impose. And Oppenheim, in his Treatise
punishable; and he so far suspends the laws which guard personal liberty as is required for the summary
on International Law, says that, in carrying out the administration over the occupied territory and its
punishment of any one doing such acts." (Hall's International Law, seventh ed., p. 5000). A belligerent
inhabitants, "the (belligerent) occupant is totally independent of the constitution and the laws of the
"occupant may where necessary, set up military courts instead of the ordinary courts; and in case, and in
territory, since occupation is an aim of warfare, and the maintenance and safety of his forces, and the
so far as, he admits the administration of justice by the ordinary courts, he may nevertheless, so far as is
purpose of war, stand in the foreground of his interest and must be promoted under all circumstances or
necessary for military purposes, or for the maintenance of public order and safetytemporarily alter the
conditions. (Vol. II, Sixth Edition, Revised, 1944, p. 342.)
laws, especially the Criminal Law, on the basis of which justice is administered as well as the laws
regarding procedure." (Oppenheim's International Law, Vol. II, sixth edition, 1944, p.349.)
The doctrine laid down in the decisions of the Supreme Court of the United States (in the cases of
Texas vs.White, 7 Wall., 700; Horn vs. Lockart, 17 Wall., 570; Williams vs. Bruffy, 96 U. S., 176 United
No objection can be set up to the legality of its provisions in the light of the precepts of our
States vs. Home Insurance Co., 20 Wall., 249; Sprott vs. United States, 20 Wall., 459, and others) that the
Commonwealth Constitution relating to the rights of accused under that Constitution, because the latter
judicial and legislative acts of the Confederate States which impaired the rights of the citizens under the
was not in force during the period of the Japanese military occupation, as we have already stated. Nor
Constitution of the United States or of the States, or were in conflict with those constitutions, were null
may said Constitution be applied upon its revival at the time of the re-occupation of the Philippines by
and void, is not applicable to the present case. Because that doctrine rests on the propositions that "the
virtue of the principle of postliminium because "a constitution should operate prospectively only, unless
concession (of belligerency) made to the Confederate Government . . . sanctioned no hostile legislation .
the words employed show a clear intention that it should have a retrospective effect" (Cooley's
. . and it impaired in no respect the rights of loyal and citizens as they existed at the commencement of
Constitutional Limitations, seventh edition, page 97, and cases quoted and cited in the footnote),
hostilities" (Williams vs. Bruffy, supra);that the Union is perpetual and indissoluble, and the obligation of
especially as regards laws of procedure applied to cases already terminated completely.
allegiance to the to the estate and obedience to her laws and the estate constitution, subject to the
Constitution of the United States, remained unimpaired during the War of Secession
(Texas vs. White, supra) and that the Confederate States "in most, if not in all instances, merely The only restrictions or limitations imposed upon the power of a belligerent occupant to alter the laws or
transferred the existing state organizations to the support of a new and different national head. the promulgate new ones, especially the criminal law as well as the laws regarding procedure, so far as it is
same constitution, the same laws for the protection of the property and personal rights remained and necessary for military purposes, that is, for his control of the territory and the safety and protection of
were administered by the same officers." (Sprott vs. United States, supra). In fine, because in the case of his army, are those imposed by the Hague Regulations, the usages established by civilized nations, the
laws of humanity and the requirements of public conscience. It is obvious that the summary procedure
under consideration does not violate those precepts. It cannot be considered as violating the laws of
humanity and public conscience, for it is less objectionable, even from the point of view of those who are
used to the accusatory system of criminal procedure than the procedural laws based on the semi-
inquisitorial or mixed system prevailing in France and other countries in continental Europe.
(2) The validity of the sentence rendered by the Court of Special and Exclusive Criminal Jurisdiction which
imposes life imprisonment upon the herein petitioner, depends upon the competence or power of the
belligerent occupant to promulgate Act No. 65 which punishes the crime of which said petitioner was
convicted.
Westlake says that Article XLIII, Section III, of the Hague Conventions of 1907 "indicates that the laws to
be enforced by the occupant consist of, first, the territorial law in general, as that which stands to the
public order and social and commercial life of the district in a relation of mutual adaptation, so that any
needless displacement of it would defeat the object which the invader is enjoined to have in view, and
secondly, such variations of the territorial law as may be required by real necessity and are not expressly
prohibited by any of the rules which will come before us. Such variations will naturally be greatest in
what concerns the relation of the communities and individuals within the district to the invading army
and its followers, it being necessary for the protection of the latter, and for the unhindered prosecution
of the war by them, that acts committed to their detriment shall not only lose what justification the
territorial law might give them as committed against enemies, but shall be repressed more severely than
the territorial law would repress acts committed against fellow subjects. Indeed the entire relation
between the invaders and the invaded, so far as it may fall within the criminal department whether by
the intrinsic nature of the acts done or in consequence of the regulations made by the invaders, may be
considered as taken out of the territorial law and referred to what is called martial law." (Westlake,
International Law, Part II, War, p. 96.)
According to Hyde (International Law, Vol. II, p. 386), the term "martial law," in so far as it is used to
describe any fact in relation to belligerent occupation, does not refer to a particular code or system of
law, or to a special agency entrusted with its administration. The term merely signifies that the body of
law actually applied, having the sanction of military authority, is essentially martial. All law, by
whomsoever administered, in an occupied district martial law; and it is none the less so when applied by
civil courts in matters devoid of special interest to the occupant. The words "martial law" are doubtless
suggestive of the power of the occupant to share the law as he sees fit; that is, to determine what shall
be deemed lawful or unlawful acts, to establish tests for ascertaining the guilt of offenders, to fix
penalties, and generally to administer justice through such agencies as the found expedient.
And the United States Rules of Land Warfare provide that the belligerent occupant may promulgate such
new laws and regulations as military necessity demands, and in this class will be included those laws
which come into being as a result of military rule; that is, those which establish new crimes and offenses
incident to a state of war and are necessary for the control of the country and the protection of the
army, for the principal object of the occupant is to provide for the security of the invading army and to
contribute to its support and efficiency and the success of its operations. (Pub. 1940, pp. 76, 77.)
From the above it appears clear that it was within the power and competence of the belligerent
occupant to promulgate, through the National Assembly of the so-called Republic of the Philippines, Act
No. 65 of the said Assembly, which penalizes the crimes of robbery and other offenses by imprisonment
ranging from the maximum period of the imprisonment prescribed by the laws and ordinances
promulgated by the President of the so-called Republic as minimum, to life imprisonment or death as
maximum. Although these crimes are defined in the Revised Penal Code, they were altered and
penalized by said Act No. 65 with different and heavier penalties, as new crimes and offenses demanded
by military necessity, incident to a state of war, and necessary for the control of the country by the
belligerent occupant, the protection and safety of the army of occupation, its support and efficiency, and
the success of its operations.
They are not the same ordinary offenses penalized by the Revised Penal Code. The criminal acts
penalized by said Act No. 65 are those committed by persons charged or connected with the supervision
and control of the production, procurement and distribution of foods and other necessaries; and the
penalties imposed upon the violators are different from and much heavier than those provided by the
Revised Penal Code for the same ordinary crimes. The acts penalized by said Act were taken out of the
territorial law or Revised Penal Code, and referred to what is called martial law by international jurists,
defined above by Hyde, in order, not only to prevent food and other necessaries from reaching the
"guerrillas" which were harassing the belligerent occupant from every nook and corner of the country,
but also to preserve the food supply and other necessaries in order that, in case of necessity, the
Imperial Japanese forces could easily requisition them, as they did, and as they had the right to do in
accordance with the law of nations for their maintenance and subsistence (Art. LII, Sec. III, Hague
Conventions of 1907). Especially taking into consideration the fact, of which this court may take judicial
notice, that the Imperial Japanese Army had depended mostly for their supply upon the produce of this
country.
The crimes penalized by Act No. 65 as well as the crimes against national security and the law of
nations, to wit: treason, espionage, inciting war, violation of neutrality, correspondence with hostile
country, flight to enemy's country, piracy; and the crimes against public order, such as rebellion, sedition
and disloyalty, illegal possession of firearms and other, penalized by Ordinance No. 7 and placed under
jurisdiction of the Court of Special and Exclusive Criminal Jurisdiction are all of a political complexion,
because the acts constituting those offenses were punished, as are all political offenses, for public rather
than private reasons, and were acts in aid or favor of the enemy and against the welfare, safety and
security of the belligerent occupant. While it is true that these offenses, when committed against the
Commonwealth or United States Government, are defined and also penalized by the territorial law
Revised Penal Code, they became inapplicable as crimes against the occupier upon the occupation of the
Islands by the Japanese forces. And they had to be taken out of the territorial law and made punishable
by said Ordinance No. 7, for they were not penalized before under the Revised Penal Code when
committed against the belligerent occupant or the government established by him in these Island. They
are also considered by some writers as war crimes in a broad sense. In this connection Wheaton
observes the following:
"Of 'war crimes' the number is naturally indefinite, depending as they do on the acts from time to time
ordered to be done or forbidden to be done in the martial law proclamation or regulations of the
invading or occupying commander. Thus, in the Anglo-Boer war, the British military authorities
proclaimed the following to be offenses against their martial law; Being in possession of arms,
ammunition, etc.; traveling without a permit; sending prohibited goods; holding meetings other than
those allowed; using seditious language; spreading alarmist reports; overcharging for goods; wearing
uniforms without due authority; going out of doors between certain hours; injuring military animals or
stores; being in possession, without a permit, of horses, vehicles, cycles, etc.; hindering those in
execution of military orders; trespassing on defense works. Such offenses, together with several others,
were specified in the Japanese regulations made in the Russo-Japanese war." (Wheaton's International
Law, War, seventh edition, 1944, p. 242.)
It is, therefore, evident that the sentence rendered by the Court of Special and Exclusive Criminal
Jurisdiction against the petitioner, imposing upon him the penalty of life imprisonment, was good and
valid, since it was within the admitted power or competence of the belligerent occupant to promulgate
the law penalizing the crime of which petitioner was convicted.
(3) The last question is the legal effect of the reoccupation of the Philippines and restoration of the
Commonwealth Government; that is whether or not, by the principle of postliminy, the punitive
sentence which petitioner is now serving fell through or ceased to be valid from that time.
In order to resolve this last question, it is not necessary to enter into an elaborate discussion on the petitioner under said law, a sentence which, before the proclamation, had already become null and of no
matter. It is sufficient to quote the opinion on the subject of several international jurists and our recent effect.
decision in the case ofCo Kim Cham vs. Valdez Tan Keh and Dizon, supra.
We therefore hold that the punitive sentence under consideration, although good and valid during the
Hall, commenting on the effect of the principle of postliminy upon sentences of the tribunals continued military occupation of the Philippines by the Japanese forces, ceased to be good and valid ipso
or created by the belligerent occupant, opines "that judicial acts done under this control, when they are facto upon the reoccupation of these Island and the restoration therein of the Commonwealth
not of a political complexion, administrative acts so done, to the extent that they take effect during the Government.
continuance of his control, and the various acts done during the same time by private persons under the
sanction of municipal law, remain good. . . . Political acts on the other hand fall through as of course,
In view of all the foregoing, the writ of habeas corpus prayed for is hereby granted and it is ordered that
whether they introduce any positive change into the organization of the country, or whether they only
the petitioner be released forthwith, without pronouncement as to costs. So ordered.
suspend the working of that already in existence. The execution also of punitive sentences ceases as of
course when they have had reference to acts not criminal by the municipal law of the state, such for
example as acts directed against the security or control of the invader." (Hall's International Law, seventh Jaranilla, Pablo and Bengzon, JJ., concur.
edition, p. 518.) Moran, C.J., concurs in the result.

Westlake, speaking of the duration of the validity of punitive sentences for offenses such as the one in
question, which is within the admitted power or competence of the belligerent occupant to punish, says
that: "To the extent to which the legal power of the occupant is admitted he can make law for the
duration of his occupation. Like any other legislator he is morally subject to the duty of giving sufficient
notice of his enactments or regulations, not indeed so as to be debarred from carrying out his will
without notice, when required by military necessity and so far as practically carrying out his will can be
distinguished from punishment, but always remembering that to punish for breach of a regulation a
person who was justifiably ignorant of it would be outrageous. But the law made by the occupant within
his admitted power, whether morally justifiable or not, will bind any member of the occupied population
as against any other member of it, and will bind as between them all and their national government, so
far as it produces an effect during the occupation. When the occupation comes to an end the authority
of the national government is restored, either by the progress of operations during the war or by the
conclusion of a peace, no redress can be had for what has been actually carried out but nothing further
can follow from the occupant's legislation. A prisoner detained under it must be released, and no civil
right conferred by it can be further enforced. The enemy's law depends on him for enforcement as well
as for enactment. The invaded state is not subject to the indignity of being obliged to execute his
commands. (Westlake, International Law, Part II, War, pp. 97, 98.)

And Wheaton, who, as above stated, considers as war crimes such offenses as those penalized in
Ordinance No. 7 and Act No. 65, says: "In general, the cast of the occupant possess legal validity, and
under international law should not be abrogated by the subsequent government. But this rule does not
necessarily apply to acts that exceed the occupant's power (e.g., alienation of the domains of the State
or the sovereign), to sentences for 'war treason' and 'war crimes,' to acts of a political character, and to
those that beyond the period of occupation. When occupation ceases, no reparation is legally due for
what has already been carried out." (Wheaton's International Law, supra, p. 245.)

We have already held in our recent decision in the case of Co Kim Cham vs. Valdez Tan Keh and Dizon,
supra, that all judgments of political complexion of the courts during the Japanese regime, ceased to be
valid upon the reoccupation of the islands by virtue of the principle or right of postliminium. Applying
that doctrine to the present case, the sentence which convicted the petitioner of a crime of a political
complexion must be considered as having ceased to be valid ipso facto upon the reoccupation or
liberation of the Philippines by General Douglas MacArthur.

It may not be amiss to say in this connection that it is not necessary and proper to invoke the
proclamation of General Douglas MacArthur declaring null and void all laws, among them Act No. 65, of
the so-called Republic of the Philippines under which petitioner was convicted, in order to give
retroactive effect to the nullification of said penal act and invalidate sentence rendered against
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-6 November 29, 1945
ANICETO ALCANTARA, petitioner,
vs.
DIRECTOR OF PRISONS, respondent.
Buenaventura B. Martinez for petitioner.
Office of the Solicitor General Taada for respondent.
FERIA, J.:
This is a petition for the issuance of a writ of habeas corpus and for the release of the petitioner on the
ground that the latter is unlawfully imprisoned and restrained of his liberty by the respondent Director of
Prison in the provincial jail at Vigan, Ilocos Sur.
Petitioner was convicted by the Court First Instance of Ilocos Sur (Criminal case No. 23) of the crime of
illegal discharge of firearms with less serious physical injuries. Upon appeal, the Court of Appeals of
Northern Luzon at Baguio modified said sentence (CA- G.R. No. 790)and sentence the petitioner to an
indeterminate penalty of from four months four months and twenty-one days of arresto mayor to three
years, nine months and three days ofprison correccional. The sentence as modified became final on
September 12, 1944, and June 23, 1945, petitioner commenced serving his sentence.
Petitioner now questions the validity of the decision of the Court of Appeals of Northern Luzon, on the
sole ground that said court was only a creation of the so-called Republic of the Philippines during the
Japanese military occupation of the Islands; that the Court of Appeals was not authorized by
Commonwealth Act No. 3 to hold sessions in Baguio, and that only the two Justices constituted the
majority which promulgated the decision in question. The petitioner does not question the validity of
said decision on the strength of the Proclamation of General Douglas McArthur of October 23, 1944,
which according to our decision in the case of Co Kim Cham vs. Valdez Tan Keh and Dizon, G.R. No. L-5 (p.
113, ante), does not refer to judicial processes.
In the said case of Co Kim Cham vs. Valdez Tan Keh and Dizon, this Court ruled that the so-called Republic
of the Philippines and the Philippine Executive Commission established in the Philippines during the
Japanese regime were governments de facto organized by the belligerent occupant by the judicial acts
thereof were good and valid and remained good and valid after the restoration of the Commonwealth
Government, except those a political complexion. In that the same case this Court held that the Court of
Appeals which was continued throughout the Japanese occupation, was the same Court of Appeals
existed prior to the Japanese occupation and was lately abolished by Executive Order No. 37. The
division of the Court of Appeals into several District Court of Appeals, and the reduction of the number
of Justices sitting in each division, the regime of the so-called Republic effected no substantial change in
its nature and jurisdiction.
Even assuming that the Court of Appeals of Northern Luzon was a new court created by the belligerent
occupant or the de facto governments established by him, the judgments of such court, like those of the
court which were continued during the Japanese occupation, were good and valid and remain good and
valid, and therefore enforceable now after the liberation or occupation of the Philippines, provided that
such judgments do not have a political complexion, as this court held in its decision in the
abovementioned case of Co Kim Cham vs. Valdez Tan Keh and Dizon supra, in accordance with the
authorities therein cited.
Obviously, the sentence which petitioner is now serving has no political complexion. He was charged
with and convicted of an offense punishable under the municipal law of the Commonwealth, the Revised
Penal Code. Therefore, the sentence of the Court of First Instance of Ilocos Sur, as modified by the Court
of Appeals of Northern Luzon, is valid and enforceable.
A punitive or penal sentence is said to of a political complexion when it penalizes either a new act not
defined in the municipal laws, or acts already penalized by the latter as a crime against the legitimate
government, but taken out of the territorial law and penalized as a new offenses committed against
belligerent occupant, incident to a state of a war and necessary for the control of the occupied territory
and the protection of the army of the occupier. They are acts penalized for public rather than private
reasons, acts which tend, directly or indirectly, to aid or favor the enemy and are directed against the
welfare, safety and security, of the belligerent occupant. As example, the crimes against national security
, such as treason, espionage, etc., and against public order, such as rebellion, sedition, etc., were crimes
against the Commonwealth or United States Government under the Revised Penal Code, which were
made crimes against the belligerent occupant.
In view of the foregoing, the petitioner for the writ of habeas corpus is denied.
Moran, C.J., Ozaeta, Paras, Jaranilla, Pablo and Bengzon, JJ., concur.
Separate Opinions
DE JOYA, J., concurring:
The principal question involved in this habeas corpus case is the validity of the judicial proceedings held,
during the Japanese occupation, in the Court First Instance of Ilocos Sur, in which herein petitioner was
accused of frustrated murder, and in the Court of Appeals of Northern Luzon, in which, on appeal, said
petitioner was found guilty of illegal discharge of firearms with less serious physical injuries, and
sentenced to a term of imprisonment ranging from four moths and twenty-one days of arresto mayor to
three years, and nine months and three days ofprison correccional; and the effect on said proceedings of
the proclamation of General Douglas McArthur, dated October 24 1944. The decision of this questions
requires the application of principles of International Law, in connection with the municipal law of this
country.
Under the Constitution Commonwealth of the Philippines, International Law is part of the Fundamental
law of the land (Article II, sec. 3). As International Law is an integral part of our law, it must be
ascertained and administered by this Court, whenever question of right depending upon it are presented
for our determination (Kansas vs.Colorado, 185 U.S. 146; 22 Sup. Ct., 552; 46 Law. ed., 838).
Since International Law is a body of rules accepted by nations as regulating their mutual relations, the
proof of their existence is to be found in the consent of the nations to abide by them; and this consent is
evidenced chiefly by the usages and customs of nation, as found in the writings of publicist and in the
decisions of the highest courts of the different countries of the world (The Habana, 175 U. S., 677; 20
Sup. Ct., 290; 44 Law. ed., 320.).
But while usages and customs are the older original source of International Law, great international
treaties are a latter source of increasing importance, such as The Hogue Conventions of 1899 and 1907.
The Hague Conventions of 1899, respecting laws and customs of war on land, expressly declare that:
ARTICLE XLII. Territory is considered occupied when it is actually placed under the authority of
the hostile army.
The occupation applies only to the territory where such authority is established, and in a
position to assert itself.
ART. XLII. The authority of the legitimate power having actually passed into the hands of the
occupant, the latter shall take all steps in his power to reestablish and insure, as far as
possible, public order and safety, while respecting, unless absolutely prevented, the laws in
force in the country. (32 Stat., II, 1821.).
The above provisions of the Hague Conventions have been adopted by the nations giving adherence to
them, among which is the United States of America (32 Stat., II, 1821).
The commander in chief of the invading forces or military occupant may exercise governmental
authority, but only when in actual possession of the enemy's territory, and this authority will be
exercised upon principles of International Law (New Orleans vs. Steamship Co. [1874], 20 Wall., 387;
Kelly vs. Sanders [1878], 99 U.S., 441; MacLeod vs. United States 229 U.S. 416; 33 Sup Ct., 955; 57 Law.
ed., 1260; II Oppenheim on International Law, sec. 167).
It will thus be readily seen that the civil laws of the invaded state continue in force, in so far as they do
not affect the hostile occupant unfavorably. The regular judicial tribunals of the occupied territory
continue to act in cases not affecting the military occupation, and is not usual for the invader to take the
whole administration into his own hands, because it is easier to preserve order through the agency of
the native officials, and also because the latter are more competent to administer the laws of the
territory; and the military occupant generally keeps in their posts such of the judicial and administrative
officers as are willing to serve under him, subjecting them only to supervision by the military authorities,
or by superior civil authorities appointed by him (Young vs. United States, 97 U.S. 39; 24 Law. ed 992;
Coleman vs. Tennessee, 97 U.S. 509; 24 Law ed., 1118; MacLeod vs. United States, 229 U.S. 416; 33 Sup
Ct., 955; 57 Law. ed., 1260 Taylor, International Law, secs. 576, 578; Wilson, International Law, pp. 331-
337; Hall, International Law, 6th ed. [1909], pp. 464, 465, 475, 476; Lawrence, International Law, 7th ed.,
412, 413; Davis, Elements of International Law, 3d ed., pp. 330-332, 335; Holland, International Law, pp.
356, 357, 359; Westlake, International Law, Part II, 2d ed., pp. 121-123).
In 1811, during the occupation of Catalonia, Spain, by the French army, a Frenchman, accused of the
murder of a Catalan in that province, was tried and convicted by the assize Court of the Department of
the Pyrenees Orientales, France. Upon appeal to the French Court of Cassation, the conviction was
quashed, on the ground that the courts of the territory within which the crime had been committed had
exclusive jurisdiction to try the case and that "the occupation of Catalonia by French troops and its
government by the French authorities had not communicated to its inhabitants the character of French
citizens, nor to their territory the character of French territory, and that such character could only be
acquired by a solemn act of incorporation which had not been gone through." (Hall, International Law,
6th ed., p. 461.)
It is, therefore, evident that the establishment of the government under the name of the Philippine
Executive Commission, or the so-called Philippine Republic, afterwards, during Japanese occupation,
respecting the laws in force in the country, and permitting our courts to function and administer said
laws, as proclaim in the City of Manila, by the commander in chief of the Japanese Imperial Forces, on
January 3, 1942, was in accordance with the rules and principles of International Law.
If the military occupant is thus in duty bound to establish in the territory under military occupation
governmental agencies for the preservation of peace and order and for the proper administration of
justice, in accordance with the local laws, it must necessarily follow that the judicial proceeding
conducted before the courts established by the military occupant must be considered legal and valid,
even after said government established by the military occupant had been displaced by the legitimate
government of the territory.
Thus the judgments rendered by the Confederate Courts, during the American Civil War, merely setting
the rights of private parties actually within their jurisdiction, not only tending to defeat the legal rights of
citizens of the United States, nor in furtherance of laws passed in aid of the rebellion, had been declared
valid and binding (Cook vs.Oliver, 1 Woods, 437; Fed. Cas., No. 3, 164; Coleman vs. Tennessee, 97 U.S.,
509;24 Law. ed., 1118; Williams vs.Bruffy, 96 U.S. 176; Horn vs. Lockhart, 17 Wall., 570; Sprott vs. United
States, 20 Wall., 459; Texas vs. White, 7 Wall., 700; Ketchum vs. Buckley [1878], 99 U.S., 188); and the
judgment of a court of Georgia rendered in November, 1861, for the purchase money slaves was held
valid judgment when entered, and enforceable in 1871 (French vs. Tumllin, 10 Am. Law. Reg. [N.S.], 641;
Fed. Case, No. 5104).
The judgments by the courts of the states constituting the Confederate States of the America were
considered legal and valid and enforceable, even after the termination of the American Civil War,
because they had been rendered by the courts of a de facto government. The Confederate States were
a de facto government, in the sense that its citizens were bound to render the government obedience in
civil matters, and did not become responsible, as wrong-doers, for such act of obedience
(Thorington vs. Smith, 8 Wall. [U.S.] 9; 19 Law ed., 361).
In the more recent case of Ketchum vs. Buckley ([1878], 99 U.S., 188), the Supreme Court of the United
States held-- "It is now settled law in this court that during the late civil war the same general law for the
administration of justice and the protection of private rights, which had existed in the States prior to the
rebellion, remained during its continuance and afterwards. As far as the acts of the States did not impair
or tend to impair the supremacy of the national authority, or the just rights of the citizens, under the
Constitution, they are in general to be treated as valid and binding." (Williams vs. Bruffy, 96 U.S., 176;
Horn vs. Lockhart, 17 Wall., 570; Sprott vs. United States, 20 Wall., 459; Texas vs. White 7 Wall., 700.)
The government established in the Philippines, during Japanese occupation, would seem to fall under
the following definition of de facto government given by the Supreme Court of the United States:
But there is another description of government de facto, called also by publicists a
government de facto, but which might, perhaps, he more aptly denominated a government of
paramount force. Its distinguishing characteristics (1) that its existence is maintained by
active military power within the territories, and against the rightful authority of an
established and lawful government; and (2) that while it exists it must necessarily be obeyed
in civil matters by private citizens who by acts of obedience rendered in submission to such
force, do not become responsible, as wrongdoers, for those acts though not warranted by the
laws of the rightful government. Actual governments of this sort are established over districts
 differing greatly in extent and conditions. They are usually administered directly by military judicial proceedings conducted before our courts, during the Japanese occupation would be highly
authority, but they may be administered, also, by civil authority, supported more or less detrimental to public interests.
directly by military force. (MacLeod vs. United States [1913], 229 U.S., 416.)
For the forgoing reasons, I concur in the majority opinion, and the petition for habeas corpus filed in this
The government established in the Philippines, under the Philippine Executive Commission or under the case should, therefore, be denied.
so-called Philippine Republic, during Japanese occupation, was and should, therefor, be considered as
a de factogovernment; and that the judicial proceedings conducted before the courts has been
established in this country, during said Japanese occupation, and are should be considered as legal and
valid enforceable, even after the liberation of this country by the American forces, as a long a said
judicial proceedings had been conducted, in accordance with the law of the Commonwealth of the
Philippines.

The judicial proceedings involved in the case under consideration merely refer to the prosecution of the
petitioner in this case, for the crime of frustrated murder, which was reduced to illegal discharge of
firearms with less serious physical injuries, under the provisions of the Revised Penal Code, in force in
this country under the Commonwealth government, before and during Japanese occupation.

Now, petitioner contends that the judicial proceedings in question are null and void, and that the
accused should be immediately released from the custody, under the provisions of the proclamation
issued by General Douglas McArthur dated October 23, 1944; as said proclamation nullifies all the laws,
regulations and processes of any other government in the Philippines than that of the Commonwealth of
the Philippines.

In other words petition demands a literal interpretation of said proclamation issued by the General
Douglas McArthur, a contention which, in our opinion, is untenable, as it would inevitably produce
judicial chaos and uncertainties. When an act is susceptible of two or more constructions, one of which
will maintain and the others destroy it, the Courts will always adopt the former (United
States vs. Coombs [1838]], 12 Pet., 72; 9 Law. ed., 1004; Board of Supervisors of Grenada
County vs. Brown [1884], 112 U.S., 261; 28 Law. ed., 704; 5 Sup. Ct. Rep., 125; In re Guaria [1913], 24
Phil., 37; Fuentes vs. Director of Prisons [1924], 46 Phil., 22; Yu Cong Eng vs.Trinidad [1925], 47 Phil.,
385). The judiciary, always alive to the dictates of national welfare, can properly incline the scales of its
decisions in favor of that solution which will most effectively promote the public policy (Smith, Bell &
Co., Ltd. vs. Natividad [1919], 40 Phil., 136). All laws should receive a sensible construction as not to lead
it injustice, oppression or an absurd consequence. It will always, therefore, be presumed that the
legislature intended exception to its language, which would avoid results of this character. The reason of
the law in such cases should prevail over its letter (United States vs. Kirby, 7 Wall [U.S.], 482; 19 Law. ed,
278; Church of Holy Trinity vs. United States, 143 U.S., 461; 12 Sup. Ct., 511; 36 Law. ed., 226;
Jacobson vs. Massachussetts, 197 U.S., 39; 25 Sup. Ct., 358; 49 Law. ed., 643; 3 Ann. Cas., 765; In re Allen,
2 Phil., 630). The duty of the court in construing a statute, which is reasonably susceptible of two
constructions to adopt that which saves its constitutionality, includes the duty of a avoiding a
construction which raises grave and doubtful constitutional questions, if it can be avoided (United
States vs. Delaware & Hudson Co., 213 U.S., 366; 29 Sup. Ct. 527; 53 Law. ed., 836).

According to the rules and principles of International Law, and the legal doctrines cited above, the
judicial proceedings conducted before the court of the justice, established here during Japanese military
occupation, merely applying the provisions of the municipal law of the territory, as the provisions of the
Revised Penal Code in the instant case which have no political or military significance, are and should be
considered legal, valid and binding. It is to be presumed that General Douglas McArthur knows said rules
and principles of International Law, as International Law is an integral part of the fundamental law of the
land, in accordance with the provisions of the Constitution of the United States. And it is also to be
presumed that General Douglas McArthur has acted, in accordance with said principles of International
Law, which have been sanction by the Supreme Court of the United States, as the nullification of all
Republic of the Philippines 3. Certification, dated 12 October 1998, also issued by Elizabeth B. Cerezo,
SUPREME COURT showing that Ching was elected as a member of the Sangguniang Bayan of Tubao,
Manila La Union during the 12 May 1992 synchronized elections.

EN BANC On 5 April 1999, the results of the 1998 Bar Examinations were released and Ching was one of the
successful Bar examinees. The oath-taking of the successful Bar examinees was scheduled on 5 May
1999. However, because of the questionable status of Ching's citizenship, he was not allowed to take his
oath. Pursuant to the resolution of this Court, dated 20 April 1999, he was required to submit further
proof of his citizenship. In the same resolution, the Office of the Solicitor General (OSG) was required to
BAR MATTER No. 914 October 1, 1999 file a comment on Ching's petition for admission to the bar and on the documents evidencing his
Philippine citizenship.
RE: APPLICATION FOR ADMISSION TO THE PHILIPPINE BAR,
The OSG filed its comment on 8 July 1999, stating that Ching, being the "legitimate child of a Chinese
vs. father and a Filipino mother born under the 1935 Constitution was a Chinese citizen and continued to be
so, unless upon reaching the age of majority he elected Philippine citizenship" 1 in strict compliance with
the provisions of Commonwealth Act No. 625 entitled "An Act Providing for the Manner in which the
VICENTE D. CHING, applicant. Option to Elect Philippine Citizenship shall be Declared by a Person Whose Mother is a Filipino Citizen."
The OSG adds that "(w)hat he acquired at best was only an inchoate Philippine citizenship which he
RESOLUTION could perfect by election upon reaching the age of majority." 2 In this regard, the OSG clarifies that "two
(2) conditions must concur in order that the election of Philippine citizenship may be effective, namely:
(a) the mother of the person making the election must be a citizen of the Philippines; and (b) said
election must be made upon reaching the age of majority." 3 The OSG then explains the meaning of the
phrase "upon reaching the age of majority:"
KAPUNAN, J.:
The clause "upon reaching the age of majority" has been construed to mean a
Can a legitimate child born under the 1935 Constitution of a Filipino mother and an alien father validly reasonable time after reaching the age of majority which had been interpreted by
elect Philippine citizenship fourteen (14) years after he has reached the age of majority? This is the the Secretary of Justice to be three (3) years (VELAYO, supra at p. 51 citing Op.,
question sought to be resolved in the present case involving the application for admission to the Sec. of Justice No. 70, s. 1940, Feb. 27, 1940). Said period may be extended under
Philippine Bar of Vicente D. Ching. certain circumstances, as when a (sic) person concerned has always considered
himself a Filipino (ibid., citing Op. Nos. 355 and 422, s. 1955; 3, 12, 46, 86 and 97,
s. 1953). But in Cuenco, it was held that an election done after over seven (7) years
The facts of this case are as follows:
was not made within a reasonable time.

Vicente D. Ching, the legitimate son of the spouses Tat Ching, a Chinese citizen, and Prescila A. Dulay, a
In conclusion, the OSG points out that Ching has not formally elected Philippine citizenship and, if ever
Filipino, was born in Francia West, Tubao, La Union on 11 April 1964. Since his birth, Ching has resided in
he does, it would already be beyond the "reasonable time" allowed by present jurisprudence. However,
the Philippines.
due to the peculiar circumstances surrounding Ching's case, the OSG recommends the relaxation of the
standing rule on the construction of the phrase "reasonable period" and the allowance of Ching to elect
On 17 July 1998, Ching, after having completed a Bachelor of Laws course at the St. Louis University in Philippine citizenship in accordance with C.A. No. 625 prior to taking his oath as a member of the
Baguio City, filed an application to take the 1998 Bar Examinations. In a Resolution of this Court, dated 1 Philippine Bar.
September 1998, he was allowed to take the Bar Examinations, subject to the condition that he must
submit to the Court proof of his Philippine citizenship.
On 27 July 1999, Ching filed a Manifestation, attaching therewith his Affidavit of Election of Philippine
Citizenship and his Oath of Allegiance, both dated 15 July 1999. In his Manifestation, Ching states:
In compliance with the above resolution, Ching submitted on 18 November 1998, the following
documents:
1. I have always considered myself as a Filipino;

1. Certification, dated 9 June 1986, issued by the Board of Accountancy of the

2. I was registered as a Filipino and consistently declared myself as one in my
Professional Regulations Commission showing that Ching is a certified public
school records and other official documents;
accountant;

3. I am practicing a profession (Certified Public Accountant) reserved for Filipino

2. Voter Certification, dated 14 June 1997, issued by Elizabeth B. Cerezo, Election
citizens;
Officer of the Commission on Elections (COMELEC) in Tubao La Union showing that
Ching is a registered voter of the said place; and
 4. I participated in electoral process[es] since the time I was eligible to vote;
5. I had served the people of Tubao, La Union as a member of the Sangguniang
Bayan from 1992 to 1995;
6. I elected Philippine citizenship on July 15, 1999 in accordance with
Commonwealth Act No. 625;
7. My election was expressed in a statement signed and sworn to by me before a
notary public;
8. I accompanied my election of Philippine citizenship with the oath of allegiance
to the Constitution and the Government of the Philippines;
9. I filed my election of Philippine citizenship and my oath of allegiance to (sic) the
Civil Registrar of Tubao La Union, and
10. I paid the amount of TEN PESOS (Ps. 10.00) as filing fees.
Since Ching has already elected Philippine citizenship on 15 July 1999, the question raised is whether he
has elected Philippine citizenship within a "reasonable time." In the affirmative, whether his citizenship
by election retroacted to the time he took the bar examination.
When Ching was born in 1964, the governing charter was the 1935 Constitution. Under Article IV, Section
1(3) of the 1935 Constitution, the citizenship of a legitimate child born of a Filipino mother and an alien
father followed the citizenship of the father, unless, upon reaching the age of majority, the child elected
Philippine citizenship. 4 This right to elect Philippine citizenship was recognized in the 1973 Constitution
when it provided that "(t)hose who elect Philippine citizenship pursuant to the provisions of the
Constitution of nineteen hundred and thirty-five" are citizens of the Philippines. 5 Likewise, this
recognition by the 1973 Constitution was carried over to the 1987 Constitution which states that "(t)hose
born before January 17, 1973 of Filipino mothers, who elect Philippine citizenship upon reaching the age
of majority" are Philippine citizens. 6 It should be noted, however, that the 1973 and 1987 Constitutional
provisions on the election of Philippine citizenship should not be understood as having a curative effect
on any irregularity in the acquisition of citizenship for those covered by the 1935 Constitution. 7 If the
citizenship of a person was subject to challenge under the old charter, it remains subject to challenge
under the new charter even if the judicial challenge had not been commenced before the effectivity of
the new Constitution. 8
C.A. No. 625 which was enacted pursuant to Section 1(3), Article IV of the 1935 Constitution, prescribes
the procedure that should be followed in order to make a valid election of Philippine citizenship. Under
Section 1 thereof, legitimate children born of Filipino mothers may elect Philippine citizenship by
expressing such intention "in a statement to be signed and sworn to by the party concerned before any
officer authorized to administer oaths, and shall be filed with the nearest civil registry. The said party
shall accompany the aforesaid statement with the oath of allegiance to the Constitution and the
Government of the Philippines."
However, the 1935 Constitution and C.A. No. 625 did not prescribe a time period within which the
election of Philippine citizenship should be made. The 1935 Charter only provides that the election
should be made "upon reaching the age of majority." The age of majority then commenced upon
reaching twenty-one (21) years. 9 In the opinions of the Secretary of Justice on cases involving the
validity of election of Philippine citizenship, this dilemma was resolved by basing the time period on the
decisions of this Court prior to the effectivity of the 1935 Constitution. In these decisions, the proper
period for electing Philippine citizenship was, in turn, based on the pronouncements of the Department
of State of the United States Government to the effect that the election should be made within a
"reasonable time" after attaining the age of majority. 10 The phrase "reasonable time" has been
interpreted to mean that the election should be made within three (3) years from reaching the age of
majority. 11 However, we held in Cuenco vs. Secretary of Justice, 12 that the three (3) year period is not an
inflexible rule. We said:
It is true that this clause has been construed to mean a reasonable period after
reaching the age of majority, and that the Secretary of Justice has ruled that three
(3) years is the reasonable time to elect Philippine citizenship under the
constitutional provision adverted to above, which period may be extended under
certain circumstances, as when the person concerned has always considered
himself a Filipino. 13
However, we cautioned in Cuenco that the extension of the option to elect Philippine citizenship is not
indefinite:
Regardless of the foregoing, petitioner was born on February 16, 1923. He became
of age on February 16, 1944. His election of citizenship was made on May 15,
1951, when he was over twenty-eight (28) years of age, or over seven (7) years
after he had reached the age of majority. It is clear that said election has not been
made "upon reaching the age of majority." 14
In the present case, Ching, having been born on 11 April 1964, was already thirty-five (35) years old
when he complied with the requirements of C.A. No. 625 on 15 June 1999, or over fourteen (14) years
after he had reached the age of majority. Based on the interpretation of the phrase "upon reaching the
age of majority," Ching's election was clearly beyond, by any reasonable yardstick, the allowable period
within which to exercise the privilege. It should be stated, in this connection, that the special
circumstances invoked by Ching, i.e., his continuous and uninterrupted stay in the Philippines and his
being a certified public accountant, a registered voter and a former elected public official, cannot vest in
him Philippine citizenship as the law specifically lays down the requirements for acquisition of Philippine
citizenship by election.
Definitely, the so-called special circumstances cannot constitute what Ching erroneously labels as
informal election of citizenship. Ching cannot find a refuge in the case of In re:Florencio Mallare, 15 the
pertinent portion of which reads:
And even assuming arguendo that Ana Mallare were (sic) legally married to an
alien, Esteban's exercise of the right of suffrage when he came of age, constitutes
a positive act of election of Philippine citizenship. It has been established that
Esteban Mallare was a registered voter as of April 14, 1928, and that as early as
1925 (when he was about 22 years old), Esteban was already participating in the
elections and campaigning for certain candidate[s]. These acts are sufficient to
show his preference for Philippine citizenship. 16
Ching's reliance on Mallare is misplaced. The facts and circumstances obtaining therein are very different
from those in the present case, thus, negating its applicability. First, Esteban Mallare was born before
the effectivity of the 1935 Constitution and the enactment of C.A. No. 625. Hence, the requirements and
procedures prescribed under the 1935 Constitution and C.A. No. 625 for electing Philippine citizenship
would not be applicable to him. Second, the ruling in Mallare was an obiter since, as correctly pointed
out by the OSG, it was not necessary for Esteban Mallare to elect Philippine citizenship because he was
already a Filipino, he being a natural child of a Filipino mother. In this regard, the Court stated:
Esteban Mallare, natural child of Ana Mallare, a Filipina, is therefore himself a
Filipino, and no other act would be necessary to confer on him all the rights and
privileges attached to Philippine citizenship (U.S. vs. Ong Tianse, 29 Phil. 332;
Santos Co vs. Government of the Philippine Islands, 42 Phil. 543, Serra vs. Republic,
L-4223, May 12, 1952, Sy Quimsuan vs. Republic, L-4693, Feb. 16, 1953; Pitallano
vs. Republic, L-5111, June 28, 1954). Neither could any act be taken on the
erroneous belief that he is a non-filipino divest him of the citizenship privileges to
which he is rightfully entitled. 17
The ruling in Mallare was reiterated and further elaborated in Co vs. Electoral Tribunal of the House of
Representatives, 18 where we held:
We have jurisprudence that defines "election" as both a formal and an informal
process.
In the case of In re: Florencio Mallare (59 SCRA 45 [1974]), the Court held that the
exercise of the right of suffrage and the participation in election exercises
constitute a positive act of election of Philippine citizenship. In the exact
pronouncement of the Court, we held:
Esteban's exercise of the right of suffrage when he came of
age constitutes a positive act of Philippine citizenship. (p. 52:
emphasis supplied)
We repeat that any election of Philippine citizenship on the part of the private
respondent would not only have been superfluous but it would also have resulted
in an absurdity. How can a Filipino citizen elect Philippine citizenship? 19
The Court, like the OSG, is sympathetic with the plight of Ching. However, even if we consider the special
circumstances in the life of Ching like his having lived in the Philippines all his life and his consistent
belief that he is a Filipino, controlling statutes and jurisprudence constrain us to disagree with the
recommendation of the OSG. Consequently, we hold that Ching failed to validly elect Philippine
citizenship. The span of fourteen (14) years that lapsed from the time he reached the age of majority
until he finally expressed his intention to elect Philippine citizenship is clearly way beyond the
contemplation of the requirement of electing "upon reaching the age of majority." Moreover, Ching has
offered no reason why he delayed his election of Philippine citizenship. The prescribed procedure in
electing Philippine citizenship is certainly not a tedious and painstaking process. All that is required of
the elector is to execute an affidavit of election of Philippine citizenship and, thereafter, file the same
with the nearest civil registry. Ching's unreasonable and unexplained delay in making his election cannot
be simply glossed over.
Philippine citizenship can never be treated like a commodity that can be claimed when needed and
suppressed when convenient. 20 One who is privileged to elect Philippine citizenship has only an inchoate
right to such citizenship. As such, he should avail of the right with fervor, enthusiasm and promptitude.
Sadly, in this case, Ching slept on his opportunity to elect Philippine citizenship and, as a result. this
golden privilege slipped away from his grasp.
IN VIEW OF THE FOREGOING, the Court Resolves to DENY Vicente D. Ching's application for admission to
the Philippine Bar.
SO ORDERED.

The private respondent did more than merely exercise his right of suffrage. He has established his life
here in the Philippines.

For those in the peculiar situation of the respondent who cannot be excepted to
have elected Philippine citizenship as they were already citizens, we apply the In Re
Mallare rule.

xxx xxx xxx

The filing of sworn statement or formal declaration is a requirement for those who
still have to elect citizenship. For those already Filipinos when the time to elect
came up, there are acts of deliberate choice which cannot be less binding. Entering
a profession open only to Filipinos, serving in public office where citizenship is a
qualification, voting during election time, running for public office, and other
categorical acts of similar nature are themselves formal manifestations for these
persons.

An election of Philippine citizenship presupposes that the person electing is an

alien. Or his status is doubtful because he is a national of two countries. There is
no doubt in this case about Mr. Ong's being a Filipino when he turned twenty-one
(21).
Republic of the Philippines 2) Jose Ong, Jr. is not a resident of the second district of Northern Samar.
SUPREME COURT
Manila
The HRET in its decision dated November 6, 1989, found for the private respondent.

EN BANC
A motion for reconsideration was filed by the petitioners on November 12, 1989. This was, however,
denied by the HRET in its resolution dated February 22, 1989.

Hence, these petitions for certiorari.

G.R. Nos. 92191-92 July 30, 1991
We treat the comments as answers and decide the issues raised in the petitions.
ANTONIO Y. CO, petitioner,
vs.
ON THE ISSUE OF JURISDICTION
ELECTORAL TRIBUNAL OF THE HOUSE OF REPRESENTATIVES AND JOSE ONG, JR., respondents.

The first question which arises refers to our jurisdiction.

G.R. Nos. 92202-03 July 30, 1991

The Constitution explicitly provides that the House of Representatives Electoral Tribunal (HRET) and the
SIXTO T. BALANQUIT, JR., petitioner,
Senate Electoral Tribunal (SET) shall be the sole judges of all contests relating to the election, returns,
vs.
and qualificationsof their respective members. (See Article VI, Section 17, Constitution)
ELECTORAL TRIBUNAL OF THE HOUSE OF REPRESENTATIVES AND JOSE ONG, JR., respondents.

The authority conferred upon the Electoral Tribunal is full, clear and complete. The use of the
Hechanova & Associates for petitioner Co.
word soleemphasizes the exclusivity of the jurisdiction of these Tribunals.

Brillantes, Nachura, Navarro and Arcilla Law Offices for respondent Ong, Jr.
The Supreme Court in the case of Lazatin v. HRET (168 SCRA 391 [1988]) stated that under the 1987
Constitution, the jurisdiction of the Electoral Tribunal is original and exclusive, viz:

GUTIERREZ, JR., J.:p
The petitioners come to this Court asking for the setting aside and reversal of a decision of the House of
Representatives Electoral Tribunal (HRET).
The HRET declared that respondent Jose Ong, Jr. is a natural born Filipino citizen and a resident of
Laoang, Northern Samar for voting purposes. The sole issue before us is whether or not, in making that
determination, the HRET acted with grave abuse of discretion.
On May 11, 1987, the congressional election for the second district of Northern Samar was held.
The use of the word "sole" emphasizes the exclusive character of the jurisdiction
conferred (Angara v. Electoral Commission, supra at p. 162). The exercise of power
by the Electoral Commission under the 1935 Constitution has been described as
"intended to be as complete and unimpaired as if it had originally remained in the
legislature." (id., at p. 175) Earlier this grant of power to the legislature was
characterized by Justice Malcolm as "full, clear and complete; (Veloso v. Board of
Canvassers of Leyte and Samar, 39 Phil. 886 [1919]) Under the amended 1935
Constitution, the power was unqualifiedly reposed upon the Electoral Tribunal and
it remained as full, clear and complete as that previously granted the Legislature
and the Electoral Commission, (Lachica v. Yap, 25 SCRA 140 [1968]) The same may
be said with regard to the jurisdiction of the Electoral Tribunal under the 1987
Constitution. (p. 401)

Among the candidates who vied for the position of representative in the second legislative district of
Northern Samar are the petitioners, Sixto Balinquit and Antonio Co and the private respondent, Jose
Ong, Jr.
Respondent Ong was proclaimed the duly elected representative of the second district of Northern
Samar.
The Court continued further, ". . . so long as the Constitution grants the HRET the power to be the sole
judge of all contests relating to election, returns and qualifications of members of the House of
Representatives, any final action taken by the HRET on a matter within its jurisdiction shall, as a rule, not
be reviewed by this Court . . . the power granted to the Electoral Tribunal is full, clear and complete and
excludes the exercise of any authority on the part of this Court that would in any wise restrict it or curtail
it or even affect the same." (pp. 403-404)

When may the Court inquire into acts of the Electoral Tribunals under our constitutional grants of
The petitioners filed election protests against the private respondent premised on the following grounds: power?

1) Jose Ong, Jr. is not a natural born citizen of the Philippines; and
In the later case of Robles v. HRET (181 SCRA 780 [1990]) the Supreme Court stated that the judgments
of the Tribunal are beyond judicial interference save only "in the exercise of this Court's so-called
extraordinary jurisdiction, . . . upon a determination that the Tribunal's decision or resolution was
rendered without or in excess of its jurisdiction, or with grave abuse of discretion or paraphrasing
Morrero, upon a clear showing of such arbitrary and improvident use by the Tribunal of its power as
constitutes a denial of due process of law, or upon a demonstration of a very clear unmitigated ERROR,
manifestly constituting such GRAVE ABUSE OF DISCRETION that there has to be a remedy for such
abuse." (at pp. 785-786)
In the leading case of Morrero v. Bocar (66 Phil. 429 [1938]) the Court ruled that the power of the
Electoral Commission "is beyond judicial interference except, in any event, upon a clear showing of such
arbitrary and improvident use of power as will constitute a denial of due process." The Court does not
venture into the perilous area of trying to correct perceived errors of independent branches of the
Government, It comes in only when it has to vindicate a denial of due process or correct an abuse of
discretion so grave or glaring that no less than the Constitution calls for remedial action.
The Supreme Court under the 1987 Constitution, has been given an expanded jurisdiction, so to speak,
to review the decisions of the other branches and agencies of the government to determine whether or
not they have acted within the bounds of the Constitution. (See Article VIII, Section 1, Constitution)
Yet, in the exercise thereof, the Court is to merely check whether or not the governmental branch or
agency has gone beyond the Constitutional limits of its jurisdiction, not that it erred or has a different
view. In the absence of a showing that the HRET has committed grave abuse of discretion amounting to
lack of jurisdiction, there is no occasion for the Court to exercise its corrective power; it will not decide a
matter which by its nature is for the HRET alone to decide. (See Marcos v. Manglapus, 177 SCRA 668
[1989]) It has no power to look into what it thinks is apparent error.
As constitutional creations invested with necessary power, the Electoral Tribunals, although not powers
in the tripartite scheme of the government, are, in the exercise of their functions independent organs
independent of Congress and the Supreme Court. The power granted to HRET by the Constitution is
intended to be as complete and unimpaired as if it had remained originally in the legislature. (Angara v.
Electoral Commission, 63 Phil. 139 [1936])
In passing upon petitions, the Court with its traditional and careful regard for the balance of powers,
must permit this exclusive privilege of the Tribunals to remain where the Sovereign authority has place
it. (See Veloso v. Boards of Canvassers of Leyte and Samar, 39 Phil. 886 [1919])
It has been argued that under Article VI, Section 17 of the present Constitution, the situation may exist
as it exists today where there is an unhealthy one-sided political composition of the two Electoral
Tribunals. There is nothing in the Constitution, however, that makes the HRET because of its composition
any less independent from the Court or its constitutional functions any less exclusive. The degree of
judicial intervention should not be made to depend on how many legislative members of the HRET
belong to this party or that party. The test remains the same-manifest grave abuse of discretion.
In the case at bar, the Court finds no improvident use of power, no denial of due process on the part of
the HRET which will necessitate the exercise of the power of judicial review by the Supreme Court.
ON THE ISSUE OF CITIZENSHIP
The records show that in the year 1895, the private respondent's grandfather, Ong Te, arrived in the
Philippines from China. Ong Te established his residence in the municipality of Laoang, Samar on land
which he bought from the fruits of hard work.
As a resident of Laoang, Ong Te was able to obtain a certificate of residence from the then Spanish
colonial administration.
The father of the private respondent, Jose Ong Chuan was born in China in 1905. He was brought by Ong
Te to Samar in the year 1915.
Jose Ong Chuan spent his childhood in the province of Samar. In Laoang, he was able to establish an
enduring relationship with his neighbors, resulting in his easy assimilation into the community.
As Jose Ong Chuan grew older in the rural and seaside community of Laoang, he absorbed Filipino
cultural values and practices. He was baptized into Christianity. As the years passed, Jose Ong Chuan met
a natural born-Filipino, Agripina Lao. The two fell in love and, thereafter, got married in 1932 according
to Catholic faith and practice.
The couple bore eight children, one of whom is the private respondent who was born in 1948.
The private respondent's father never emigrated from this country. He decided to put up a hardware
store and shared and survived the vicissitudes of life in Samar.
The business prospered. Expansion became inevitable. As a result, a branch was set-up in Binondo,
Manila. In the meantime, the father of the private respondent, unsure of his legal status and in an
unequivocal affirmation of where he cast his life and family, filed with the Court of First Instance of
Samar an application for naturalization on February 15, 1954.
On April 28, 1955, the CFI of Samar, after trial, declared Jose Ong Chuan a Filipino citizen.
On May 15, 1957, the Court of First Instance of Samar issued an order declaring the decision of April 28,
1955 as final and executory and that Jose Ong Chuan may already take his Oath of Allegiance.
Pursuant to said order, Jose Ong Chuan took his Oath of Allegiance; correspondingly, a certificate of
naturalization was issued to him.
At the time Jose Ong Chuan took his oath, the private respondent then a minor of nine years was
finishing his elementary education in the province of Samar. There is nothing in the records to
differentiate him from other Filipinos insofar as the customs and practices of the local populace were
concerned.
Fortunes changed. The house of the family of the private respondent in Laoang, Samar was burned to
the ground.
Undaunted by the catastrophe, the private respondent's family constructed another one in place of their
ruined house. Again, there is no showing other than that Laoang was their abode and home.
After completing his elementary education, the private respondent, in search for better education, went
to Manila in order to acquire his secondary and college education.
In the meantime, another misfortune was suffered by the family in 1975 when a fire gutted their second
house in Laoang, Samar. The respondent's family constructed still another house, this time a 16-door
apartment building, two doors of which were reserved for the family.
The private respondent graduated from college, and thereafter took and passed the CPA Board
Examinations.
Since employment opportunities were better in Manila, the respondent looked for work here. He found
a job in the Central Bank of the Philippines as an examiner. Later, however, he worked in the hardware
business of his family in Manila. In 1971, his elder brother, Emil, was elected as a delegate to the 1971
Constitutional Convention. His status as a natural born citizen was challenged. Parenthetically, the
Convention which in drafting the Constitution removed the unequal treatment given to derived
citizenship on the basis of the mother's citizenship formally and solemnly declared Emil Ong,
respondent's full brother, as a natural born Filipino. The Constitutional Convention had to be aware of
the meaning of natural born citizenship since it was precisely amending the article on this subject.
The private respondent frequently went home to Laoang, Samar, where he grew up and spent his
childhood days.
In 1984, the private respondent married a Filipina named Desiree Lim.
For the elections of 1984 and 1986, Jose Ong, Jr. registered himself as a voter of Laoang, Samar, and
correspondingly, voted there during those elections.
The private respondent after being engaged for several years in the management of their family business
decided to be of greater service to his province and ran for public office. Hence, when the opportunity
came in 1987, he ran in the elections for representative in the second district of Northern Samar.
Mr. Ong was overwhelmingly voted by the people of Northern Samar as their representative in Congress.
Even if the total votes of the two petitioners are combined, Ong would still lead the two by more than
7,000 votes.
The pertinent portions of the Constitution found in Article IV read:
SECTION 1, the following are citizens of the Philippines:
1. Those who are citizens of the Philippines at the time of the adoption of the
Constitution;
2. Those whose fathers or mothers are citizens of the Philippines;
3. Those born before January 17, 1973, of Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority; and
4. Those who are naturalized in accordance with law.
SECTION 2, Natural-born Citizens are those who are citizens of the Philippines from
birth without having to perform any act to acquire or perfect their citizenship.
Those who elect Philippine citizenship in accordance with paragraph 3 hereof shall
be deemed natural-born citizens.
The Court interprets Section 1, Paragraph 3 above as applying not only to those who elect Philippine
citizenship after February 2, 1987 but also to those who, having been born of Filipino mothers, elected
citizenship before that date.
The provision in Paragraph 3 was intended to correct an unfair position which discriminates against
Filipino women. There is no ambiguity in the deliberations of the Constitutional Commission, viz:
Mr. Azcuna: With respect to the provision of section 4,
would this refer only to those who elect Philippine
citizenship after the effectivity of the 1973 Constitution or
would it also cover those who elected it under the 1973
Constitution?
Fr. Bernas: It would apply to anybody who elected Philippine
citizenship by virtue of the provision of the 1935 Constitution
whether the election was done before or after January 17,
1973. (Records of the Constitutional Commission, Vol. 1, p.
228; Emphasis supplied)
xxx xxx xxx
Mr. Trenas: The Committee on Citizenship, Bill of Rights,
Political Rights and Obligations and Human Rights has more
or less decided to extend the interpretation of who is a
natural-born citizen as provided in section 4 of the 1973
Constitution by adding that persons who have elected
Philippine Citizenship under the 1935 Constitution shall be
natural-born? Am I right Mr. Presiding Officer?
Fr. Bernas: yes.
xxx xxx xxx
Mr. Nolledo: And I remember very well that in the Reverend
Father Bernas' well written book, he said that the decision
was designed merely to accommodate former delegate
Ernesto Ang and that the definition on natural-born has no
retroactive effect. Now it seems that the Reverend Father
Bernas is going against this intention by supporting the
amendment?
Fr. Bernas: As the Commissioner can see, there has been an
evolution in my thinking. (Records of the Constitutional
Commission, Vol. 1, p. 189)
xxx xxx xxx
 Mr. Rodrigo: But this provision becomes very important of a Filipino mother and an alien father would still have to elect Philippine citizenship. If one so elected,
because his election of Philippine citizenship makes him not he was not, under earlier laws, conferred the status of a natural-born.
only a Filipino citizen but a natural-born Filipino citizen
entitling him to run for Congress. . .
Under the 1973 Constitution, those born of Filipino fathers and those born of Filipino mothers with an
alien father were placed on equal footing. They were both considered as natural-born citizens.
Fr. Bernas: Correct. We are quite aware of that and for that
reason we will leave it to the body to approve that provision
Hence, the bestowment of the status of "natural-born" cannot be made to depend on the fleeting
of section 4.
accident of time or result in two kinds of citizens made up of essentially the same similarly situated
members.
Mr. Rodrigo: I think there is a good basis for the provision
because it strikes me as unfair that the Filipino citizen who
It is for this reason that the amendments were enacted, that is, in order to remedy this accidental
was born a day before January 17, 1973 cannot be a Filipino
anomaly, and, therefore, treat equally all those born before the 1973 Constitution and who elected
citizen or a natural-born citizen. (Records of the
Philippine citizenship either before or after the effectivity of that Constitution.
Constitutional Commission, Vol. 1, p. 231)

xxx xxx xxx
Mr. Rodrigo: The purpose of that provision is to remedy an
inequitable situation. Between 1935 and 1973 when we
were under the 1935 Constitution, those born of Filipino
fathers but alien mothers were natural-born Filipinos.
However, those born of Filipino mothers but alien fathers
would have to elect Philippine citizenship upon reaching the
age of majority; and if they do elect, they become Filipino
citizens but not natural-born Filipino citizens. (Records of the
Constitutional Commission, Vol. 1, p. 356)
The Constitutional provision in question is, therefore curative in nature. The enactment was meant to
correct the inequitable and absurd situation which then prevailed, and thus, render those acts valid
which would have been nil at the time had it not been for the curative provisions. (See Development
Bank of the Philippines v. Court of Appeals, 96 SCRA 342 [1980])
There is no dispute that the respondent's mother was a natural born Filipina at the time of her marriage.
Crucial to this case is the issue of whether or not the respondent elected or chose to be a Filipino citizen.
Election becomes material because Section 2 of Article IV of the Constitution accords natural born status
to children born of Filipino mothers before January 17, 1973, if they elect citizenship upon reaching the
age of majority.

The foregoing significantly reveals the intent of the framers. To make the provision prospective from
February 3, 1987 is to give a narrow interpretation resulting in an inequitable situation. It must also be
retroactive.
It should be noted that in construing the law, the Courts are not always to be hedged in by the literal
meaning of its language. The spirit and intendment thereof, must prevail over the letter, especially
where adherence to the latter would result in absurdity and injustice. (Casela v. Court of Appeals, 35
SCRA 279 [1970])
A Constitutional provision should be construed so as to give it effective operation and suppress the
mischief at which it is aimed, hence, it is the spirit of the provision which should prevail over the letter
thereof. (Jarrolt v. Mabberly, 103 U.S. 580)
In the words of the Court in the case of J.M. Tuason v. LTA (31 SCRA 413 [1970]:
To that primordial intent, all else is subordinated. Our Constitution, any
constitution is not to be construed narrowly or pedantically for the prescriptions
therein contained, to paraphrase Justice Holmes, are not mathematical formulas
having their essence in their form but are organic living institutions, the
significance of which is vital not formal. . . . (p. 427)
The provision in question was enacted to correct the anomalous situation where one born of a Filipino
father and an alien mother was automatically granted the status of a natural-born citizen while one born
To expect the respondent to have formally or in writing elected citizenship when he came of age is to ask
for the unnatural and unnecessary. The reason is obvious. He was already a citizen. Not only was his
mother a natural born citizen but his father had been naturalized when the respondent was only nine (9)
years old. He could not have divined when he came of age that in 1973 and 1987 the Constitution would
be amended to require him to have filed a sworn statement in 1969 electing citizenship inspite of his
already having been a citizen since 1957. In 1969, election through a sworn statement would have been
an unusual and unnecessary procedure for one who had been a citizen since he was nine years old.
We have jurisprudence that defines "election" as both a formal and an informal process.
In the case of In Re: Florencio Mallare (59 SCRA 45 [1974]), the Court held that the exercise of the right of
suffrage and the participation in election exercises constitute a positive act of election of Philippine
citizenship. In the exact pronouncement of the Court, we held:
Esteban's exercise of the right of suffrage when he came of age, constitutes a
positive act of election of Philippine citizenship (p. 52; emphasis supplied)
The private respondent did more than merely exercise his right of suffrage. He has established his life
here in the Philippines.
For those in the peculiar situation of the respondent who cannot be expected to have elected citizenship
as they were already citizens, we apply the In Re Mallare rule.
The respondent was born in an outlying rural town of Samar where there are no alien enclaves and no citizenship of his father. The citizenship of the father is relevant only to determine whether or not the
racial distinctions. The respondent has lived the life of a Filipino since birth. His father applied for respondent "chose" to be a Filipino when he came of age. At that time and up to the present, both
naturalization when the child was still a small boy. He is a Roman Catholic. He has worked for a sensitive mother and father were Filipinos. Respondent Ong could not have elected any other citizenship unless he
government agency. His profession requires citizenship for taking the examinations and getting a license. first formally renounced Philippine citizenship in favor of a foreign nationality. Unlike other persons
He has participated in political exercises as a Filipino and has always considered himself a Filipino citizen. faced with a problem of election, there was no foreign nationality of his father which he could possibly
There is nothing in the records to show that he does not embrace Philippine customs and values, nothing have chosen.
to indicate any tinge of alien-ness no acts to show that this country is not his natural homeland. The
mass of voters of Northern Samar are frilly aware of Mr. Ong's parentage. They should know him better
There is another reason why we cannot declare the HRET as having committed manifest grave abuse of
than any member of this Court will ever know him. They voted by overwhelming numbers to have him
discretion. The same issue of natural-born citizenship has already been decided by the Constitutional
represent them in Congress. Because of his acts since childhood, they have considered him as a Filipino.
Convention of 1971 and by the Batasang Pambansa convened by authority of the Constitution drafted by
that Convention. Emil Ong, full blood brother of the respondent, was declared and accepted as a natural
The filing of sworn statement or formal declaration is a requirement for those who still have to elect born citizen by both bodies.
citizenship. For those already Filipinos when the time to elect came up, there are acts of deliberate
choice which cannot be less binding. Entering a profession open only to Filipinos, serving in public office
Assuming that our opinion is different from that of the Constitutional Convention, the Batasang
where citizenship is a qualification, voting during election time, running for public office, and other
Pambansa, and the respondent HRET, such a difference could only be characterized as error. There
categorical acts of similar nature are themselves formal manifestations of choice for these persons.
would be no basis to call the HRET decision so arbitrary and whimsical as to amount to grave abuse of
discretion.
An election of Philippine citizenship presupposes that the person electing is an alien. Or his status is
doubtful because he is a national of two countries. There is no doubt in this case about Mr. Ong's being a
What was the basis for the Constitutional Convention's declaring Emil Ong a natural born citizen?
Filipino when he turned twenty-one (21).

Under the Philippine Bill of 1902, inhabitants of the Philippines who were Spanish subjects on the 11th
We repeat that any election of Philippine citizenship on the part of the private respondent would not
day of April 1899 and then residing in said islands and their children born subsequent thereto were
only have been superfluous but it would also have resulted in an absurdity. How can a Filipino citizen
conferred the status of a Filipino citizen.
elect Philippine citizenship?

Was the grandfather of the private respondent a Spanish subject?

The respondent HRET has an interesting view as to how Mr. Ong elected citizenship. It observed that
"when protestee was only nine years of age, his father, Jose Ong Chuan became a naturalized Filipino.
Section 15 of the Revised Naturalization Act squarely applies its benefit to him for he was then a minor Article 17 of the Civil Code of Spain enumerates those who were considered Spanish Subjects, viz:
residing in this country. Concededly, it was the law itself that had already elected Philippine citizenship
for protestee by declaring him as such." (Emphasis supplied) ARTICLE 17. The following are Spaniards:

The petitioners argue that the respondent's father was not, validly, a naturalized citizen because of his 1. Persons born in Spanish territory.
premature taking of the oath of citizenship.

2. Children born of a Spanish father or mother, even though they were born out of
The Court cannot go into the collateral procedure of stripping Mr. Ong's father of his citizenship after his Spain.
death and at this very late date just so we can go after the son.

3. Foreigners who may have obtained naturalization papers.

The petitioners question the citizenship of the father through a collateral approach. This can not be
done. In our jurisdiction, an attack on a person's citizenship may only be done through a direct action for
its nullity. (See Queto v. Catolico, 31 SCRA 52 [1970]) 4. Those without such papers, who may have acquired domicile in any town in the
Monarchy. (Emphasis supplied)

To ask the Court to declare the grant of Philippine citizenship to Jose Ong Chuan as null and void would
run against the principle of due process. Jose Ong Chuan has already been laid to rest. How can he be
given a fair opportunity to defend himself. A dead man cannot speak. To quote the words of the HRET
"Ong Chuan's lips have long been muted to perpetuity by his demise and obviously he could not use
beyond where his mortal remains now lie to defend himself were this matter to be made a central issue
in this case."
The issue before us is not the nullification of the grant of citizenship to Jose Ong Chuan. Our function is
to determine whether or not the HRET committed abuse of authority in the exercise of its powers.
Moreover, the respondent traces his natural born citizenship through his mother, not through the
The domicile of a natural person is the place of his habitual residence. This domicile, once established is
considered to continue and will not be deemed lost until a new one is established. (Article 50, NCC;
Article 40, Civil Code of Spain; Zuellig v. Republic, 83 Phil. 768 [1949])
As earlier stated, Ong Te became a permanent resident of Laoang, Samar around 1895. Correspondingly,
a certificate of residence was then issued to him by virtue of his being a resident of Laoang, Samar.
(Report of the Committee on Election Protests and Credentials of the 1971 Constitutional Convention,
September 7, 1972, p. 3)
The domicile that Ong Te established in 1895 continued until April 11, 1899; it even went beyond the
turn of the 19th century. It is also in this place were Ong Te set-up his business and acquired his real
property.
As concluded by the Constitutional Convention, Ong Te falls within the meaning of sub-paragraph 4 of
Article 17 of the Civil Code of Spain.
Although Ong Te made brief visits to China, he, nevertheless, always returned to the Philippines. The fact
that he died in China, during one of his visits in said country, was of no moment. This will not change the
fact that he already had his domicile fixed in the Philippines and pursuant to the Civil Code of Spain, he
had become a Spanish subject.
If Ong Te became a Spanish subject by virtue of having established his domicile in a town under the
Monarchy of Spain, necessarily, Ong Te was also an inhabitant of the Philippines for an inhabitant has
been defined as one who has actual fixed residence in a place; one who has a domicile in a place.
(Bouvier's Law Dictionary, Vol. II) Apriori, there can be no other logical conclusion but to educe that Ong
Te qualified as a Filipino citizen under the provisions of section 4 of the Philippine Bill of 1902.
The HRET itself found this fact of absolute verity in concluding that the private respondent was a natural-
born Filipino.
The petitioners' sole ground in disputing this fact is that document presented to prove it were not in
compliance with the best the evidence rule. The petitioners allege that the private respondent failed to
present the original of the documentary evidence, testimonial evidence and of the transcript of the
proceedings of the body which the aforesaid resolution of the 1971 Constitutional Convention was
predicated.
On the contrary, the documents presented by the private respondent fall under the exceptions to the
best evidence rule.
It was established in the proceedings before the HRET that the originals of the Committee Report No. 12,
the minutes of the plenary session of 1971 Constitutional Convention held on November 28, 1972 cannot
be found.
This was affirmed by Atty. Ricafrente, Assistant Secretary of the 1971 Constitutional Convention; by Atty.
Nolledo, Delegate to the 1971 Constitutional Convention; and by Atty. Antonio Santos, Chief Librarian of
the U.P Law Center, in their respective testimonies given before the HRET to the effect that there is no
governmental agency which is the official custodian of the records of the 1971 Constitutional
Convention. (TSN, December 12, 1988, pp. 30-31; TSN, January 17, 1989, pp. 34-35; TSN, February 1,
1989, p. 44; TSN, February 6, 1989, pp. 28-29)
The execution of the originals was established by Atty. Ricafrente, who as the Assistant Secretary of the
1971 Constitutional Convention was the proper party to testify to such execution. (TSN, December 12,
1989, pp. 11-24)
The inability to produce the originals before the HRET was also testified to as aforestated by Atty.
Ricafrente, Atty. Nolledo, and Atty. Santos. In proving the inability to produce, the law does not require
the degree of proof to be of sufficient certainty; it is enough that it be shown that after a bona fide
diligent search, the same cannot be found. (see Government of P.I. v. Martinez, 44 Phil. 817 [1918])
Since the execution of the document and the inability to produce were adequately established, the
contents of the questioned documents can be proven by a copy thereof or by the recollection of
witnesses.
Moreover, to erase all doubts as to the authenticity of the documentary evidence cited in the Committee
Report, the former member of the 1971 Constitutional Convention, Atty. Nolledo, when he was
presented as a witness in the hearing of the protest against the private respondent, categorically stated
that he saw the disputed documents presented during the hearing of the election protest against the
brother of the private respondent. (TSN, February 1, 1989, pp. 8-9)
In his concurring opinion, Mr. Justice Sarmiento, a vice-president of the Constitutional Convention, states
that he was presiding officer of the plenary session which deliberated on the report on the election
protest against Delegate Emil Ong. He cites a long list of names of delegates present. Among them are
Mr. Chief Justice Fernan, and Mr. Justice Davide, Jr. The petitioners could have presented any one of the
long list of delegates to refute Mr. Ong's having been declared a natural-born citizen. They did not do so.
Nor did they demur to the contents of the documents presented by the private respondent. They merely
relied on the procedural objections respecting the admissibility of the evidence presented.
The Constitutional Convention was the sole judge of the qualifications of Emil Ong to be a member of
that body. The HRET by explicit mandate of the Constitution, is the sole judge of the qualifications of Jose
Ong, Jr. to be a member of Congress. Both bodies deliberated at length on the controversies over which
they were sole judges. Decisions were arrived at only after a full presentation of all relevant factors
which the parties wished to present. Even assuming that we disagree with their conclusions, we cannot
declare their acts as committed with grave abuse of discretion. We have to keep clear the line
between error and grave abuse.
ON THE ISSUE OF RESIDENCE
The petitioners question the residence qualification of respondent Ong.
The petitioners lose sight of the meaning of "residence" under the Constitution. The term "residence"
has been understood as synonymous with domicile not only under the previous Constitutions but also
under the 1987 Constitution.
The deliberations of the Constitutional Commission reveal that the meaning of residence vis-a-vis the
qualifications of a candidate for Congress continues to remain the same as that of domicile, to wit:
Mr. Nolledo: With respect to Section 5, I remember that in
the 1971 Constitutional Convention, there was an attempt
to require residence in the place not less than one year
immediately preceding the day of the elections. So my
question is: What is the Committee's concept of residence of
a candidate for the legislature? Is it actual residence or is it
the concept of domicile or constructive residence?
Mr. Davide: Madame President, in so far as the regular
members of the National Assembly are concerned, the
proposed section merely provides, among others, and a
resident thereof, that is, in the district, for a period of not
less than one year preceding the day of the election. This
was in effect lifted from the 1973 Constitution, the
 interpretation given to it was domicile. (Records of the 1987 the co-owner thereof (as a co- heir), notwithstanding the fact that these were still in the names of his
Constitutional Convention, Vol. 11, July 22, 1986. p. 87) parents.

xxx xxx xxx Even assuming that the private respondent does not own any property in Samar, the Supreme Court in
the case ofDe los Reyes v. Solidum (61 Phil. 893 [1935]) held that it is not required that a person should
have a house in order to establish his residence and domicile. It is enough that he should live in the
Mrs. Rosario Braid: The next question is on Section 7, page
municipality or in a rented house or in that of a friend or relative. (Emphasis supplied)
2. I think Commissioner Nolledo has raised the same point
that "resident" has been interpreted at times as a matter of
intention rather than actual residence. To require the private respondent to own property in order to be eligible to run for Congress would be
tantamount to a property qualification. The Constitution only requires that the candidate meet the age,
citizenship, voting and residence requirements. Nowhere is it required by the Constitution that the
Mr. De los Reyes: Domicile.
candidate should also own property in order to be qualified to run. (see Maquera v. Borra, 122 Phil. 412
[1965])
Ms. Rosario Braid: Yes, So, would the gentlemen consider at
the proper time to go back to actual residence rather than
It has also been settled that absence from residence to pursue studies or practice a profession or
mere intention to reside?
registration as a voter other than in the place where one is elected, does not constitute loss of residence.
(Faypon v. Quirino, 96 Phil. 294 [1954])
Mr. De los Reyes: But we might encounter some difficulty
especially considering that a provision in the Constitution in
As previously stated, the private respondent stayed in Manila for the purpose of finishing his studies and
the Article on Suffrage says that Filipinos living abroad may
later to practice his profession, There was no intention to abandon the residence in Laoang, Samar. On
vote as enacted by law. So, we have to stick to the original
the contrary, the periodical journeys made to his home province reveal that he always had
concept that it should be by domicile and not physical and
the animus revertendi.
actual residence. (Records of the 1987 Constitutional
Commission, Vol. 11, July 22, 1986, p. 110)
The Philippines is made up not only of a single race; it has, rather, undergone an interracial evolution.
Throughout our history, there has been a continuing influx of Malays, Chinese, Americans, Japanese,
The framers of the Constitution adhered to the earlier definition given to the word "residence" which
Spaniards and other nationalities. This racial diversity gives strength to our country.
regarded it as having the same meaning as domicile.

Many great Filipinos have not been whole-blooded nationals, if there is such a person, for there is none.
The term "domicile" denotes a fixed permanent residence to which when absent for business or
To mention a few, the great Jose Rizal was part Chinese, the late Chief Justice Claudio Teehankee was
pleasure, one intends to return. (Ong Huan Tin v. Republic, 19 SCRA 966 [1967]) The absence of a person
part Chinese, and of course our own President, Corazon Aquino is also part Chinese. Verily, some
from said permanent residence, no matter how long, notwithstanding, it continues to be the domicile of
Filipinos of whom we are proud were ethnically more Chinese than the private respondent.
that person. In other words, domicile is characterized by animus revertendi (Ujano v. Republic, 17 SCRA
147 [1966])
Our citizens no doubt constitute the country's greatest wealth. Citizenship is a special privilege which
one must forever cherish.
The domicile of origin of the private respondent, which was the domicile of his parents, is fixed at
Laoang, Samar. Contrary to the petitioners' imputation, Jose Ong, Jr. never abandoned said domicile; it
remained fixed therein even up to the present. However, in order to truly revere this treasure of citizenship, we do not, on the basis of too harsh an
interpretation, have to unreasonably deny it to those who qualify to share in its richness.
The private respondent, in the proceedings before the HRET sufficiently established that after the fire
that gutted their house in 1961, another one was constructed. Under the overly strict jurisprudence surrounding our antiquated naturalization laws only the very
affluent backed by influential patrons, who were willing to suffer the indignities of a lengthy, sometimes
humiliating, and often corrupt process of clearances by minor bureaucrats and whose lawyers knew how
Likewise, after the second fire which again destroyed their house in 1975, a sixteen-door apartment was
to overcome so many technical traps of the judicial process were able to acquire citizenship. It is time for
built by their family, two doors of which were reserved as their family residence. (TSN, Jose Ong, Jr.,
the naturalization law to be revised to enable a more positive, affirmative, and meaningful examination
November 18,1988, p. 8)
of an applicant's suitability to be a Filipino. A more humane, more indubitable and less technical
approach to citizenship problems is essential.
The petitioners' allegation that since the private respondent owns no property in Laoang, Samar, he
cannot, therefore, be a resident of said place is misplaced.
WHEREFORE, the petitions are hereby DISMISSED. The questioned decision of the House of
Representatives Electoral Tribunal is AFFIRMED. Respondent Jose Ong, Jr. is declared a natural-born
The properties owned by the Ong Family are in the name of the private respondent's parents. Upon the citizen of the Philippines and a resident of Laoang, Northern Samar.
demise of his parents, necessarily, the private respondent, pursuant to the laws of succession, became
Republic of the Philippines country; And provided, finally, That any Filipino citizen who is rendering service to, or is
SUPREME COURT commissioned in, the armed forces of a foreign country under any of the circumstances
Manila mentioned in paragraph (a) or (b), shall not be Republic of the Philippines during the period of
his service to, or commission in, the armed forces of said country. Upon his discharge from
the service of the said foreign country, he shall be automatically entitled to the full enjoyment
EN BANC
of his civil and politically entitled to the full enjoyment of his civil political rights as a Filipino
citizen x x x.
G.R. No. 142840 May 7, 2001
Whatever doubt that remained regarding his loss of Philippine citizenship was erased by his
ANTONIO BENGSON III, petitioner, naturalization as a U.S. citizen on June 5, 1990, in connection with his service in the U.S. Marine Corps.
vs.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and TEODORO C. CRUZ, respondents.
On March 17, 1994, respondent Cruz reacquired his Philippine citizenship through repatriation under
Republic Act No. 2630.3 He ran for and was elected as the Representative of the Second District of
CONCURRING OPINION Pangasinan in the May 11, 1998 elections. He won by a convincing margin of 26,671 votes over
petitioner Antonio Bengson III, who was then running for reelection.1wphi1.nt
DISSENTING OPINION
Subsequently, petitioner filed a case for Quo Warranto Ad Cautelam with respondent House of
KAPUNAN, J.: Representatives Electoral Tribunal (HRET) claiming that respondent Cruz was not qualified to become a
member of the House of Representatives since he is not a natural-born citizen as required under Article
VI, section 6 of the Constitution.4
The citizenship of respondent Teodoro C. Cruz is at issue in this case, in view of the constitutional
requirement that "no person shall be a Member of the House of Representative unless he is a natural-
born citizen."1 On March 2, 2000, the HRET rendered its decision5 dismissing the petition for quo warranto and
declaring Cruz the duly elected Representative of the Second District of Pangasinan in the May 1998
elections. The HRET likewise denied petitioner's motion for reconsideration of the decision in its
Respondent Cruz was a natural-born citizen of the Philippines. He was born in San Clemente, Tarlac, on resolution dated April 27, 2000.6
April 27, 1960, of Filipino parents. The fundamental law then applicable was the 1935 Constitution.2

On November 5, 1985, however, respondent Cruz enlisted in the United States Marine Corps and
without the consent of the Republic of the Philippines, took an oath of allegiance to the United States. As
a Consequence, he lost his Filipino citizenship for under Commonwealth Act No. 63, section 1(4), a
Filipino citizen may lose his citizenship by, among other, "rendering service to or accepting commission
in the armed forces of a foreign country." Said provision of law reads:
SECTION 1. How citizenship may be lost. A Filipino citizen may lose his citizenship in any of
the following ways and/or events:
xxx
Petitioner thus filed the present petition for certiorari assailing the HRET's decision on the following
grounds:
1. The HRET committed serious errors and grave abuse of discretion, amounting to excess of
jurisdiction, when it ruled that private respondent is a natural-born citizen of the
Philippines despite the fact that he had ceased being such in view of the loss and renunciation
of such citizenship on his part.
2. The HRET committed serious errors and grave abuse of discretion, amounting to excess of
jurisdiction, when it considered private respondent as a citizen of the Philippines despite the
fact he did not validly acquire his Philippine citizenship.

(4) By rendering services to, or accepting commission in, the armed of a foreign
country: Provided, That the rendering of service to, or the acceptance of such commission in,
the armed forces of a foreign country, and the taking of an oath of allegiance incident
thereto, with the consent of the Republic of the Philippines, shall not divest a Filipino of his
Philippine citizenship if either of the following circumstances is present:
3. Assuming that private respondent's acquisition of Philippine citizenship was invalid, the
HRET committed serious errors and grave abuse of discretion, amounting to excess of
jurisdiction, when it dismissed the petition despite the fact that such reacquisition could not
legally and constitutionally restore his natural-born status.7

The issue now before us is whether respondent Cruz, a natural-born Filipino who became an American
(a) The Republic of the Philippines has a defensive and/or offensive pact of alliance with said citizen, can still be considered a natural-born Filipino upon his reacquisition of Philippine citizenship.
foreign country; or

(b) The said foreign country maintains armed forces on Philippine territory with the consent
of the Republic of the Philippines: Provided, That the Filipino citizen concerned, at the time of
rendering said service, or acceptance of said commission, and taking the oath of allegiance
incident thereto, states that he does so only in connection with his service to said foreign
Petitioner asserts that respondent Cruz may no longer be considered a natural-born Filipino since he lost
h is Philippine citizenship when he swore allegiance to the United States in 1995, and had to reacquire
the same by repatriation. He insists that Article citizens are those who are from birth with out having to
perform any act to acquire or perfect such citizenship.
Respondent on the other hand contends that he reacquired his status as natural-born citizen when he
was repatriated since the phrase "from birth" in Article IV, Section 2 refers to the innate, inherent and
inborn characteristic of being a natural-born citizen.
The petition is without merit.
The 1987 Constitution enumerates who are Filipino citizens as follow:
(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution;
(2) Those whose fathers or mothers are citizens of the Philippines;
(3) Those born before January 17, 1973 of Filipino mother, who elect Philippine citizenship
upon reaching the age of majority, and
(4) Those who are naturalized in accordance with law.8
There are two ways of acquiring citizenship: (1) by birth, and (2) by naturalization. These ways of
acquiring citizenship correspond to the two kinds of citizens: the natural-born citizen, and the
naturalized citizen. A person who at the time of his birth is a citizen of a particular country, is a natural-
born citizen thereof.9
As defined in the same Constitution, natural-born citizens "are those citizens of the Philippines from
birth without having to perform any act to acquire or perfect his Philippine citezenship."10
On the other hand, naturalized citizens are those who have become Filipino citizens through
naturalization, generally under Commonwealth Act No. 473, otherwise known as the Revised
Naturalization Law, which repealed the former Naturalization Law (Act No. 2927), and by Republic Act
No. 530.11 To be naturalized, an applicant has to prove that he possesses all the qualifications12 and none
of the disqualification13 provided by law to become a Filipino citizen. The decision granting Philippine
citizenship becomes executory only after two (2) years from its promulgation when the court is satisfied
that during the intervening period, the applicant has (1) not left the Philippines; (2) has dedicated
himself to a lawful calling or profession; (3) has not been convicted of any offense or violation of
Government promulgated rules; or (4) committed any act prejudicial to the interest of the nation or
contrary to any Government announced policies.14
Filipino citizens who have lost their citizenship may however reacquire the same in the manner provided
by law. Commonwealth Act. No. (C.A. No. 63), enumerates the three modes by which Philippine
citizenship may be reacquired by a former citizen: (1) by naturalization, (2) by repatriation, and (3) by
direct act of Congress.15
Naturalization is mode for both acquisition and reacquisition of Philippine citizenship. As a mode of
initially acquiring Philippine citizenship, naturalization is governed by Commonwealth Act No. 473, as
amended. On the other hand, naturalization as a mode for reacquiring Philippine citizenship is governed
by Commonwealth Act No. 63.16 Under this law, a former Filipino citizen who wishes to reacquire
Philippine citizenship must possess certain qualifications17 and none of the disqualification mentioned in
Section 4 of C.A. 473.18
Repatriation, on the other hand, may be had under various statutes by those who lost their citizenship
due to: (1) desertion of the armed forces;19 services in the armed forces of the allied forces in World War
II;20 (3) service in the Armed Forces of the United States at any other time, 21 (4) marriage of a Filipino
woman to an alien;22 and (5) political economic necessity.23
As distinguished from the lengthy process of naturalization, repatriation simply consists of the taking of
an oath of allegiance to the Republic of the Philippine and registering said oath in the Local Civil Registry
of the place where the person concerned resides or last resided.
In Angat v. Republic,24 we held:
xxx. Parenthetically, under these statutes [referring to RA Nos. 965 and 2630], the person
desiring to reacquire Philippine citizenship would not even be required to file a petition in
court, and all that he had to do was to take an oath of allegiance to the Republic of the
Philippines and to register that fact with the civil registry in the place of his residence or
where he had last resided in the Philippines. [Italics in the original.25
Moreover, repatriation results in the recovery of the original nationality.26 This means that a naturalized
Filipino who lost his citizenship will be restored to his prior status as a naturalized Filipino citizen. On the
other hand, if he was originally a natural-born citizen before he lost his Philippine citizenship, he will be
restored to his former status as a natural-born Filipino.
In respondent Cruz's case, he lost his Filipino citizenship when he rendered service in the Armed Forces
of the United States. However, he subsequently reacquired Philippine citizenship under R.A. No. 2630,
which provides:
Section 1. Any person who had lost his Philippine citizenship by rendering service to, or
accepting commission in, the Armed Forces of the United States, or after separation from the
Armed Forces of the United States, acquired United States citizenship, may reacquire
Philippine citizenship by taking an oath of allegiance to the Republic of the Philippines and
registering the same with Local Civil Registry in the place where he resides or last resided in
the Philippines. The said oath of allegiance shall contain a renunciation of any other
citizenship.
Having thus taken the required oath of allegiance to the Republic and having registered the same in the
Civil Registry of Magantarem, Pangasinan in accordance with the aforecited provision, respondent Cruz is
deemed to have recovered his original status as a natural-born citizen, a status which he acquired at
birth as the son of a Filipino father.27 It bears stressing that the act of repatriation allows him to recover,
or return to, his original status before he lost his Philippine citizenship.
Petitioner's contention that respondent Cruz is no longer a natural-born citizen since he had to perform
an act to regain his citizenship is untenable. As correctly explained by the HRET in its decision, the term
"natural-born citizen" was first defined in Article III, Section 4 of the 1973 Constitution as follows:
Sec. 4. A natural-born citizen is one who is a citizen of the Philippines from birth without
having to perform any act to acquire or perfect his Philippine citizenship.
Two requisites must concur for a person to be considered as such: (1) a person must be a Filipino citizen
birth and (2) he does not have to perform any act to obtain or perfect his Philippine citizenship.
Under the 1973 Constitution definition, there were two categories of Filipino citizens which were not
considered natural-born: (1) those who were naturalized and (2) those born before January 17,
1973,38 of Filipino mothers who, upon reaching the age of majority, elected Philippine citizenship. Those
"naturalized citizens" were not considered natural-born obviously because they were not Filipino at birth
and had to perform an act to acquire Philippine citizenship. Those born of Filipino mothers before the
effectively of the 1973 Constitution were likewise not considered natural-born because they also had to
perform an act to perfect their Philippines citizenship.

The present Constitution, however, now consider those born of Filipino mothers before the effectivity of
the 1973 Constitution and who elected Philippine citizenship upon reaching the majority age as natural-
born. After defining who re natural-born citizens, Section 2 of Article IV adds a sentence: "Those who
elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-
born citizens." Consequently, only naturalized Filipinos are considered not natural-born citizens. It is
apparent from the enumeration of who are citizens under the present Constitution that there are only
two classes of citizens: (1) those who are natural-born and (2) those who are naturalized in accordance
with law. A citizen who is not a naturalized Filipino, i.e., did not have to undergo the process of
naturalization to obtain Philippine citizenship, necessarily is natural-born Filipino. Noteworthy is the
absence in said enumeration of a separate category for persons who, after losing Philippine citizenship,
subsequently reacquire it. The reason therefor is clear: as to such persons, they would either be natural-
born or naturalized depending on the reasons for the loss of their citizenship and the mode prescribed
by the applicable law for the reacquisition thereof. As respondent Cruz was not required by law to go
through naturalization proceeding in order to reacquire his citizenship, he is perforce a natural-born
Filipino. As such, he possessed all the necessary qualifications to be elected as member of the House of
Representatives.

A final point. The HRET has been empowered by the Constitution to be the "sole judge" of all contests
relating to the election, returns, and qualifications of the members of the House. 29 The Court's
jurisdiction over the HRET is merely to check "whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction" on the part of the latter.30 In the absence thereof, there is no
occasion for the Court to exercise its corrective power and annul the decision of the HRET nor to
substitute the Court's judgement for that of the latter for the simple reason that it is not the office of a
petition for certiorari to inquire into the correctness of the assailed decision.31 There is no such showing
of grave abuse of discretion in this case.

WHEREFORE, the petition is hereby DISMISSED.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 135083 May 26, 1999
ERNESTO S. MERCADO, petitioner,
vs.
EDUARDO BARRIOS MANZANO and the COMMISSION ON ELECTIONS, respondents.
MENDOZA, J.:
Petitioner Ernesto S. Mercado and private respondent Eduardo B. Manzano were candidates for vice
mayor of the City of Makati in the May 11, 1998 elections. The other one was Gabriel V. Daza III. The
results of the election were as follows:
Eduardo B. Manzano 103,853
Ernesto S. Mercado 100,894
Gabriel V. Daza III 54,275 1
The proclamation of private respondent was suspended in view of a pending petition for disqualification
filed by a certain Ernesto Mamaril who alleged that private respondent was not a citizen of the
Philippines but of the United States.
In its resolution, dated May 7, 1998, 2 the Second Division of the COMELEC granted the petition of
Mamaril and ordered the cancellation of the certificate of candidacy of private respondent on the
ground that he is a dual citizen and, under 40(d) of the Local Government Code, persons with dual
citizenship are disqualified from running for any elective position. The COMELEC's Second Division said:
What is presented before the Commission is a petition for disqualification of
Eduardo Barrios Manzano as candidate for the office of Vice-Mayor of Makati City
in the May 11, 1998 elections. The petition is based on the ground that the
respondent is an American citizen based on the record of the Bureau of
Immigration and misrepresented himself as a natural-born Filipino citizen.
In his answer to the petition filed on April 27, 1998, the respondent admitted that
he is registered as a foreigner with the Bureau of Immigration under Alien
Certificate of Registration No. B-31632 and alleged that he is a Filipino citizen
because he was born in 1955 of a Filipino father and a Filipino mother. He was
born in the United States, San Francisco, California, September 14, 1955, and is
considered in American citizen under US Laws. But notwithstanding his registration
as an American citizen, he did not lose his Filipino citizenship.
Judging from the foregoing facts, it would appear that respondent Manzano is
born a Filipino and a US citizen. In other words, he holds dual citizenship.
The question presented is whether under our laws, he is disqualified from the
position for which he filed his certificate of candidacy. Is he eligible for the office
he seeks to be elected?
Under Section 40(d) of the Local Government Code, those holding dual citizenship
are disqualified from running for any elective local position.
WHEREFORE, the Commission hereby declares the respondent Eduardo Barrios
Manzano DISQUALIFIED as candidate for Vice-Mayor of Makati City.
On May 8, 1998, private respondent filed a motion for reconsideration. 3 The motion remained pending
even until after the election held on May 11, 1998.
Accordingly, pursuant to Omnibus Resolution No. 3044, dated May 10, 1998, of the COMELEC, the board
of canvassers tabulated the votes cast for vice mayor of Makati City but suspended the proclamation of
the winner.
On May 19, 1998, petitioner sought to intervene in the case for disqualification. 4 Petitioner's motion was
opposed by private respondent.
The motion was not resolved. Instead, on August 31, 1998, the COMELEC en banc rendered its
resolution. Voting 4 to 1, with one commissioner abstaining, the COMELEC en banc reversed the ruling of
its Second Division and declared private respondent qualified to run for vice mayor of the City of Makati
in the May 11, 1998 elections. 5The pertinent portions of the resolution of the COMELEC en banc read:
As aforesaid, respondent Eduardo Barrios Manzano was born in San Francisco,
California, U.S.A. He acquired US citizenship by operation of the United States
Constitution and laws under the principle ofjus soli.
He was also a natural born Filipino citizen by operation of the 1935 Philippine
Constitution, as his father and mother were Filipinos at the time of his birth. At the
age of six (6), his parents brought him to the Philippines using an American
passport as travel document. His parents also registered him as an alien with the
Philippine Bureau of Immigration. He was issued an alien certificate of registration.
This, however, did not result in the loss of his Philippine citizenship, as he did not
renounce Philippine citizenship and did not take an oath of allegiance to the
United States.
It is an undisputed fact that when respondent attained the age of majority, he
registered himself as a voter, and voted in the elections of 1992, 1995 and 1998,
which effectively renounced his US citizenship under American law. Under
Philippine law, he no longer had U.S. citizenship.
 At the time of the May 11, 1998 elections, the resolution of the Second Division,
adopted on May 7, 1998, was not yet final. Respondent Manzano obtained the
highest number of votes among the candidates for vice-mayor of Makati City,
garnering one hundred three thousand eight hundred fifty three (103,853) votes
over his closest rival, Ernesto S. Mercado, who obtained one hundred thousand
eight hundred ninety four (100,894) votes, or a margin of two thousand nine
hundred fifty nine (2,959) votes. Gabriel Daza III obtained third place with fifty four
thousand two hundred seventy five (54,275) votes. In applying election laws, it
would be far better to err in favor of the popular choice than be embroiled in
complex legal issues involving private international law which may well be settled
before the highest court (Cf. Frivaldo vs. Commission on Elections, 257 SCRA 727).
WHEREFORE, the Commission en banc hereby REVERSES the resolution of the
Second Division, adopted on May 7, 1998, ordering the cancellation of the
respondent's certificate of candidacy.
We declare respondent Eduardo Luis Barrios Manzano to be QUALIFIED as a
candidate for the position of vice-mayor of Makati City in the May 11, 1998,
elections.
ACCORDINGLY, the Commission directs the Makati City Board of Canvassers, upon
proper notice to the parties, to reconvene and proclaim the respondent Eduardo
Luis Barrios Manzano as the winning candidate for vice-mayor of Makati City.
Pursuant to the resolution of the COMELEC en banc, the board of canvassers, on the evening of August
31, 1998, proclaimed private respondent as vice mayor of the City of Makati.
This is a petition for certiorari seeking to set aside the aforesaid resolution of the COMELEC en banc and
to declare private respondent disqualified to hold the office of vice mayor of Makati City. Petitioner
contends that
[T]he COMELEC en banc ERRED in holding that:
A. Under Philippine law, Manzano was no longer a U.S. citizen when he:
1. He renounced his U.S. citizenship when he attained the
age of majority when he was already 37 years old; and,
2. He renounced his U.S. citizenship when he (merely)
registered himself as a voter and voted in the elections of
1992, 1995 and 1998.
B. Manzano is qualified to run for and or hold the elective office of Vice-Mayor of
the City of Makati;
C. At the time of the May 11, 1998 elections, the resolution of the Second Division
adopted on 7 May 1998 was not yet final so that, effectively, petitioner may not be
declared the winner even assuming that Manzano is disqualified to run for and
hold the elective office of Vice-Mayor of the City of Makati.
We first consider the threshold procedural issue raised by private respondent Manzano whether
petitioner Mercado his personality to bring this suit considering that he was not an original party in the
case for disqualification filed by Ernesto Mamaril nor was petitioner's motion for leave to intervene
granted.
I. PETITIONER'S RIGHT TO BRING THIS SUIT
Private respondent cites the following provisions of Rule 8 of the Rules of Procedure of the COMELEC in
support of his claim that petitioner has no right to intervene and, therefore, cannot bring this suit to set
aside the ruling denying his motion for intervention:
Sec. 1. When proper and when may be permitted to intervene. Any person
allowed to initiate an action or proceeding may, before or during the trial of an
action or proceeding, be permitted by the Commission, in its discretion to
intervene in such action or proceeding, if he has legal interest in the matter in
litigation, or in the success of either of the parties, or an interest against both, or
when he is so situated as to be adversely affected by such action or proceeding.
xxx xxx xxx
Sec. 3. Discretion of Commission. In allowing or disallowing a motion for
intervention, the Commission or the Division, in the exercise of its discretion, 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
intervenor's rights may be fully protected in a separate action or proceeding.
Private respondent argues that petitioner has neither legal interest in the matter in litigation
nor an interest to protect because he is "a defeated candidate for the vice-mayoralty post of
Makati City [who] cannot be proclaimed as the Vice-Mayor of Makati City if the private
respondent be ultimately disqualified by final and executory judgment."
The flaw in this argument is it assumes that, at the time petitioner sought to intervene in the
proceedings before the COMELEC, there had already been a proclamation of the results of the election
for the vice mayoralty contest for Makati City, on the basis of which petitioner came out only second to
private respondent. The fact, however, is that there had been no proclamation at that time. Certainly,
petitioner had, and still has, an interest in ousting private respondent from the race at the time he
sought to intervene. The rule in Labo v. COMELEC, 6 reiterated in several cases, 7 only applies to cases in
which the election of the respondent is contested, and the question is whether one who placed second
to the disqualified candidate may be declared the winner. In the present case, at the time petitioner filed
a "Motion for Leave to File Intervention" on May 20, 1998, there had been no proclamation of the
winner, and petitioner's purpose was precisely to have private respondent disqualified "from running for
[an] elective local position" under 40(d) of R.A. No. 7160. If Ernesto Mamaril (who originally instituted
the disqualification proceedings), a registered voter of Makati City, was competent to bring the action,
so was petitioner since the latter was a rival candidate for vice mayor of Makati City.
Nor is petitioner's interest in the matter in litigation any less because he filed a motion for intervention
only on May 20, 1998, after private respondent had been shown to have garnered the highest number of
votes among the candidates for vice mayor. That petitioner had a right to intervene at that stage of the
proceedings for the disqualification against private respondent is clear from 6 of R.A. No. 6646,
otherwise known as the Electoral Reform Law of 1987, which provides:
 Any candidate who his been declared by final judgment to be disqualified shall not
be voted for, and the votes cast for him shall not be counted. If for any reason a
candidate is not declared by final judgment before an election to be disqualified
and he is voted for and receives the winning number of votes in such election, the
Court or Commission shall continue with the trial and hearing of action, inquiry, or
protest and, upon motion of the complainant or any intervenor, may during the
pendency thereof order the suspension of the proclamation of such candidate
whenever the evidence of guilt is strong.
Under this provision, intervention may be allowed in proceedings for disqualification even after election
if there has yet been no final judgment rendered.
The failure of the COMELEC en banc to resolve petitioner's motion for intervention was tantamount to a
denial of the motion, justifying petitioner in filing the instant petition for certiorari. As the COMELEC en
banc instead decided the merits of the case, the present petition properly deals not only with the denial
of petitioner's motion for intervention but also with the substantive issues respecting private
respondent's alleged disqualification on the ground of dual citizenship.
This brings us to the next question, namely, whether private respondent Manzano possesses dual
citizenship and, if so, whether he is disqualified from being a candidate for vice mayor of Makati City.
II. DUAL CITIZENSHIP AS A GROUND FOR DISQUALIFICATION
The disqualification of private respondent Manzano is being sought under 40 of the Local Government
Code of 1991 (R.A. No. 7160), which declares as "disqualified from running for any elective local position:
. . . (d) Those with dual citizenship." This provision is incorporated in the Charter of the City of Makati. 8
Invoking the maxim dura lex sed lex, petitioner, as well as the Solicitor General, who sides with him in
this case, contends that through 40(d) of the Local Government Code, Congress has "command[ed] in
explicit terms the ineligibility of persons possessing dual allegiance to hold local elective office."
To begin with, dual citizenship is different from dual allegiance. The former arises when, as a result of the
concurrent application of the different laws of two or more states, a person is simultaneously considered
a national by the said states. 9 For instance, such a situation may arise when a person whose parents are
citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the
doctrine of jus soli. Such a person, ipso factoand without any voluntary act on his part, is concurrently
considered a citizen of both states. Considering the citizenship clause (Art. IV) of our Constitution, it is
possible for the following classes of citizens of the Philippines to possess dual citizenship:
(1) Those born of Filipino fathers and/or mothers in foreign countries which follow
the principle of jus soli;
(2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws
of their father's' country such children are citizens of that country;
(3) Those who marry aliens if by the laws of the latter's country the former are
considered citizens, unless by their act or omission they are deemed to have
renounced Philippine citizenship.
There may be other situations in which a citizen of the Philippines may, without performing any act, be
also a citizen of another state; but the above cases are clearly possible given the constitutional provisions
on citizenship.
Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by
some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is
the result of an individual's volition.
With respect to dual allegiance, Article IV, 5 of the Constitution provides: "Dual allegiance of citizens is
inimical to the national interest and shall be dealt with by law." This provision was included in the 1987
Constitution at the instance of Commissioner Blas F. Ople who explained its necessity as follows: 10
. . . I want to draw attention to the fact that dual allegiance is not dual citizenship. I
have circulated a memorandum to the Bernas Committee according to which a
dual allegiance and I reiterate a dual allegiance is larger and more
threatening than that of mere double citizenship which is seldom intentional and,
perhaps, never insidious. That is often a function of the accident of mixed
marriages or of birth on foreign soil. And so, I do not question double citizenship at
all.
What we would like the Committee to consider is to take constitutional cognizance
of the problem of dual allegiance. For example, we all know what happens in the
triennial elections of the Federation of Filipino-Chinese Chambers of Commerce
which consists of about 600 chapters all over the country. There is a Peking ticket,
as well as a Taipei ticket. Not widely known is the fact chat the Filipino-Chinese
community is represented in the Legislative Yuan of the Republic of China in
Taiwan. And until recently, sponsor might recall, in Mainland China in the People's
Republic of China, they have the Associated Legislative Council for overseas
Chinese wherein all of Southeast Asia including some European and Latin countries
were represented, which was dissolved after several years because of diplomatic
friction. At that time, the Filipino-Chinese were also represented in that Overseas
Council.
When I speak of double allegiance, therefore, I speak of this unsettled kind of
allegiance of Filipinos, of citizens who are already Filipinos but who, by their acts,
may be said to be bound by a second allegiance, either to Peking or Taiwan. I also
took close note of the concern expressed by some Commissioners yesterday,
including Commissioner Villacorta, who were concerned about the lack of
guarantees of thorough assimilation, and especially Commissioner Concepcion
who has always been worried about minority claims on our natural resources.
Dull allegiance can actually siphon scarce national capital to Taiwan, Singapore,
China or Malaysia, and this is already happening. Some of the great commercial
places in downtown Taipei are Filipino-owned, owned by Filipino-Chinese it is of
common knowledge in Manila. It can mean a tragic capital outflow when we have
to endure a capital famine which also means economic stagnation, worsening
unemployment and social unrest.
And so, this is exactly what we ask that the Committee kindly consider
incorporating a new section, probably Section 5, in the article on Citizenship which
will read as follows: DUAL ALLEGIANCE IS INIMICAL TO CITIZENSHIP AND SHALL BE
DEALT WITH ACCORDING TO LAW.
In another session of the Commission, Ople spoke on the problem of these citizens with dual allegiance,
thus: 11
. . . A significant number of Commissioners expressed their concern about dual
citizenship in the sense that it implies a double allegiance under a double
sovereignty which some of us who spoke then in a freewheeling debate thought
would be repugnant to the sovereignty which pervades the Constitution and to
citizenship itself which implies a uniqueness and which elsewhere in the
Constitution is defined in terms of rights and obligations exclusive to that
citizenship including, of course, the obligation to rise to the defense of the State
when it is threatened, and back of this, Commissioner Bernas, is, of course, the
concern for national security. In the course of those debates, I think some noted
the fact that as a result of the wave of naturalizations since the decision to
establish diplomatic relations with the People's Republic of China was made in
1975, a good number of these naturalized Filipinos still routinely go to Taipei every
October 10; and it is asserted that some of them do renew their oath of allegiance
to a foreign government maybe just to enter into the spirit of the occasion when
the anniversary of the Sun Yat-Sen Republic is commemorated. And so, I have
detected a genuine and deep concern about double citizenship, with its attendant
risk of double allegiance which is repugnant to our sovereignty and national
security. I appreciate what the Committee said that this could be left to the
determination of a future legislature. But considering the scale of the problem, the
real impact on the security of this country, arising from, let us say, potentially
great numbers of double citizens professing double allegiance, will the Committee
entertain a proposed amendment at the proper time that will prohibit, in effect, or
regulate double citizenship?
Clearly, in including 5 in Article IV on citizenship, the concern of the Constitutional Commission was not
with dual citizens per se but with naturalized citizens who maintain their allegiance to their countries of
origin even after their naturalization. Hence, the phrase "dual citizenship" in R.A. No. 7160, 40(d) and in
R.A. No. 7854, 20 must be understood as referring to "dual allegiance." Consequently, persons with
mere dual citizenship do not fall under this disqualification. Unlike those with dual allegiance, who must,
therefore, be subject to strict process with respect to the termination of their status, for candidates with
dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect Philippine
citizenship to terminate their status as persons with dual citizenship considering that their condition is
the unavoidable consequence of conflicting laws of different states. As Joaquin G. Bernas, one of the
most perceptive members of the Constitutional Commission, pointed out: "[D]ual citizenship is just a
reality imposed on us because we have no control of the laws on citizenship of other countries. We
recognize a child of a Filipino mother. But whether she is considered a citizen of another country is
something completely beyond our control." 12
By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other
country of which they are also citizens and thereby terminate their status as dual citizens. It may be that,
from the point of view of the foreign state and of its laws, such an individual has not effectively
renounced his foreign citizenship. That is of no moment as the following discussion on 40(d) between
Senators Enrile and Pimentel clearly shows:13
SENATOR ENRILE. Mr. President, I would like to ask clarification of line 41, page 17:
"Any person with dual citizenship" is disqualified to run for any elective local
position. Under the present Constitution, Mr. President, someone whose mother is
a citizen of the Philippines but his father is a foreigner is a natural-born citizen of
the Republic. There is no requirement that such a natural born citizen, upon
reaching the age of majority, must elect or give up Philippine citizenship.
On the assumption that this person would carry two passports, one belonging to
the country of his or her father and one belonging to the Republic of the
Philippines, may such a situation disqualify the person to run for a local
government position?
SENATOR PIMENTEL. To my mind, Mr. President, it only means that at the moment
when he would want to run for public office, he has to repudiate one of his
citizenships.
SENATOR ENRILE. Suppose he carries only a Philippine passport but the country of
origin or the country of the father claims that person, nevertheless, as a citizen?
No one can renounce. There are such countries in the world.
SENATOR PIMENTEL. Well, the very fact that he is running for public office would,
in effect, be an election for him of his desire to be considered as a Filipino citizen.
SENATOR ENRILE. But, precisely, Mr. President, the Constitution does not require
an election. Under the Constitution, a person whose mother is a citizen of the
Philippines is, at birth, a citizen without any overt act to claim the citizenship.
SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under the
Gentleman's example, if he does not renounce his other citizenship, then he is
opening himself to question. So, if he is really interested to run, the first thing he
should do is to say in the Certificate of Candidacy that: "I am a Filipino citizen, and I
have only one citizenship."
SENATOR ENRILE. But we are talking from the viewpoint of Philippine law, Mr.
President. He will always have one citizenship, and that is the citizenship invested
upon him or her in the Constitution of the Republic.
SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts that will
prove that he also acknowledges other citizenships, then he will probably fall
under this disqualification.
This is similar to the requirement that an applicant for naturalization must renounce "all allegiance and
fidelity to any foreign prince, potentate, state, or sovereignty" 14 of which at the time he is a subject or
citizen before he can be issued a certificate of naturalization as a citizen of the Philippines. In Parado
v. Republic, 15 it was held:
[W]hen a person applying for citizenship by naturalization takes an oath that he
renounce, his loyalty to any other country or government and solemnly declares
that he owes his allegiance to the Republic of the Philippines, the condition
imposed by law is satisfied and compiled with. The determination whether such
renunciation is valid or fully complies with the provisions of our Naturalization Law
lies within the province and is an exclusive prerogative of our courts. The latter
should apply the law duly enacted by the legislative department of the Republic.
No foreign law may or should interfere with its operation and application. If the
requirement of the Chinese Law of Nationality were to be read into our
Naturalization Law, we would be applying not what our legislative department has
deemed it wise to require, but what a foreign government has thought or intended
to exact. That, of course, is absurd. It must be resisted by all means and at all cost.
 It would be a brazen encroachment upon the sovereign will and power of the
people of this Republic.
III. PETITIONER'S ELECTION OF PHILIPPINE CITIZENSHIP
The record shows that private respondent was born in San Francisco, California on September 4, 1955, of
Filipino parents. Since the Philippines adheres to the principle of jus sanguinis, while the United States
follows the doctrine of jus soli, the parties agree that, at birth at least, he was a national both of the
Philippines and of the United States. However, the COMELEC en banc held that, by participating in
Philippine elections in 1992, 1995, and 1998, private respondent "effectively renounced his U.S.
citizenship under American law," so that now he is solely a Philippine national.
Petitioner challenges this ruling. He argues that merely taking part in Philippine elections is not sufficient
evidence of renunciation and that, in any event, as the alleged renunciation was made when private
respondent was already 37 years old, it was ineffective as it should have been made when he reached
the age of majority.
In holding that by voting in Philippine elections private respondent renounced his American citizenship,
the COMELEC must have in mind 349 of the Immigration and Nationality Act of the United States, which
provided that "A person who is a national of the United States, whether by birth or naturalization, shall
lose his nationality by: . . . (e) Voting in a political election in a foreign state or participating in an election
or plebiscite to determine the sovereignty over foreign territory." To be sure this provision was declared
unconstitutional by the U.S. Supreme Court in Afroyim v. Rusk 16 as beyond the power given to the U.S.
Congress to regulate foreign relations. However, by filing a certificate of candidacy when he ran for his
present post, private respondent elected Philippine citizenship and in effect renounced his American
citizenship. Private respondent's certificate of candidacy, filed on March 27, 1998, contained the
following statements made under oath:
6. I AM A FILIPINO CITIZEN (STATE IF "NATURAL-BORN" OR
"NATURALIZED") NATURAL-BORN
xxx xxx xxx
10. I AM A REGISTERED VOTER OF PRECINCT NO. 747-A, BARANGAY SAN LORENZO,
CITY/MUNICIPALITY OF MAKATI, PROVINCE OF NCR.
11. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A FOREIGN
COUNTRY.
12. I AM ELIGIBLE FOR THE OFFICE I SEEK TO BE ELECTED. I WILL SUPPORT AND
DEFEND THE CONSTITUTION OF THE PHILIPPINES AND WILL MAINTAIN TRUE FAITH
AND ALLEGIANCE THERETO; THAT I WILL OBEY THE LAWS, LEGAL ORDERS AND
DECREES PROMULGATED BY THE DULY CONSTITUTED AUTHORITIES OF THE
REPUBLIC OF THE PHILIPPINES; AND THAT I IMPOSE THIS OBLIGATION UPON
MYSELF VOLUNTARILY, WITHOUT MENTAL RESERVATION OR PURPOSE OF
EVASION. I HEREBY CERTIFY THAT THE FACTS STATED HEREIN ARE TRUE AND
CORRECT OF MY OWN PERSONAL KNOWLEDGE.
The filing of such certificate of candidacy sufficed to renounce his American citizenship, effectively
removing any disqualification he might have as a dual citizen. Thus, in Frivaldo v. COMELEC it was held: 17
It is not disputed that on January 20, 1983 Frivaldo became an American. Would
the retroactivity of his repatriation not effectively give him dual citizenship, which
under Sec. 40 of the Local Government Code would disqualify him "from running
for any elective local position?" We answer this question in the negative, as there
is cogent reason to hold that Frivaldo was really STATELESS at the time he took
said oath of allegiance and even before that, when he ran for governor in 1988. In
his Comment, Frivaldo wrote that he "had long renounced and had long
abandoned his American citizenship long before May 8, 1995. At best, Frivaldo
was stateless in the interim when he abandoned and renounced his US
citizenship but before he was repatriated to his Filipino citizenship."
On this point, we quote from the assailed Resolution dated December 19, 1995:
By the laws of the United States, petitioner Frivaldo lost his
American citizenship when he took his oath of allegiance to
the Philippine Government when he ran for Governor in
1988, in 1992, and in 1995. Every certificate of candidacy
contains an oath of allegiance to the Philippine Government.
These factual findings that Frivaldo has lost his foreign nationality long before the
elections of 1995 have not been effectively rebutted by Lee. Furthermore, it is
basic that such findings of the Commission are conclusive upon this Court, absent
any showing of capriciousness or arbitrariness or abuse.
There is, therefore, no merit in petitioner's contention that the oath of allegiance contained in private
respondent's certificate of candidacy is insufficient to constitute renunciation that, to be effective, such
renunciation should have been made upon private respondent reaching the age of majority since no law
requires the election of Philippine citizenship to be made upon majority age.
Finally, much is made of the fact that private respondent admitted that he is registered as an American
citizen in the Bureau of Immigration and Deportation and that he holds an American passport which he
used in his last travel to the United States on April 22, 1997. There is no merit in this. Until the filing of
his certificate of candidacy on March 21, 1998, he had dual citizenship. The acts attributed to him can be
considered simply as the assertion of his American nationality before the termination of his American
citizenship. What this Court said in Aznar v.COMELEC 18 applies mutatis mundatis to private respondent
in the case at bar:
. . . Considering the fact that admittedly Osmea was both a Filipino and an
American, the mere fact that he has a Certificate staring he is an American does
not mean that he is not still a Filipino. . . . [T]he Certification that he is an American
does not mean that he is not still a Filipino, possessed as he is, of both nationalities
or citizenships. Indeed, there is no express renunciation here of Philippine
citizenship; truth to tell, there is even no implied renunciation of said citizenship.
When We consider that the renunciation needed to lose Philippine citizenship
must be "express," it stands to reason that there can be no such loss of Philippine
citizenship when there is no renunciation, either "express" or "implied."
To recapitulate, by declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a
permanent resident or immigrant of another country; that he will defend and support the Constitution of
the Philippines and bear true faith and allegiance thereto and that he does so without mental
reservation, private respondent has, as far as the laws of this country are concerned, effectively
repudiated his American citizenship and anything which he may have said before as a dual citizen.
On the other hand, private respondent's oath of allegiance to the Philippines, when considered with the
fact that he has spent his youth and adulthood, received his education, practiced his profession as an
artist, and taken part in past elections in this country, leaves no doubt of his election of Philippine
citizenship.

His declarations will be taken upon the faith that he will fulfill his undertaking made under oath. Should
he betray that trust, there are enough sanctions for declaring the loss of his Philippine citizenship
through expatriation in appropriate proceedings. In Yu v. Defensor-Santiago, 19 we sustained the denial
of entry into the country of petitioner on the ground that, after taking his oath as a naturalized citizen,
he applied for the renewal of his Portuguese passport and declared in commercial documents executed
abroad that he was a Portuguese national. A similar sanction can be taken against any one who, in
electing Philippine citizenship, renounces his foreign nationality, but subsequently does some act
constituting renunciation of his Philippine citizenship.

WHEREFORE, the petition for certiorari is DISMISSED for lack of merit.1wphi1.nt

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 86564 August 1, 1989
RAMON L. LABO, JR., petitioner,
vs.
THE COMMISSION ON ELECTIONS (COMELEC) EN BANC AND LUIS L. LARDIZABAL, respondents
Estelito P. Mendoza for petitioner.
Rillera and Quintana for private respondent.
CRUZ, J.:
The petitioner asks this Court to restrain the Commission on Elections from looking into the question of
his citizenship as a qualification for his office as Mayor of Baguio City. The allegation that he is a
foreigner, he says, is not the issue. The issue is whether or not the public respondent has jurisdiction to
conduct any inquiry into this matter, considering that the petition for quo warranto against him was not
filed on time.
It is noteworthy that this argument is based on the alleged tardiness not of the petition itself but of the
payment of the filing fee, which the petitioner contends was an indispensable requirement. The fee is,
curiously enough, all of P300.00 only. This brings to mind the popular verse that for want of a horse the
kingdom was lost. Still, if it is shown that the petition was indeed filed beyond the reglementary period,
there is no question that this petition must be granted and the challenge abated.
The petitioner's position is simple. He was proclaimed mayor-elect of Baguio City, on January 20, 1988.
The petition for quo warranto was filed by the private respondent on January 26, 1988, but no filing fee
was paid on that date. This fee was finally paid on February 10, 1988, or twenty-one days after his
proclamation. As the petition by itself alone was ineffectual without the filing fee, it should be deemed
filed only when the fee was paid. This was done beyond the reglementary period provided for under
Section 253 of the Omnibus Election Code reading as follows:
SEC. 253. Petition for quo warranto. Any voter contesting the election of a
Member of the Batasang Pambansa, regional, provincial, or city officer on the
ground of ineligibility or of disloyalty to the Republic of the Philippines shall file a
sworn petition for quo warranto with the Commission within ten days after the
proclamation of the result of the election.
The petitioner adds that the payment of the filing fee is required under Rule 36, Section 5, of the
Procedural Rules of the COMELEC providing that
Sec. 5. No petition for quo warranto shall be given due course without the
payment of a filing fee in the amount of Three Hundred Pesos (P300.00) and the
legal research fee as required by law.
and stresses that there is abundant jurisprudence holding that the payment of the filing fee is essential
to the timeliness of the filling of the petition itself. He cites many rulings of the Court to this effect,
specifically Manchester v. Court of Appeals. 1
For his part, the private respondent denies that the filing fee was paid out of time. In fact he says, it was
fliedahead of time. His point is that when he filed his "Petition for Quo Warranto with Prayer for
Immediate Annulment of Proclamation and Restraining Order or Injunction" on January 26, 1988, the
COMELEC treated it as a pre-proclamation controversy and docketed it as SPC Case No. 88-288. No
docket fee was collected although it was offered. It was only on February 8, 1988, that the COMELEC
decided to treat his petition as solely for quo warranto and re-docketed it as EPC Case No. 88-19, serving
him notice on February 10, 1988. He immediately paid the filing fee on that date.
The private respondent argues further that during the period when the COMELEC regarded his petition
as a pre-proclamation controversy, the time for filing an election protest or quo warranto proceeding
was deemed suspended under Section 248 of the Omnibus Election Code. 2 At any rate, he says, Rule 36,
Section 5, of the COMELEC Rules of Procedure cited by the petitioner, became effective only on
November 15, 1988, seven days after publication of the said Rules in the Official Gazette pursuant to
Section 4, Rule 44 thereof. 3 These rules could not retroact to January 26,1988, when he filed his petition
with the COMELEC.
In his Reply, the petitioner argues that even if the Omnibus Election Code did not require it, the payment
of filing fees was still necessary under Res. No. 1996 and, before that, Res. No. 1450 of the respondent
COMELEC, promulgated on January 12, 1988, and February 26, 1980, respectively. To this, the private
respondent counters that the latter resolution was intended for the local elections held on January 30,
1980, and did not apply to the 1988 local elections, which were supposed to be governed by the first-
mentioned resolution. However, Res. No. 1996 took effect only on March 3, 1988, following the lapse of
seven days after its publication as required by RA No. 6646, otherwise known as the Electoral Reform
Law of 1987, which became effective on January 5, 1988. Its Section 30 provides in part:
Sec. 30. Effectivity of Regulations and Orders of the Commission. The rules and
regulations promulgated by the Commission shall take effect on the seventh day
after their publication in the Official Gazette or in at least (2) daily newspapers of
general circulation in the Philippines.
The Court has considered the arguments of the parties and holds that the petition for quo warranto was
filed on time. We agree with the respondents that the fee was paid during the ten-day period as
extended by the pendency of the petition when it was treated by the COMELEC as a pre-proclamation
proceeding which did not require the payment of a filing fee. At that, we reach this conclusion only on
the assumption that the requirement for the payment of the fees in quo warranto proceedings was
already effective. There is no record that Res. No. 1450 was even published; and as for Res. No. 1996,
this took effect only on March 3, 1988, seven days after its publication in the February 25, 1988 issues of
the Manila Chronicle and the Philippine Daily Inquirer, or after the petition was filed.
The petitioner forgets Ta;ada v. Tuvera 4 when he argues that the resolutions became effective
"immediately upon approval" simply because it was so provided therein. We held in that case that
publication was still necessary under the due process clause despite such effectivity clause.
In any event, what is important is that the filing fee was paid, and whatever delay there may have been is
not imputable to the private respondent's fault or neglect. It is true that in the Manchester Case, we
required the timely payment of the filing fee as a precondition for the timeliness of the filing of the case
itself. In Sun Insurance Office, Ltd. v. Asuncion, 5 however this Court, taking into account the special
circumstances of that case, declared:
This Court reiterates the rule that the trial court acquires jurisdiction over a case
only upon the payment of the prescribed filing fee. However, the court may allow
the payment of the said fee within a reasonable time. In the event of non-
compliance therewith, the case shall be dismissed.
The same idea is expressed in Rule 42, Section 18, of the COMELEC Rules of Procedure adopted on June
20, 1988, thus:
Sec. 18. Non-payment of prescribed fees. If the fees above prescribed are not
paid, theCommission may refuse to take action thereon until they are paid and
may dismiss the action or the proceeding. (Emphasis supplied.)
The Court notes that while arguing the technical point that the petition for quo warranto should be
dismissed for failure to pay the filing fee on time, the petitioner would at the same time minimize his
alleged lack of citizenship as "a futile technicality," It is regrettable, to say the least, that the requirement
of citizenship as a qualification for public office can be so demeaned. What is worse is that it is regarded
as an even less important consideration than the reglementary period the petitioner insists upon.
This matter should normally end here as the sole issue originally raised by the petitioner is the timeliness
of thequo warranto proceedings against him. However, as his citizenship is the subject of that
proceeding, and considering the necessity for an early resolution of that more important question clearly
and urgently affecting the public interest, we shall directly address it now in this same action.
The Court has similarly acted in a notable number of cases, thus:
From the foregoing brief statement of the nature of the instant case, it would
appear that our sole function in this proceeding should be to resolve the single
issue of whether or not the Court of Appeals erred in ruling that the motion for
new trial of the GSIS in question should indeed be deemedpro forma. But going
over the extended pleadings of both parties, the Court is immediately impressed
that substantial justice may not be timely achieved, if we should decide this case
upon such a technical ground alone. We have carefully read all the allegations and
arguments of the parties, very ably and comprehensively expounded by evidently
knowledgeable and unusually competent counsel, and we feel we can better serve
the interests of justice by broadening the scope of our inquiry, for as the record
before us stands, we see that there is enough basis for us to end the basic
controversy between the parties here and now, dispensing, however, with
procedural steps which would not anyway affect substantially the merits of their
This course of action becomes all the more justified in the present case where, to repeat for stress, it is
respective claims. 6
claimed that a foreigner is holding a public office.
xxx
We also note in his Reply, the petitioner says:
While it is the fault of the petitioner for appealing to the wrong court and thereby
allowing the period for appeal to lapse, the more correct procedure was for the
respondent court to forward the case to the proper court which was the Court of
Appeals for appropriate action. Considering, however, the length of time that this
case has been pending, we apply the rule in the case of Del Castillo v. Jaymalin,
(112 SCRA 629) and follow the principle enunciated in Alger Electric, Inc. v. Court
of Appeals, (135 SCRA 37) which states:
... it is a cherished rule of procedure for this Court to always
strive to settle the entire controversy in a single proceeding
leaving no root or branch to bear the seeds of future
litigation. No useful purpose will be served if this case is
remanded to the trial court only to have its decision raised
again to the Intermediate Appellate Court and from there to
this Court. (p. 43)
Only recently in the case of Beautifont, Inc., et al. v. Court of Appeals, et al. (G.R.
No. 50141, January 29, 1988), we stated that:
... But all those relevant facts are now before this Court. And those facts dictate
the rendition of a verdict in the petitioner's favor. There is therefore no point in
referring the case back to the Court of Appeals. The facts and the legal
propositions involved will not change, nor should the ultimate judgment.
Considerable time has already elapsed and, to serve the ends of justice, it is time
that the controversy is finally laid to rest. (See Sotto v. Samson, 5 SCRA 733;
Republic v. Paredes, 108 Phil. 57; Lianga Lumber Co. v. Lianga Timber Co., Inc., 76
SCRA 197; Erico v. Heirs of Chigas, 98 SCRA 575; Francisco v. City of Davao, 12
SCRA 628; Valencia v. Mabilangan, 105 Phil. 162).lwph1.t Sound practice seeks
to accommodate the theory which avoids waste of time, effort and expense, both
to the parties and the government, not to speak of delay in the disposal of the
case (cf. Fernandez v. Garcia, 92 Phil. 592, 597). A marked characteristic of our
judicial set-up is that where the dictates of justice so demand ... the Supreme
Court should act, and act with finality.' (Li Siu Liat v. Republic, 21 SCRA 1039, 1046,
citing Samal v. CA, 99 Phil. 230 and U.S. v. Gimenez, 34 Phil. 74). In this case, the
dictates of justice do demand that this Court act, and act with finality. 7
xxx
Remand of the case to the lower court for further reception of evidence is not
necessary where the court is in a position to resolve the dispute based on the
records before it. On many occasions, the Court, in the public interest and the
expeditious administration of justice, has resolved actions on the merits instead of
remanding them to the trial court for further proceedings, such as where the ends
of justice would not be subserved by the remand of the case or when public
interest demands an early disposition of the case or where the trial court had
already received all the evidence of the parties. 8
In adopting private respondent's comment, respondent COMELEC implicitly
adopted as "its own" private respondent's repeated assertion that petitioner is no
 longer a Filipino citizen. In so doing, has not respondent COMELEC effectively
disqualified itself, by reason of prejudgment, from resolving the petition for quo
warranto filed by private respondent still pending before it? 9
This is still another reason why the Court has seen fit to rule directly on the merits of this case.
Going over the record, we find that there are two administrative decisions on the question of the
petitioner's citizenship. The first was rendered by the Commission on Elections on May 12, 1982, and
found the petitioner to be a citizen of the Philippines. 10 The second was rendered by the Commission on
Immigration and Deportation on September 13, 1988, and held that the petitioner was not a citizen of
the Philippines. 11
The first decision was penned by then COMELEC Chigas, Vicente Santiago, Jr., with Commissioners
Pabalate Savellano and Opinion concurring in full and Commissioner Bacungan concurring in the
dismissal of the petition "without prejudice to the issue of the respondent's citizenship being raised
anew in a proper case." Commissioner Sagadraca reserved his vote, while Commissioner Felipe was for
deferring decision until representations shall have been made with the Australian Embassy for official
verification of the petitioner's alleged naturalization as an Australian.
The second decision was unanimously rendered by Chairman Miriam Defensor-Santiago and
Commissioners Alano and Geraldez of the Commission on Immigration and Deportation. It is important
to observe that in the proceeding before the COMELEC, there was no direct proof that the herein
petitioner had been formally naturalized as a citizen of Australia. This conjecture, which was eventually
rejected, was merely inferred from the fact that he had married an Australian citizen, obtained an
Australian passport, and registered as an alien with the CID upon his return to this country in 1980.
On the other hand, the decision of the CID took into account the official statement of the Australian
Government dated August 12, 1984, through its Consul in the Philippines, that the petitioner was still an
Australian citizen as of that date by reason of his naturalization in 1976. That statement 12 is reproduced
in full as follows:
I, GRAHAM COLIN WEST, Consul of Australia in the Philippines, by virtue of a certificate of appointment
signed and sealed by the Australian Minister of State for Foreign Affairs on 19 October 1983, and
recognized as such by Letter of Patent signed and sealed by the Philippines Acting Minister of Foreign
Affairs on 23 November 1983, do hereby provide the following statement in response to the subpoena
Testificandum dated 9 April 1984 in regard to the Petition for disqualification against RAMON LABO, JR. Y
LOZANO (SPC No. 84-73), and do hereby certify that the statement is true and correct.
STATEMENT
A) RAMON LABO, JR. Y LOZANO, date of birth 23 December 1934, was married in
the Philippines to an Australian citizen. As the spouse of an Australian citizen, he
was not required to meet normal requirements for the grant of citizenship and
was granted Australian citizenship by Sydney on 28 July 1976.
B) Any person over the age of 16 years who is granted Australian citizenship must
take an oath of allegiance or make an affirmation of allegiance. The wording of the
oath of affirmation is: "I ..., renouncing all other allegiance ..." etc. This need not
necessarily have any effect on his former nationality as this would depend on the
citizenship laws of his former country.
C) The marriage was declared void in the Australian Federal Court in Sydney on 27
June 1980 on the ground that the marriage had been bigamous.
D) According to our records LABO is still an Australian citizen.
E) Should he return to Australia, LABO may face court action in respect of Section
50 of Australian Citizenship Act 1948 which relates to the giving of false or
misleading information of a material nature in respect of an application for
Australian citizenship. If such a prosecution was successful, he could be deprived
of Australian citizenship under Section 21 of the Act.
F) There are two further ways in which LABO could divest himself of Australian
citizenship:
(i) He could make a declaration of Renunciation of Australian citizenship under
Section 18 of the Australian Citizenship Act, or
(ii) If he acquired another nationality, (for example, Filipino) by a formal and
voluntary act other than marriage, then he would automatically lose as Australian
citizenship under Section 17 of the Act.
IN WITNESS WHEREOF, I HAVE HEREUNTO SET MAY HAND AND SEAL OF THE
AUSTRALIAN EMBASSY, MANILA, THIS 12th DAY OF APRIL 1984. DONE AT MANILA
IN THE PHILIPPINES.
(Signed) GRAHAM C. WEST Consul
This was affirmed later by the letter of February 1, 1988, addressed to the private
respondent by the Department of Foreign Affairs reading as follows: 13
Sir:
With reference to your letter dated 1 February 1988, I wish to inform you that
inquiry made with the Australian Government through the Embassy of the
Philippines in Canberra has elicited the following information:
1) That Mr. Ramon L. Labo, Jr. acquired Australian citizenship on 28 July 1976.
2) That prior to 17 July 1986, a candidate for Australian citizenship had to either
swear an oath of allegiance or make an affirmation of allegiance which carries a
renunciation of "all other allegiance.
Very truly yours, For the Secretary of Foreign Affairs: (SGD) RODOLFO SEVERINO,
JR. Assistant Secretary
The decision also noted the oath of allegiance taken by every naturalized Australian reading as follows:
OATH OF ALLEGIANCE
 I, A.B., renouncing all other allegiance, swear by Almighty God that I will be faithful
and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia,
Her heirs and successors according to law, and that I will faithfully observe the
laws of Australia and fulfill my duties as an Australian citizen. 14
and the Affirmation of Allegiance, which declares:
AFFIRMATION OF ALLEGIANCE
I, A.B., renouncing all other allegiance, solemnly and sincerely promise and declare
that I will be faithful and bear true allegiance to Her Majesty Elizabeth the Second,
Queen of Australia, Her heirs and successors according to law, and that I will
faithfully observe the Laws of Australia and fulfill my duties as an Australian
citizen. 15
The petitioner does not question the authenticity of the above evidence. Neither does he deny that he
obtained Australian Passport No. 754705, which he used in coming back to the Philippines in 1980, when
he declared before the immigration authorities that he was an alien and registered as such under Alien
Certificate of Registration No. B-323985. 16 He later asked for the change of his status from immigrant to
a returning former Philippine citizen and was granted Immigrant Certificate of Residence No.
223809. 17 He also categorically declared that he was a citizen of Australia in a number of sworn
statements voluntarily made by him and. even sought to avoid the jurisdiction of the barangay court on
the ground that he was a foreigner. 18
The decision of the COMELEC in 1982 quaintly dismisses all these acts as "mistakes" that did not divest
the petitioner of his citizenship, although, as earlier noted, not all the members joined in this finding. We
reject this ruling as totally baseless. The petitioner is not an unlettered person who was not aware of the
consequences of his acts, let alone the fact that he was assisted by counsel when he performed these
acts.
The private respondent questions the motives of the COMELEC at that time and stresses Labo's political
affiliation with the party in power then, but we need not go into that now.
There is also the claim that the decision can no longer be reversed because of the doctrine of res
judicata, but this too must be dismissed. This doctrine does not apply to questions of citizenship, as the
Court has ruled in several cases. 19 Moreover, it does not appear that it was properly and seasonably
pleaded, in a motion to dismiss or in the answer, having been invoked only when the petitioner filed his
reply 20 to the private respondent's comment. Besides, one of the requisites of res judicata, to wit,
identity of parties, is not present in this case.
The petitioner's contention that his marriage to an Australian national in 1976 did not automatically
divest him of Philippine citizenship is irrelevant. There is no claim or finding that he automatically ceased
to be a Filipino because of that marriage. He became a citizen of Australia because he was naturalized as
such through a formal and positive process, simplified in his case because he was married to an
Australian citizen. As a condition for such naturalization, he formally took the Oath of Allegiance and/or
made the Affirmation of Allegiance, both quoted above. Renouncing all other allegiance, he swore "to be
faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia ..." and to fulfill
his duties "as an Australian citizen."
The petitioner now claims that his naturalization in Australia made him at worst only a dual national and
did not divest him of his Philippine citizenship. Such a specious argument cannot stand against the clear
provisions of CA No. 63, which enumerates the modes by which Philippine citizenship may be lost.
Among these are: (1) naturalization in a foreign country; (2) express renunciation of citizenship; and (3)
subscribing to an oath of allegiance to support the Constitution or laws of a foreign country, all of which
are applicable to the petitioner. It is also worth mentioning in this connection that under Article IV,
Section 5, of the present Constitution, "Dual allegiance of citizens is inimical to the national interest and
shall be dealt with by law."
Even if it be assumed that, as the petitioner asserts, his naturalization in Australia was annulled after it
was found that his marriage to the Australian citizen was bigamous, that circumstance alone did not
automatically restore his Philippine citizenship. His divestiture of Australian citizenship does not concern
us here. That is a matter between him and his adopted country. What we must consider is the fact that
he voluntarily and freely rejected Philippine citizenship and willingly and knowingly embraced the
citizenship of a foreign country. The possibility that he may have been subsequently rejected by
Australia, as he claims, does not mean that he has been automatically reinstated as a citizen of the
Philippines.
Under CA No. 63 as amended by PD No. 725, Philippine citizenship may be reacquired by direct act of
Congress, by naturalization, or by repatriation. It does not appear in the record, nor does the petitioner
claim, that he has reacquired Philippine citizenship by any of these methods. He does not point to any
judicial decree of naturalization as to any statute directly conferring Philippine citizenship upon him.
Neither has he shown that he has complied with PD No. 725, providing that:
... (2) natural-born Filipinos who have lost their Philippine citizenship may
reacquire Philippine citizenship through repatriation by applying with the Special
Committee on Naturalization created by Letter of Instruction No. 270, and, if their
applications are approved, taking the necessary oath of allegiance to the Republic
of the Philippines, after which they shall be deemed to have reacquired Philippine
citizenship. The Commission on Immigration and Deportation shall thereupon
cancel their certificate of registration. (Emphasis supplied.)
That is why the Commission on Immigration and Deportation rejected his application for the cancellation
of his alien certificate of registration. And that is also the reason we must deny his present claim for
recognition as a citizen of the Philippines.
The petitioner is not now, nor was he on the day of the local elections on January 18, 1988, a citizen of
the Philippines. In fact, he was not even a qualified voter under the Constitution itself because of his
alienage. 21 He was therefore ineligible as a candidate for mayor of Baguio City, under Section 42 of the
Local Government Code providing in material part as follows:
Sec. 42. Qualifications. An elective local official must be a citizen of the
Philippines, at least twenty-three years of age on election day, a qualified voter
registered as such in the barangay, municipality, city or province where he
proposes to be elected, a resident therein for at least one year at the time of the
filing of his certificate of candidacy, and able to read and write English, Filipino, or
any other local language or dialect.
The petitioner argues that his alleged lack of citizenship is a "futile technicality" that should not frustrate
the will of the electorate of Baguio City, who elected him by a "resonant and thunderous majority." To
be accurate, it was not as loud as all that, for his lead over the second-placer was only about 2,100 votes.
In any event, the people of that locality could not have, even unanimously, changed the requirements of
the Local Government Code and the Constitution. The electorate had no power to permit a foreigner
owing his total allegiance to the Queen of Australia, or at least a stateless individual owing no allegiance
to the Republic of the Philippines, to preside over them as mayor of their city. Only citizens of the It remains to stress that the citizen of the Philippines must take pride in his status as such and cherish
Philippines have that privilege over their countrymen. this priceless gift that, out of more than a hundred other nationalities, God has seen fit to grant him.
Having been so endowed, he must not lightly yield this precious advantage, rejecting it for another land
that may offer him material and other attractions that he may not find in his own country. To be sure, he
The probability that many of those who voted for the petitioner may have done so in the belief that he
has the right to renounce the Philippines if he sees fit and transfer his allegiance to a state with more
was qualified only strengthens the conclusion that the results of the election cannot nullify the
allurements for him. 33 But having done so, he cannot expect to be welcomed back with open arms once
qualifications for the office now held by him. These qualifications are continuing requirements; once any
his taste for his adopted country turns sour or he is himself disowned by it as an undesirable alien.
of them is lost during incumbency, title to the office itself is deemed forfeited. In the case at bar, the
citizenship and voting requirements were not subsequently lost but were not possessed at all in the first
place on the day of the election. The petitioner was disqualified from running as mayor and, although Philippine citizenship is not a cheap commodity that can be easily recovered after its renunciation. It may
elected, is not now qualified to serve as such. be restored only after the returning renegade makes a formal act of re-dedication to the country he has
abjured and he solemnly affirms once again his total and exclusive loyalty to the Republic of the
Philippines. This may not be accomplished by election to public office.
Finally, there is the question of whether or not the private respondent, who filed the quo
warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that as he
obtained only the second highest number of votes in the election, he was obviously not the choice of the WHEREFORE, petitioner Ramon J. Labo, Jr. is hereby declared NOT a citizen of the Philippines and
people of Baguio city. therefore DISQUALIFIED from continuing to serve as Mayor of Baguio City. He is ordered to VACATE his
office and surrender the same to the Vice-Mayor of Baguio City, once this decision becomes final and
executory. The temporary restraining order dated January 31, 1989, is LIFTED.
The latest ruling of the Court on this issue is Santos v. Commission on Elections 22 decided in 1985. In that
case, the candidate who placed second was proclaimed elected after the votes for his winning rival, who
was disqualified as a turncoat and considered a non-candidate, were all disregarded as stray. In effect,
the second placer won by default. That decision was supported by eight members of the Court
then 23 with three dissenting 24 and another two reserving their vote. 25 One was on official leave. 26

Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the
earlier case ofGeronimo v. Ramos, 27 Which represents the more logical and democratic rule. That case,
which reiterated the doctrine first announced in 1912 in Topacio vs. Paredes 28 was supported by ten
members of the Court 29 without any dissent, although one reserved his vote, 30 another took no
part 31 and two others were on leave. 32 There the Court held:

... it would be extremely repugnant to the basic concept of the constitutionally

guaranteed right to suffrage if a candidate who has not acquired the majority or
plurality of votes is proclaimed a winner and imposed as the representative of a
constituency, the majority of which have positively declared through their ballots
that they do not choose him.

Sound policy dictates that public elective offices are filled by those who have
received the highest number of votes cast in the election for that office, and it is a
fundamental Idea in all republican forms of government that no one can be
declared elected and no measure can be declared carried unless he or it receives a
majority or plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S
243, p. 676.)

The fact that the candidate who obtained the highest number of votes is later
declared to be disqualified or not eligible for the office to which he was elected
does not necessarily entitle the candidate who obtained the second highest
number of votes to be declared the winner of the elective office. The votes cast for
a dead, disqualified, or non-eligible person may not be valid to vote the winner
into office or maintain him there. However, in the absence of a statute which
clearly asserts a contrary political and legislative policy on the matter, if the votes
were cast in the sincere belief that the candidate was alive, qualified, or eligible,
they should not be treated as stray, void or meaningless.
Republic of the Philippines The lifting of the Temporary Restraining Order issued by the Court on 7 December 1988 is urgently
SUPREME COURT sought by respondent Commissioner who was ordered to cease and desist from immediately deporting
Manila petitioner Yu pending the conclusion of hearings before the Board of Special Inquiry, CID. To finally
dispose of the case, the Court will likewise rule on petitioner's motion for clarification with prayer for
restraining order dated 5 December 1988, 9urgent motion for release from arbitrary detention dated 13
EN BANC
December 1988, 10 the memorandum in furtherance of said motion for release dated 14 December
1988, 11 motion to set case for oral argument dated 8 December 1988. 12
G.R. No. L-83882 January 24, 1989
Acting on the motion to lift the temporary restraining order (issued on 7 December 1988) dated 9
IN RE PETITION FOR HABEAS CORPUS OF WILLIE YU, petitioner, December 1988,13 and the vigorous opposition to lift restraining order dated 15 December 1988, 14 the
vs. Court resolved to give petitioner Yu a non-extendible period of three (3) days from notice within which
MIRIAM DEFENSOR-SANTIAGO, BIENVENIDO P. ALANO, JR., MAJOR PABALAN, DELEO HERNANDEZ, to explain and prove why he should still be considered a citizen of the Philippines despite his acquisition
BLODDY HERNANDEZ, BENNY REYES and JUN ESPIRITU SANTO, respondent. and use of a Portuguese passport. 15

Pelaez, Adriano and Gregorio and Bonifacio A. Alentajan for petitioner. Petitioner filed his compliance with the resolution of 15 December 1988 on 20 December
1988 16 followed by an earnest request for temporary release on 22 December 1988. Respondent filed on
Chavez, Hechanova & Lim Law Offices collaborating counsel for petitioner. 2 January 1989 her comment reiterating her previous motion to lift temporary restraining order.
Petitioner filed a reply thereto on 6 January 1989.

Augusto Jose y. Arreza for respondents.

PADILLA, J.:
The present controversy originated with a petition for habeas corpus filed with the Court on 4 July 1988
seeking the release from detention of herein petitioner. 1 After manifestation and motion of the Solicitor
General of his decision to refrain from filing a return of the writ on behalf of the CID, respondent
Commissioner thru counsel filed the return. 2 Counsel for the parties were heard in oral argument on 20
July 1988. The parties were allowed to submit marked exhibits, and to file memoranda. 3 An internal
resolution of 7 November 1988 referred the case to the Court en banc. In its 10 November 1988
resolution, denying the petition for habeas corpus, the Court disposed of the pending issues of (1)
jurisdiction of the CID over a naturalized Filipino citizen and (2) validity of warrantless arrest and
detention of the same person.
Petitioner filed a motion for reconsideration with prayer for restraining order dated 24 November
1988. 4 On 29 November 1988, the Court resolved to deny with finality the aforesaid motion for
reconsideration, and further resolved to deny the urgent motion for issuance of a restraining order dated
28 November 1988. 5
Petitioner's own compliance reveals that he was originally issued a Portuguese passport in 1971, 17 valid
for five (5) years and renewed for the same period upon presentment before the proper Portuguese
consular officer. Despite his naturalization as a Philippine citizen on 10 February 1978, on 21 July 1981,
petitioner applied for and was issued Portuguese Passport No. 35/81 serial N. 1517410 by the Consular
Section of the Portuguese Embassy in Tokyo. Said Consular Office certifies that his Portuguese passport
expired on 20 July 1986. 18 While still a citizen of the Philippines who had renounced, upon his
naturalization, "absolutely and forever all allegiance and fidelity to any foreign prince, potentate, state or
sovereignty" and pledged to "maintain true faith and allegiance to the Republic of the Philippines," 19 he
declared his nationality as Portuguese in commercial documents he signed, specifically, the Companies
registry of Tai Shun Estate Ltd.20 filed in Hongkong sometime in April 1980.
To the mind of the Court, the foregoing acts considered together constitute an express renunciation of
petitioner's Philippine citizenship acquired through naturalization. In Board of Immigration
Commissioners us, Go Gallano, 21express renunciation was held to mean a renunciation that is made
known distinctly and explicitly and not left to inference or implication. Petitioner, with full knowledge,
and legal capacity, after having renounced Portuguese citizenship upon naturalization as a Philippine
citizen 22 resumed or reacquired his prior status as a Portuguese citizen, applied for a renewal of his
Portuguese passport 23 and represented himself as such in official documents even after he had become
a naturalized Philippine citizen. Such resumption or reacquisition of Portuguese citizenship is grossly
inconsistent with his maintenance of Philippine citizenship.

Undaunted, petitioner filed a motion for clarification with prayer for restraining order on 5 December
1988.
Acting on said motion, a temporary restraining order was issued by the Court on 7 December
1988. 6 Respondent Commissioner filed a motion to lift TRO on 13 December 1988, the basis of which is a
summary judgment of deportation against Yu issued by the CID Board of Commissioners on 2 December
1988. 7 Petitioner also filed a motion to set case for oral argument on 8 December 1988.
In the meantime, an urgent motion for release from arbitrary detention 8 was filed by petitioner on 13
December 1988. A memorandum in furtherance of said motion for release dated 14 December 1988 was
filed on 15 December 1988 together with a vigorous opposition to the lifting of the TRO.
This Court issued the aforementioned TRO pending hearings with the Board of Special Inquiry, CID.
However, pleadings submitted before this Court after the issuance of said TRO have unequivocally
shown that petitioner has expressly renounced his Philippine citizenship. The material facts are not only
established by the pleadings they are not disputed by petitioner. A rehearing on this point with the
CID would be unnecessary and superfluous. Denial, if any, of due process was obviated when petitioner
was given by the Court the opportunity to show proof of continued Philippine citizenship, but he has
failed.
While normally the question of whether or not a person has renounced his Philippine citizenship should
be heard before a trial court of law in adversary proceedings, this has become unnecessary as this Court,
no less, upon the insistence of petitioner, had to look into the facts and satisfy itself on whether or not
petitioner's claim to continued Philippine citizenship is meritorious.
Philippine citizenship, it must be stressed, is not a commodity or were to be displayed when required
and suppressed when convenient. This then resolves adverse to the petitioner his motion for clarification
and other motions mentioned in the second paragraph, page 3 of this Decision.

WHEREFORE, premises considered, petitioner's motion for release from detention is DENIED.
Respondent's motion to lift the temporary restraining order is GRANTED. This Decision is immediately
executory.

SO ORDERED.
Republic of the Philippines Division, 1 promulgated on December 19, 1995 2 and another Resolution of the Comelec en
SUPREME COURT banc promulgated February 23, 1996 3 denying petitioner's motion for reconsideration.
Manila
The Facts
EN BANC
On March 20, 1995, private respondent Juan G. Frivaldo filed his Certificate of Candidacy for the office of
Governor of Sorsogon in the May 8, 1995 elections. On March 23, 1995, petitioner Raul R. Lee, another
candidate, filed a petition 4 with the Comelec docketed as SPA No. 95-028 praying that Frivaldo "be
disqualified from seeking or holding any public office or position by reason of not yet being a citizen of
G.R. No. 120295 June 28, 1996
the Philippines", and that his Certificate of Candidacy be canceled. On May 1, 1995, the Second Division
of the Comelec promulgated a Resolution 5 granting the petition with the following disposition 6:
JUAN G. FRIVALDO, petitioner,
vs.
WHEREFORE, this Division resolves to GRANT the petition and declares that
COMMISSION ON ELECTIONS, and RAUL R. LEE, respondents.
respondent is DISQUALIFIED to run for the Office of Governor of Sorsogon on the
ground that he is NOT a citizen of the Philippines. Accordingly, respondent's
G.R. No. 123755 June 28, 1996 certificate of candidacy is canceled.

RAUL R. LEE, petitioner, The Motion for Reconsideration filed by Frivaldo remained unacted upon until after the May 8, 1995
vs. elections. So, his candidacy continued and he was voted for during the elections held on said date. On
COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents. May 11, 1995, the Comelec en banc 7 affirmed the aforementioned Resolution of the Second Division.

The Provincial Board of Canvassers completed the canvass of the election returns and a Certificate of
Votes 8dated May 27, 1995 was issued showing the following votes obtained by the candidates for the
PANGANIBAN, J.:p position of Governor of Sorsogon:

The ultimate question posed before this Court in these twin cases is: Who should be declared the rightful Antonio H. Escudero, Jr. 51,060
governor of Sorsogon -
Juan G. Frivaldo 73,440
(i) Juan G. Frivaldo, who unquestionably obtained the highest number of votes in three successive
elections but who was twice declared by this Court to be disqualified to hold such office due to his alien Raul R. Lee 53,304
citizenship, and who now claims to have re-assumed his lost Philippine citizenship thru repatriation;
Isagani P. Ocampo 1,925
(ii) Raul R. Lee, who was the second placer in the canvass, but who claims that the votes cast in favor of
Frivaldo should be considered void; that the electorate should be deemed to have intentionally thrown
On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental) petition 9 praying for his proclamation
away their ballots; and that legally, he secured the most number of valid votes; or
as the duly-elected Governor of Sorsogon.

(iii) The incumbent Vice-Governor, Oscar G. Deri, who obviously was not voted directly to the position of
governor, but who according to prevailing jurisprudence should take over the said post inasmuch as, by
the ineligibility of Frivaldo, a "permanent vacancy in the contested office has occurred"?
In ruling for Frivaldo, the Court lays down new doctrines on repatriation, clarifies/reiterates/amplifies
existing jurisprudence on citizenship and elections, and upholds the superiority of substantial justice over
pure legalisms.
G.R. No. 123755
This is a special civil action under Rules 65 and 58 of the Rules of Court for certiorari and preliminary
injunction to review and annul a Resolution of the respondent Commission on Elections (Comelec), First
In an order 10 dated June 21, 1995, but promulgated according to the petition "only on June 29, 1995,"
the Comelec en banc directed "the Provincial Board of Canvassers of Sorsogon to reconvene for the
purpose of proclaiming candidate Raul Lee as the winning gubernatorial candidate in the province of
Sorsogon on June 29, 1995 . . ." Accordingly, at 8:30 in the evening of June 30, 1995, Lee was proclaimed
governor of Sorsogon.
On July 6, 1995, Frivaldo filed with the Comelec a new petition, 11 docketed as SPC No. 95-317, praying
for the annulment of the June 30, 1995 proclamation of Lee and for his own proclamation. He alleged
that on June 30, 1995, at 2:00 in the afternoon, he took his oath of allegiance as a citizen of the
Philippines after "his petition for repatriation under P.D. 725 which he filed with the Special Committee
on Naturalization in September 1994 had been granted". As such, when "the said order (dated June 21,
1995) (of the Comelec) . . . was released and received by Frivaldo on June 30, 1995 at 5:30 o'clock in the
evening, there was no more legal impediment to the proclamation (of Frivaldo) as governor . . ." In the
alternative, he averred that pursuant to the two cases of Labo vs. Comelec, 12 the Vice-Governor - not Lee
- should occupy said position of governor.
On December 19, 1995, the Comelec First Division promulgated the herein assailed Resolution 13 holding
that Lee, "not having garnered the highest number of votes," was not legally entitled to be proclaimed as
duly-elected governor; and that Frivaldo, "having garnered the highest number of votes,
and . . . having reacquired his Filipino citizenship by repatriation on June 30, 1995 under the provisions of
Presidential Decree No. 725 . . . (is) qualified to hold the office of governor of Sorsogon"; thus:
PREMISES CONSIDERED, the Commission (First Division), therefore RESOLVES to
GRANT the Petition.
Consistent with the decisions of the Supreme Court, the proclamation of Raul R.
Lee as Governor of Sorsogon is hereby ordered annulled, being contrary to law, he
not having garnered the highest number of votes to warrant his proclamation.
Upon the finality of the annulment of the proclamation of Raul R. Lee, the
Provincial Board of Canvassers is directed to immediately reconvene and, on the
basis of the completed canvass, proclaim petitioner Juan G. Frivaldo as the duly
elected Governor of Sorsogon having garnered the highest number of votes, and
he having reacquired his Filipino citizenship by repatriation on June 30, 1995 under
the provisions of Presidential Decree No. 725 and, thus, qualified to hold the office
of Governor of Sorsogon.
Conformably with Section 260 of the Omnibus Election Code (B.P. Blg. 881), the
Clerk of the Commission is directed to notify His Excellency the President of the
Philippines, and the Secretary of the Sangguniang Panlalawigan of the Province of
Sorsogon of this resolution immediately upon the due implementation thereof.
On December 26, 1995, Lee filed a motion for reconsideration which was denied by the Comelec en
banc in its Resolution 14 promulgated on February 23, 1996. On February 26, 1996, the present petition
was filed. Acting on the prayer for a temporary restraining order, this Court issued on February 27, 1996
a Resolution which inter alia directed the parties "to maintain the status quo prevailing prior to the filing
of this petition."
The Issues in G.R. No. 123755
Petitioner Lee's "position on the matter at hand may briefly be capsulized in the following
propositions" 15:
First -- The initiatory petition below was so far insufficient in form and substance
to warrant the exercise by the COMELEC of its jurisdiction with the result that, in
effect, the COMELEC acted without jurisdiction in taking cognizance of and
deciding said petition;
Second -- The judicially declared disqualification of respondent was a continuing
condition and rendered him ineligible to run for, to be elected to and to hold the
Office of Governor;
Third -- The alleged repatriation of respondent was neither valid nor is the effect
thereof retroactive as to cure his ineligibility and qualify him to hold the Office of
Governor; and
Fourth -- Correctly read and applied, the Labo Doctrine fully supports the validity
of petitioner's proclamation as duly elected Governor of Sorsogon.
G.R. No. 120295
This is a petition to annul three Resolutions of the respondent Comelec, the first two of which are also at
issue in G.R. No. 123755, as follows:
1. Resolution 16 of the Second Division, promulgated on May 1, 1995, disqualifying
Frivaldo from running for governor of Sorsogon in the May 8, 1995 elections "on
the ground that he is not a citizen of the Philippines";
2. Resolution 17 of the Comelec en banc, promulgated on May 11, 1995; and
3. Resolution 18 of the Comelec en banc, promulgated also on May 11, 1995
suspending the proclamation of, among others, Frivaldo.
The Facts and the Issue
The facts of this case are essentially the same as those in G.R. No. 123755. However, Frivaldo assails the
above-mentioned resolutions on a different ground: that under Section 78 of the Omnibus Election
Code, which is reproduced hereinunder:
Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. -- A
verified petition seeking to deny due course or to cancel a certificate of candidacy
may be filed by any person exclusively on the ground that any material
representation contained therein as required under Section 74 hereof is false. The
petition may be filed at any time not later than twenty-five days from the time of
the filing of the certificate of candidacy and shall be decided, after notice and
hearing, not later than fifteen days before the election. (Emphasis supplied.)
the Comelec had no jurisdiction to issue said Resolutions because they were not rendered
"within the period allowed by law" i.e., "not later than fifteen days before the election."
Otherwise stated, Frivaldo contends that the failure of the Comelec to act on the petition for
disqualification within the period of fifteen days prior to the election as provided by law is a jurisdictional
defect which renders the said Resolutions null and void.
By Resolution on March 12, 1996, the Court consolidated G.R. Nos. 120295 and 123755 since they are
intimately related in their factual environment and are identical in the ultimate question raised, viz., who
should occupy the position of governor of the province of Sorsogon.
On March 19, 1995, the Court heard oral argument from the parties and required them thereafter to file
simultaneously their respective memoranda.
 The Consolidated Issues
From the foregoing submissions, the consolidated issues may be restated as follows:
1. Was the repatriation of Frivaldo valid and legal? If so, did it seasonably cure his lack of citizenship as to
qualify him to be proclaimed and to hold the Office of Governor? If not, may it be given retroactive
effect? If so, from when?
2. Is Frivaldo's "judicially declared" disqualification for lack of Filipino citizenship a continuing bar to his
eligibility to run for, be elected to or hold the governorship of Sorsogon?
3. Did the respondent Comelec have jurisdiction over the initiatory petition in SPC No. 95-317
considering that said petition is not "a pre-proclamation case, an election protest or a quo
warranto case"?
4. Was the proclamation of Lee, a runner-up in the election, valid and legal in light of existing
jurisprudence?
5. Did the respondent Commission on Elections exceed its jurisdiction in promulgating the assailed
Resolutions, all of which prevented Frivaldo from assuming the governorship of Sorsogon, considering
that they were not rendered within the period referred to in Section 78 of the Omnibus Election
Code, viz., "not later than fifteen days before the elections"?
The First Issue: Frivaldo's Repatriation
The validity and effectivity of Frivaldo's repatriation is the lis mota, the threshold legal issue in this case.
All the other matters raised are secondary to this.
The Local Government Code of 1991 19 expressly requires Philippine citizenship as a qualification for
elective local officials, including that of provincial governor, thus:
Sec. 39. Qualifications. -- (a) An elective local official must be a citizen of the
Philippines; a registered voter in the barangay, municipality, city, or province or, in
the case of a member of the sangguniang panlalawigan, sangguniang panlungsod,
or sangguniang bayan, the district where he intends to be elected; a resident
therein for at least one (1) year immediately preceding the day of the election; and
able to read and write Filipino or any other local language or dialect.
(b) Candidates for the position of governor, vice governor or
member of the sangguniang panlalawigan, or mayor, vice
mayor or member of the sangguniang panlungsod of highly
urbanized cities must be at least twenty-three (23) years of
age on election day.
xxx xxx xxx
Inasmuch as Frivaldo had been declared by this Court 20 as a non-citizen, it is therefore incumbent upon
him to show that he has reacquired citizenship; in fine, that he possesses the qualifications prescribed
under the said statute (R.A. 7160).
Under Philippine law, 21 citizenship may be reacquired by direct act of Congress, by naturalization or by
repatriation. Frivaldo told this Court in G.R. No. 104654 22 and during the oral argument in this case that
he tried to resume his citizenship by direct act of Congress, but that the bill allowing him to do so "failed
to materialize, notwithstanding the endorsement of several members of the House of Representatives"
due, according to him, to the "maneuvers of his political rivals." In the same case, his attempt
at naturalization was rejected by this Court because of jurisdictional, substantial and procedural defects.
Despite his lack of Philippine citizenship, Frivaldo was overwhelmingly elected governor by the electorate
of Sorsogon, with a margin of 27,000 votes in the 1988 elections, 57,000 in 1992, and 20,000 in 1995
over the same opponent Raul Lee. Twice, he was judicially declared a non-Filipino and thus twice
disqualified from holding and discharging his popular mandate. Now, he comes to us a third time, with a
fresh vote from the people of Sorsogon and a favorable decision from the Commission on Elections to
boot. Moreover, he now boasts of having successfully passed through the third and last mode of
reacquiring citizenship: by repatriation under P.D. No. 725, with no less than the Solicitor General
himself, who was the prime opposing counsel in the previous cases he lost, this time, as counsel for co-
respondent Comelec, arguing the validity of his cause (in addition to his able private counsel Sixto S.
Brillantes, Jr.). That he took his oath of allegiance under the provisions of said Decree at 2:00 p.m. on
June 30, 1995 is not disputed. Hence, he insists that he -- not Lee -- should have been proclaimed as the
duly-elected governor of Sorsogon when the Provincial Board of Canvassers met at 8:30 p.m. on the said
date since, clearly and unquestionably, he garnered the highest number of votes in the elections and
since at that time, he already reacquired his citizenship.
En contrario, Lee argues that Frivaldo's repatriation is tainted with serious defects, which we shall now
discuss in seriatim.
First, Lee tells us that P.D. No. 725 had "been effectively repealed", asserting that "then President
Corazon Aquino exercising legislative powers under the Transitory Provisions of the 1987 Constitution,
forbade the grant of citizenship by Presidential Decree or Executive Issuances as the same poses a
serious and contentious issue of policy which the present government, in the exercise of prudence and
sound discretion, should best leave to the judgment of the first Congress under the 1987 Constitution",
adding that in her memorandum dated March 27, 1987 to the members of the Special Committee on
Naturalization constituted for purposes of Presidential Decree No. 725, President Aquino directed them
"to cease and desist from undertaking any and all proceedings within your functional area of
responsibility as defined under Letter of Instructions (LOI) No. 270 dated April 11, 1975, as amended." 23
This memorandum dated March 27, 1987 24 cannot by any stretch of legal hermeneutics be construed as
a law sanctioning or authorizing a repeal of P.D. No. 725. Laws are repealed only by subsequent
ones 25 and a repeal may be express or implied. It is obvious that no express repeal was made because
then President Aquino in her memorandum -- based on the copy furnished us by Lee -- did not
categorically and/or impliedly state that P.D. 725 was being repealed or was being rendered without any
legal effect. In fact, she did not even mention it specifically by its number or text. On the other hand, it is
a basic rule of statutory construction that repeals by implication are not favored. An implied repeal will
not be allowed "unless it is convincingly and unambiguously demonstrated that the two laws are clearly
repugnant and patently inconsistent that they cannot co-exist". 26
The memorandum of then President Aquino cannot even be regarded as a legislative enactment, for not
every pronouncement of the Chief Executive even under the Transitory Provisions of the 1987
Constitution can nor should be regarded as an exercise of her law-making powers. At best, it could be
treated as an executive policy addressed to the Special Committee to halt the acceptance and processing
of applications for repatriation pending whatever "judgment the first Congress under the 1987
Constitution" might make. In other words, the former President did not repeal P.D. 725 but left it to the
first Congress -- once created -- to deal with the matter. If she had intended to repeal such law, she
should have unequivocally said so instead of referring the matter to Congress. The fact is she carefully
couched her presidential issuance in terms that clearly indicated the intention of "the present
government, in the exercise of prudence and sound discretion" to leave the matter of repeal to the new
Congress. Any other interpretation of the said Presidential Memorandum, such as is now being proffered
to the Court by Lee, would visit unmitigated violence not only upon statutory construction but on
common sense as well.
Second, Lee also argues that "serious congenital irregularities flawed the repatriation proceedings,"
asserting that Frivaldo's application therefor was "filed on June 29, 1995 . . . (and) was approved in just
one day or on June 30, 1995 . . .", which "prevented a judicious review and evaluation of the merits
thereof." Frivaldo counters that he filed his application for repatriation with the Office of the President in
Malacaang Palace on August 17, 1994. This is confirmed by the Solicitor General. However, the Special
Committee was reactivated only on June 8, 1995, when presumably the said Committee started
processing his application. On June 29, 1995, he filled up and re-submitted the FORM that the
Committee required. Under these circumstances, it could not be said that there was "indecent haste" in
the processing of his application.
Anent Lee's charge that the "sudden reconstitution of the Special Committee on Naturalization was
intended solely for the personal interest of respondent," 27 the Solicitor General explained during the
oral argument on March 19, 1996 that such allegation is simply baseless as there were many others who
applied and were considered for repatriation, a list of whom was submitted by him to this Court, through
a Manifestation 28 filed on April 3, 1996.
On the basis of the parties' submissions, we are convinced that the presumption of regularity in the
performance of official duty and the presumption of legality in the repatriation of Frivaldo have not been
successfully rebutted by Lee. The mere fact that the proceedings were speeded up is by itself not a
ground to conclude that such proceedings were necessarily tainted. After all, the requirements of
repatriation under P.D. No. 725 are not difficult to comply with, nor are they tedious and cumbersome.
In fact, P.D.
725 29 itself requires very little of an applicant, and even the rules and regulations to implement the said
decree were left to the Special Committee to promulgate. This is not unusual since, unlike in
naturalization where an alien covets a first-timeentry into Philippine political life, in repatriation the
applicant is a former natural-born Filipino who is merely seeking to reacquire his previous citizenship. In
the case of Frivaldo, he was undoubtedly a natural-born citizen who openly and faithfully served his
country and his province prior to his naturalization in the United States -- a naturalization he insists was
made necessary only to escape the iron clutches of a dictatorship he abhorred and could not in
conscience embrace -- and who, after the fall of the dictator and the re-establishment of democratic
space, wasted no time in returning to his country of birth to offer once more his talent and services to
his people.
So too, the fact that ten other persons, as certified to by the Solicitor General, were granted repatriation
argues convincingly and conclusively against the existence of favoritism vehemently posited by Raul Lee.
At any rate, any contest on the legality of Frivaldo's repatriation should have been pursued before the
Committee itself, and, failing there, in the Office of the President, pursuant to the doctrine of exhaustion
of administrative remedies.
Third, Lee further contends that assuming the assailed repatriation to be valid, nevertheless it could only
be effective as at 2:00 p.m. of June 30, 1995 whereas the citizenship qualification prescribed by the Local
Government Code "must exist on the date of his election, if not when the certificate of candidacy is
filed," citing our decision in G.R. 104654 30 which held that "both the Local Government Code and the
Constitution require that only Philippine citizens can run and be elected to public office." Obviously,
however, this was a mere obiter as the only issue in said case was whether Frivaldo's naturalization was
valid or not -- and NOT the effective date thereof. Since the Court held his naturalization to be invalid,
then the issue of when an aspirant for public office should be a citizen was NOT resolved at all by the
Court. Which question we shall now directly rule on.
Under Sec. 39 of the Local Government Code, "(a)n elective local official must be:
* a citizen of the Philippines;
* a registered voter in the barangay, municipality, city, or province . . . where he
intends to be elected;
* a resident therein for at least one (1) year immediately preceding the day of the
election;
* able to read and write Filipino or any other local language or dialect.
* In addition, "candidates for the position of governor . . . must be at least twenty-
three (23) years of age on election day.
From the above, it will be noted that the law does not specify any particular date or time when the
candidate must possess citizenship, unlike that for residence (which must consist of at least one year's
residency immediately preceding the day of election) and age (at least twenty three years of age on
election day).
Philippine citizenship is an indispensable requirement for holding an elective public office, 31 and the
purpose of the citizenship qualification is none other than to ensure that no alien, i.e., no person owing
allegiance to another nation, shall govern our people and our country or a unit of territory thereof. Now,
an official begins to govern or to discharge his functions only upon his proclamation and on the day the
law mandates his term of office to begin. Since Frivaldo re-assumed his citizenship on June 30, 1995 --
the very day 32 the term of office of governor (and other elective officials) began -- he was therefore
already qualified to be proclaimed, to hold such office and to discharge the functions and responsibilities
thereof as of said date. In short, at that time, he was already qualified to govern his native Sorsogon. This
is the liberal interpretation that should give spirit, life and meaning to our law on qualifications
consistent with the purpose for which such law was enacted. So too, even from a literal (as distinguished
from liberal) construction, it should be noted that Section 39 of the Local Government Code speaks of
"Qualifications" of "ELECTIVE OFFICIALS", not of candidates. Why then should such qualification be
required at the time of election or at the time of the filing of the certificates of candidacies, as Lee
insists? Literally, such qualifications -- unless otherwise expressly conditioned, as in the case of age and
residence -- should thus be possessed when the "elective [or elected] official" begins to govern, i.e., at
the time he is proclaimed and at the start of his term -- in this case, on June 30, 1995. Paraphrasing this
Court's ruling in Vasquez vs. Giap and Li Seng Giap & Sons, 33 if the purpose of the citizenship
requirement is to ensure that our people and country do not end up being governed by aliens,i.e.,
persons owing allegiance to another nation, that aim or purpose would not be thwarted but instead
achieved by construing the citizenship qualification as applying to the time of proclamation of the
elected official and at the start of his term.
But perhaps the more difficult objection was the one raised during the oral argument 34 to the effect that
the citizenship qualification should be possessed at the time the candidate (or for that matter the
elected official) registered as a voter. After all, Section 39, apart from requiring the official to be a citizen,
also specifies as another item of qualification, that he be a "registered voter". And, under the law 35 a
"voter" must be a citizen of the Philippines. So therefore, Frivaldo could not have been a voter -- much
less a validly registered one -- if he was not a citizen at the time of such registration.
The answer to this problem again lies in discerning the purpose of the requirement. If the law intended
thecitizenship qualification to be possessed prior to election consistent with the requirement of being a
registered voter, then it would not have made citizenship a SEPARATE qualification. The law abhors a
redundancy. It therefore stands to reason that the law intended CITIZENSHIP to be a qualification distinct
from being a VOTER, even if being a voter presumes being a citizen first. It also stands to reason that the
voter requirement was included as another qualification (aside from "citizenship"), not to reiterate the
need for nationality but to require that the official be registered as a voter IN THE AREA OR TERRITORY
he seeks to govern, i.e., the law states: "a registered voter in the barangay, municipality, city, or province
. . . where he intends to be elected." It should be emphasized that the Local Government Code requires
an elective official to be a registered voter. It does not require him to vote actually. Hence, registration --
not the actual voting -- is the core of this "qualification". In other words, the law's purpose in this second
requirement is to ensure that the prospective official is actually registered in the area he seeks to govern
-- and not anywhere else.
Before this Court, Frivaldo has repeatedly emphasized -- and Lee has not disputed -- that he "was and is a
registered voter of Sorsogon, and his registration as a voter has been sustained as valid by judicial
declaration . . . In fact, he cast his vote in his precinct on May 8, 1995." 36
So too, during the oral argument, his counsel steadfastly maintained that "Mr. Frivaldo has always been
a registered voter of Sorsogon. He has voted in 1987, 1988, 1992, then he voted again in 1995. In fact,
his eligibility as a voter was questioned, but the court dismissed (sic) his eligibility as a voter and he was
allowed to vote as in fact, he voted in all the previous elections including on May 8, 1995." 37
It is thus clear that Frivaldo is a registered voter in the province where he intended to be elected.
There is yet another reason why the prime issue of citizenship should be reckoned from the date of
proclamation, not necessarily the date of election or date of filing of the certificate of candidacy. Section
253 of the Omnibus Election Code 38 gives any voter, presumably including the defeated candidate, the
opportunity to question the ELIGIBILITY (or the disloyalty) of a candidate. This is the only provision of the
Code that authorizes a remedy on how to contest before the Comelec an incumbent's ineligibility arising
from failure to meet the qualifications enumerated under Sec. 39 of the Local Government Code. Such
remedy of Quo Warranto can be availed of "within ten days after proclamation" of the winning
candidate. Hence, it is only at such time that the issue of ineligibility may be taken cognizance of by the
Commission. And since, at the very moment of Lee's proclamation (8:30 p.m., June 30, 1995), Juan G.
Frivaldo was already and indubitably a citizen, having taken his oath of allegiance earlier in the afternoon
of the same day, then he should have been the candidate proclaimed as he unquestionably garnered the
highest number of votes in the immediately preceding elections and such oath had already cured his
previous "judicially-declared" alienage. Hence, at such time, he was no longer ineligible.
But to remove all doubts on this important issue, we also hold that the repatriation of Frivaldo
RETROACTED to the date of the filing of his application on August 17, 1994.
It is true that under the Civil Code of the Philippines, 39 "(l)aws shall have no retroactive effect, unless the
contrary is provided." But there are settled exceptions 40 to this general rule, such as when the statute is
CURATIVE or REMEDIAL in nature or when it CREATES NEW RIGHTS.
According to Tolentino, 41 curative statutes are those which undertake to cure errors and irregularities,
thereby validating judicial or administrative proceedings, acts of public officers, or private deeds and
contracts which otherwise would not produce their intended consequences by reason of some statutory
disability or failure to comply with some technical requirement. They operate on conditions already
existing, and are necessarily retroactive in operation. Agpalo, 42 on the other hand, says that curative
statutes are
"healing acts . . . curing defects and adding to the means of enforcing existing obligations . . . (and) are
intended to supply defects, abridge superfluities in existing laws, and curb certain evils. . . . By their very
nature, curative statutes are retroactive . . . (and) reach back to past events to correct errors or
irregularities and to render valid and effective attempted acts which would be otherwise ineffective for
the purpose the parties intended."
On the other hand, remedial or procedural laws, i.e., those statutes relating to remedies or modes of
procedure, which do not create new or take away vested rights, but only operate in furtherance of the
remedy or confirmation of such rights, ordinarily do not come within the legal meaning of a
retrospective law, nor within the general rule against the retrospective operation of statutes. 43
A reading of P.D. 725 immediately shows that it creates a new right, and also provides for a new remedy,
thereby filling certain voids in our laws. Thus, in its preamble, P.D. 725 expressly recognizes the plight of
"many Filipino women (who) had lost their Philippine citizenship by marriage to aliens" and who could
not, under the existing law (C.A. No. 63, as amended) avail of repatriation until "after the death of their
husbands or the termination of their marital status" and who could neither be benefitted by the 1973
Constitution's new provision allowing "a Filipino woman who marries an alien to retain her Philippine
citizenship . . ." because "such provision of the new Constitution does not apply to Filipino women who
had married aliens before said constitution took effect." Thus, P.D. 725 granted a new right to these
women -- the right to re-acquire Filipino citizenship even during their marital coverture, which right did
not exist prior to P.D. 725. On the other hand, said statute also provided a new remedyand a new right in
favor of other "natural born Filipinos who (had) lost their Philippine citizenship but now desire to re-
acquire Philippine citizenship", because prior to the promulgation of P.D. 725 such former Filipinos
would have had to undergo the tedious and cumbersome process of naturalization, but with the advent
of P.D. 725 they could now re-acquire their Philippine citizenship under the simplified procedure of
repatriation.
The Solicitor General 44 argues:
By their very nature, curative statutes are retroactive, (DBP vs. CA, 96 SCRA 342),
since they are intended to supply defects, abridge superfluities in existing laws (Del
Castillo vs. Securities and Exchange Commission, 96 Phil. 119) and curb certain
evils (Santos vs. Duata, 14 SCRA 1041).
In this case, P.D. No. 725 was enacted to cure the defect in the existing
naturalization law, specifically C.A. No. 63 wherein married Filipino women are
allowed to repatriate only upon the death of their husbands, and natural-born
Filipinos who lost their citizenship by naturalization and other causes faced the
difficulty of undergoing the rigid procedures of C.A. 63 for reacquisition of Filipino
citizenship by naturalization.
Presidential Decree No. 725 provided a remedy for the aforementioned legal
aberrations and thus its provisions are considered essentially remedial and
curative.
In light of the foregoing, and prescinding from the wording of the preamble, it is unarguable that the
legislative intent was precisely to give the statute retroactive operation. "(A) retrospective operation is
given to a statute or amendment where the intent that it should so operate clearly appears from a
consideration of the act as a whole, or from the terms thereof." 45 It is obvious to the Court that the
statute was meant to "reach back" to those persons, events and transactions not otherwise covered by
prevailing law and jurisprudence. And inasmuch as it has been held that citizenship is a political and civil
right equally as important as the freedom of speech, liberty of abode, the right against unreasonable
searches and seizures and other guarantees enshrined in the Bill of Rights, therefore the legislative
intent to give retrospective operation to P.D. 725 must be given the fullest effect possible. "(I)t has been
said that a remedial statute must be so construed as to make it effect the evident purpose for which it
was enacted, so that if the reason of the statute extends to past transactions, as well as to those in the
future, then it will be so applied although the statute does not in terms so direct, unless to do so would
impair some vested right or violate some constitutional guaranty." 46 This is all the more true of P.D. 725,
which did not specify any restrictions on or delimit or qualify the right of repatriation granted therein.
At this point, a valid question may be raised: How can the retroactivity of P.D. 725 benefit Frivaldo
considering that said law was enacted on June 5, 1975, while Frivaldo lost his Filipino citizenship much
later, on January 20, 1983, and applied for repatriation even later, on August 17, 1994?
While it is true that the law was already in effect at the time that Frivaldo became an American citizen,
nevertheless, it is not only the law itself (P.D. 725) which is to be given retroactive effect, but even the
repatriation granted under said law to Frivaldo on June 30, 1995 is to be deemed to have retroacted to
the date of his application therefor, August 17, 1994. The reason for this is simply that if, as in this case,
it was the intent of the legislative authority that the law should apply to past events -- i.e., situations and
transactions existing even before the law came into being -- in order to benefit the greatest number of
former Filipinos possible thereby enabling them to enjoy and exercise the constitutionally guaranteed
right of citizenship, and such legislative intention is to be given the fullest effect and expression,
then there is all the more reason to have the law apply in a retroactive or retrospective manner to
situations, events and transactions subsequent to the passage of such law. That is, the repatriation
granted to Frivaldo on June 30, 1995 can and should be made to take effect as of date of his application.
As earlier mentioned, there is nothing in the law that would bar this or would show a contrary intention
on the part of the legislative authority; and there is no showing that damage or prejudice to anyone, or
anything unjust or injurious would result from giving retroactivity to his repatriation. Neither has Lee
shown that there will result the impairment of any contractual obligation, disturbance of any vested
right or breach of some constitutional guaranty.
Being a former Filipino who has served the people repeatedly, Frivaldo deserves a liberal interpretation
of Philippine laws and whatever defects there were in his nationality should now be deemed mooted by
his repatriation.
Another argument for retroactivity to the date of filing is that it would prevent prejudice to applicants. If
P.D. 725 were not to be given retroactive effect, and the Special Committee decides not to act, i.e., to
delay the processing of applications for any substantial length of time, then the former Filipinos who may
be stateless, as Frivaldo -- having already renounced his American citizenship -- was, may be prejudiced
for causes outside their control. This should not be. In case of doubt in the interpretation or application
of laws, it is to be presumed that the law-making body intended right and justice to prevail. 47
And as experience will show, the Special Committee was able to process, act upon and grant applications
for repatriation within relatively short spans of time after the same were filed. 48 The fact that such
interregna were relatively insignificant minimizes the likelihood of prejudice to the government as a
result of giving retroactivity to repatriation. Besides, to the mind of the Court, direct prejudice to the
government is possible only where a person's repatriation has the effect of wiping out a liability of his to
the government arising in connection with or as a result of his being an alien, and accruing only during
the interregnum between application and approval, a situation that is not present in the instant case.
And it is but right and just that the mandate of the people, already twice frustrated, should now prevail.
Under the circumstances, there is nothing unjust or iniquitous in treating Frivaldo's repatriation as
having become effective as of the date of his application, i.e., on August 17, 1994. This being so, all
questions about his possession of the nationality qualification -- whether at the date of proclamation
(June 30, 1995) or the date of election (May 8, 1995) or date of filing his certificate of candidacy (March
20, 1995) would become moot.
Based on the foregoing, any question regarding Frivaldo's status as a registered voter would also be
deemed settled. Inasmuch as he is considered as having been repatriated -- i.e., his Filipino citizenship
restored -- as of August 17, 1994, his previous registration as a voter is likewise deemed validated as of
said date.
It is not disputed that on January 20, 1983 Frivaldo became an American. Would the retroactivity of his
repatriation not effectively give him dual citizenship, which under Sec. 40 of the Local Government Code
would disqualify him "from running for any elective local position?" 49 We answer this question in the
negative, as there is cogent reason to hold that Frivaldo was really STATELESS at the time he took said
oath of allegiance and even before that, when he ran for governor in 1988. In his Comment, Frivaldo
wrote that he "had long renounced and had long abandoned his American citizenship -- long before May
8, 1995. At best, Frivaldo was stateless in the interim -- when he abandoned and renounced his US
citizenship but before he was repatriated to his Filipino citizenship." 50
On this point, we quote from the assailed Resolution dated December 19, 1995: 51
By the laws of the United States, petitioner Frivaldo lost his American citizenship
when he took his oath of allegiance to the Philippine Government when he ran for
Governor in 1988, in 1992, and in 1995. Every certificate of candidacy contains an
oath of allegiance to the Philippine Government."
These factual findings that Frivaldo has lost his foreign nationality long before the elections of 1995 have
not been effectively rebutted by Lee. Furthermore, it is basic that such findings of the Commission are
conclusive upon this Court, absent any showing of capriciousness or arbitrariness or
abuse. 52
The Second Issue: Is Lack of Citizenship
a Continuing Disqualification?
Lee contends that the May 1, 1995 Resolution 53 of the Comelec Second Division in SPA No. 95-028 as
affirmed in totoby Comelec En Banc in its Resolution of May 11, 1995 "became final and executory after
five (5) days or on May 17, 1995, no restraining order having been issued by this Honorable
Court. 54 Hence, before Lee "was proclaimed as the elected governor on June 30, 1995, there was already
a final and executory judgment disqualifying" Frivaldo. Lee adds that this Court's two rulings (which
Frivaldo now concedes were legally "correct") declaring Frivaldo an alien have also become final and
executory way before the 1995 elections, and these "judicial pronouncements of his political status as an
American citizen absolutely and for all time disqualified (him) from running for, and holding any public
office in the Philippines."
We do not agree.
It should be noted that our first ruling in G.R. No. 87193 disqualifying Frivaldo was rendered in
connection with the 1988 elections while that in G.R. No. 104654 was in connection with the 1992
elections. That he was disqualified for such elections is final and can no longer be changed. In the words
of the respondent Commission (Second Division) in its assailed Resolution: 55
 The records show that the Honorable Supreme Court had decided that Frivaldo
was not a Filipino citizen and thus disqualified for the purpose of the 1988 and
1992 elections. However, there is no record of any "final judgment" of the
disqualification of Frivaldo as a candidate for the May 8, 1995 elections. What the
Commission said in its Order of June 21, 1995 (implemented on June 30, 1995),
directing the proclamation of Raul R. Lee, was that Frivaldo was not a Filipino
citizen "having been declared by the Supreme Court in its Order dated March 25,
1995, not a citizen of the Philippines." This declaration of the Supreme Court,
however, was in connection with the 1992 elections.
Indeed, decisions declaring the acquisition or denial of citizenship cannot govern a person's future status
with finality. This is because a person may subsequently reacquire, or for that matter lose, his citizenship
under any of the modes recognized by law for the purpose. Hence, in Lee vs. Commissioner of
Immigration, 56 we held:
Everytime the citizenship of a person is material or indispensable in a judicial or
administrative case, whatever the corresponding court or administrative authority
decides therein as to such citizenship is generally not considered res judicata,
hence it has to be threshed out again and again, as the occasion demands.
The Third Issue: Comelec's Jurisdiction
Over The Petition in SPC No. 95-317
Lee also avers that respondent Comelec had no jurisdiction to entertain the petition in SPC No. 95-317
because the only "possible types of proceedings that may be entertained by the Comelec are a pre-
proclamation case, an election protest or a quo warranto case". Again, Lee reminds us that he was
proclaimed on June 30, 1995 but that Frivaldo filed SPC No. 95-317 questioning his (Lee's) proclamation
only on July 6, 1995 -- "beyond the 5-day reglementary period." Hence, according to him, Frivaldo's
"recourse was to file either an election protest or a quo warranto action."
This argument is not meritorious. The Constitution 57 has given the Comelec ample power to "exercise
exclusive original jurisdiction over all contests relating to the elections, returns and qualifications of all
elective . . . provincial . . . officials." Instead of dwelling at length on the various petitions that Comelec, in
the exercise of its constitutional prerogatives, may entertain, suffice it to say that this Court has
invariably recognized the Commission's authority to hear and decide petitions for annulment of
proclamations -- of which SPC No. 95-317 obviously is one. 58 Thus, in Mentang vs. COMELEC, 59 we ruled:
The petitioner argues that after proclamation and assumption of office, a pre-
proclamation controversy is no longer viable. Indeed, we are aware of cases
holding that pre-proclamation controversies may no longer be entertained by the
COMELEC after the winning candidate has been proclaimed. (citing Gallardo vs.
Rimando, 187 SCRA 463; Salvacion vs. COMELEC, 170 SCRA 513; Casimiro vs.
COMELEC, 171 SCRA 468.) This rule, however, is premised on an assumption that
the proclamation is no proclamation at all and the proclaimed candidate's
assumption of office cannot deprive the COMELEC of the power to make such
declaration of nullity. (citing Aguam vs. COMELEC, 23 SCRA 883; Agbayani vs.
COMELEC, 186 SCRA 484.)
The Court however cautioned that such power to annul a proclamation must "be done within ten (10)
days following the proclamation." Inasmuch as Frivaldo's petition was filed only six (6) days after Lee's
proclamation, there is no question that the Comelec correctly acquired jurisdiction over the same.
The Fourth Issue: Was Lee's Proclamation Valid?
Frivaldo assails the validity of the Lee proclamation. We uphold him for the following reasons:
First. To paraphrase this Court in Labo vs. COMELEC, 60 "the fact remains that he (Lee) was not the choice
of the sovereign will," and in Aquino vs. COMELEC, 61 Lee is "a second placer, . . . just that, a second
placer."
In spite of this, Lee anchors his claim to the governorship on the pronouncement of this Court in the
aforesaid Labo 62 case, as follows:
The rule would have been different if the electorate fully aware in fact and in law
of a candidate's disqualification so as to bring such awareness within the realm of
notoriety, would nonetheless cast their votes in favor of the ineligible candidate. In
such case, the electorate may be said to have waived the validity and efficacy of
their votes by notoriously misapplying their franchise or throwing away their
votes, in which case, the eligible candidate obtaining the next higher number of
votes may be deemed elected.
But such holding is qualified by the next paragraph, thus:
But this is not the situation obtaining in the instant dispute. It has not been shown,
and none was alleged, that petitioner Labo was notoriously known as an ineligible
candidate, much less the electorate as having known of such fact. On the contrary,
petitioner Labo was even allowed by no less than the Comelec itself in its
resolution dated May 10, 1992 to be voted for the office of the city Payor as its
resolution dated May 9, 1992 denying due course to petitioner Labo's certificate of
candidacy had not yet become final and subject to the final outcome of this case.
The last-quoted paragraph in Labo, unfortunately for Lee, is the ruling appropriate in this case because
Frivaldo was in 1995 in an identical situation as Labo was in 1992 when the Comelec's cancellation of his
certificate of candidacy was not yet final on election day as there was in both cases a pending motion for
reconsideration, for which reason Comelec issued an (omnibus) resolution declaring that Frivaldo (like
Labo in 1992) and several others can still be voted for in the May 8, 1995 election, as in fact, he was.
Furthermore, there has been no sufficient evidence presented to show that the electorate of Sorsogon
was "fully aware in fact and in law" of Frivaldo's alleged disqualification as to "bring such awareness
within the realm of notoriety;" in other words, that the voters intentionally wasted their ballots knowing
that, in spite of their voting for him, he was ineligible. If Labo has any relevance at all, it is that the vice-
governor -- and not Lee -- should be pro- claimed, since in losing the election, Lee was, to
paraphrase Labo again, "obviously not the choice of the people" of Sorsogon. This is the emphatic
teaching of Labo:
The rule, therefore, is: the ineligibility of a candidate receiving majority votes does
not entitle the eligible candidate receiving the next highest number of votes to be
declared elected. A minority or defeated candidate cannot be deemed elected to
the office.
Second. As we have earlier declared Frivaldo to have seasonably reacquired his citizenship and inasmuch
as he obtained the highest number of votes in the 1995 elections, he -- not Lee -- should be proclaimed.
Hence, Lee's proclamation was patently erroneous and should now be corrected.
The Fifth Issue: Is Section 78 of the
Election Code Mandatory?
In G.R. No. 120295, Frivaldo claims that the assailed Resolution of the Comelec (Second Division) dated
May 1, 1995 and the confirmatory en banc Resolution of May 11, 1995 disqualifying him for want of
citizenship should be annulled because they were rendered beyond the fifteen (15) day period
prescribed by Section 78, of the Omnibus Election Code which reads as follows:
Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. -- A
verified petition seeking to deny due course or to cancel a certificate of candidacy
may be filed by any person exclusively on the ground that any material
representation contained therein as required under Section 74 hereof is false. The
petition may be filed at any time not later than twenty-five days from the time of
the filing of the certificate of candidacy and shall be decided after notice and
hearing, not later than fifteen days before the election. (Emphasis supplied.)
This claim is now moot and academic inasmuch as these resolutions are deemed superseded by the
subsequent ones issued by the Commission (First Division) on December 19, 1995, affirmed en banc 63 on
February 23, 1996; which both upheld his election. At any rate, it is obvious that Section 78 is merely
directory as Section 6 of R.A. No. 6646 authorizes the Commission to try and decide petitions for
disqualifications even after the elections, thus:
Sec. 6. Effect of Disqualification Case. -- Any candidate who has been declared by
final judgment to be disqualified shall not be voted for, and the votes cast for him
shall not be counted. If for any reason a candidate is not declared by final
judgment before an election to be disqualified and he is voted for and receives the
winning number of votes in such election, the Court or Commission shall continue
with the trial and hearing of the action, inquiry or protest and upon motion of the
complainant or any intervenor, may during the pendency thereof order the
suspension of the proclamation of such candidate whenever the evidence of his
guilt is strong. (emphasis supplied)
Refutation of
Mr. Justice Davide's Dissent
In his dissenting opinion, the esteemed Mr. Justice Hilario G. Davide, Jr. argues that President Aquino's
memorandum dated March 27, 1987 should be viewed as a suspension (not a repeal, as urged by Lee) of
P.D. 725. But whether it decrees a suspension or a repeal is a purely academic distinction because the
said issuance is not a statute that can amend or abrogate an existing law.
The existence and subsistence of P.D. 725 were recognized in the first Frivaldo case; 64 viz., "(u)nder CA
No. 63 as amended by CA No. 473 and P.D. No. 725, Philippine citizenship maybe reacquired by . . .
repatriation". He also contends that by allowing Frivaldo to register and to remain as a registered voter,
the Comelec and in effect this Court abetted a "mockery" of our two previous judgments declaring him a
non-citizen. We do not see such abetting or mockery. The retroactivity of his repatriation, as discussed
earlier, legally cured whatever defects there may have been in his registration as a voter for the purpose
of the 1995 elections. Such retroactivity did not change his disqualifications in 1988 and 1992, which
were the subjects of such previous rulings.
Mr. Justice Davide also believes that Quo Warranto is not the sole remedy to question the ineligibility of
a candidate, citing the Comelec's authority under Section 78 of the Omnibus Election Code allowing the
denial of a certificate of candidacy on the ground of a false material representation therein as required
by Section 74. Citing Loong, he then states his disagreement with our holding that Section 78 is merely
directory. We really have no quarrel. Our point is that Frivaldo was in error in his claim in G.R. No.
120295 that the Comelec Resolutions promulgated on May 1, 1995 and May 11, 1995 were invalid
because they were issued "not later than fifteen days before the election" as prescribed by Section 78. In
dismissing the petition in G.R. No. 120295, we hold that the Comelec did not commit grave abuse of
discretion because "Section 6 of R.A. 6646 authorizes the Comelec to try and decide disqualifications
even after the elections." In spite of his disagreement with us on this point, i.e., that Section 78 "is
merely directory", we note that just like us, Mr. Justice Davide nonetheless votes to "DISMISS G.R. No.
120295". One other point. Loong, as quoted in the dissent, teaches that a petition to deny due course
under Section 78 must be filed within the 25-day period prescribed therein. The present case however
deals with the period during which the Comelec may decide such petition. And we hold that it may be
decided even after thefifteen day period mentioned in Section 78. Here, we rule that a
decision promulgated by the Comelec even after the elections is valid but Loong held that a
petition filed beyond the 25-day period is out of time. There is no inconsistency nor conflict.
Mr. Justice Davide also disagrees with the Court's holding that, given the unique factual circumstances of
Frivaldo, repatriation may be given retroactive effect. He argues that such retroactivity "dilutes" our
holding in the first Frivaldo case. But the first (and even the second Frivaldo) decision did not directly
involve repatriation as a mode of acquiring citizenship. If we may repeat, there is no question that
Frivaldo was not a Filipino for purposes of determining his qualifications in the 1988 and 1992 elections.
That is settled. But his supervening repatriation has changed his political status -- not in 1988 or 1992,
but only in the 1995 elections.
Our learned colleague also disputes our holding that Frivaldo was stateless prior to his repatriation,
saying that "informal renunciation or abandonment is not a ground to lose American citizenship". Since
our courts are charged only with the duty of determining who are Philippine nationals, we cannot rule on
the legal question of who are or who are not Americans. It is basic in international law that a State
determines ONLY those who are its own citizens -- not who are the citizens of other countries. 65 The
issue here is: the Comelec made a finding of fact that Frivaldo was stateless and such finding has not
been shown by Lee to be arbitrary or whimsical. Thus, following settled case law, such finding is binding
and final.
The dissenting opinion also submits that Lee who lost by chasmic margins to Frivaldo in all three previous
elections, should be declared winner because "Frivaldo's ineligibility for being an American was publicly
known". First, there is absolutely no empirical evidence for such "public" knowledge. Second, even if
there is, such knowledge can be true post facto only of the last two previous elections. Third, even the
Comelec and now this Court were/are still deliberating on his nationality before, during and after the
1995 elections. How then can there be such "public" knowledge?
Mr. Justice Davide submits that Section 39 of the Local Government Code refers to the qualifications
of electivelocal officials, i.e., candidates, and not elected officials, and that the citizenship qualification
[under par. (a) of that section] must be possessed by candidates, not merely at the commencement of
the term, but by election day at the latest. We see it differently. Section 39, par. (a) thereof speaks of
"elective local official" while par. (b) to (f) refer to "candidates". If the qualifications under par. (a) were
intended to apply to "candidates" and not elected officials, the legislature would have said so, instead of
differentiating par. (a) from the rest of the paragraphs. Secondly, if Congress had meant that the
citizenship qualification should be possessed at election day or prior thereto, it would have specifically
stated such detail, the same way it did in pars. (b) to (f) far other qualifications of candidates for
governor, mayor, etc.
Mr. Justice Davide also questions the giving of retroactive effect to Frivaldo's repatriation on the ground,
among others, that the law specifically provides that it is only after taking the oath of allegiance that
applicants shall be deemed to have reacquired Philippine citizenship. We do not question what the
provision states. We hold however that the provision should be understood thus: that after taking the
oath of allegiance the applicant is deemed to have reacquired Philippine citizenship, which reacquisition
(or repatriation) is deemed for all purposes and intents to have retroacted to the date of his application
therefor.
In any event, our "so too" argument regarding the literal meaning of the word "elective" in reference to
Section 39 of the Local Authority Code, as well as regarding Mr. Justice Davide's thesis that the very
wordings of P.D. 725 suggest non-retroactivity, were already taken up rather extensively earlier in this
Decision.
Mr. Justice Davide caps his paper with a clarion call: "This Court must be the first to uphold the Rule of
Law." We agree -- we must all follow the rule of law. But that is NOT the issue here. The issue
is how should the law be interpreted and applied in this case so it can be followed, so it can rule!
At balance, the question really boils down to a choice of philosophy and perception of how to interpret
and apply laws relating to elections: literal or liberal; the letter or the spirit, the naked provision or its
ultimate purpose; legal syllogism or substantial justice; in isolation or in the context of social conditions;
harshly against or gently in favor of the voters' obvious choice. In applying election laws, it would be far
better to err in favor of popular sovereignty than to be right in complex but little understood legalisms.
Indeed, to inflict a thrice rejected candidate upon the electorate of Sorsogon would constitute
unmitigated judicial tyranny and an unacceptable assault upon this Court's conscience.
EPILOGUE
In sum, we rule that the citizenship requirement in the Local Government Code is to be possessed by an
elective official at the latest as of the time he is proclaimed and at the start of the term of office to which
he has been elected. We further hold P.D. No. 725 to be in full force and effect up to the present, not
having been suspended or repealed expressly nor impliedly at any time, and Frivaldo's repatriation by
virtue thereof to have been properly granted and thus valid and effective. Moreover, by reason of the
remedial or curative nature of the law granting him a new right to resume his political status and the
legislative intent behind it, as well as his unique situation of having been forced to give up his citizenship
and political aspiration as his means of escaping a regime he abhorred, his repatriation is to be given
retroactive effect as of the date of his application therefor, during the pendency of which he was
stateless, he having given up his U.S. nationality. Thus, in contemplation of law, he possessed the vital
requirement of Filipino citizenship as of the start of the term of office of governor, and should have been
proclaimed instead of Lee. Furthermore, since his reacquisition of citizenship retroacted to August 17,
1994, his registration as a voter of Sorsogon is deemed to have been validated as of said date as well.
The foregoing, of course, are precisely consistent with our holding that lack of the citizenship
requirement is not a continuing disability or disqualification to run for and hold public office. And once
again, we emphasize herein our previous rulings recognizing the Comelec's authority and jurisdiction to
hear and decide petitions for annulment of proclamations.
This Court has time and again liberally and equitably construed the electoral laws of our country to give
fullest effect to the manifest will of our people, 66 for in case of doubt, political laws must be interpreted
to give life and spirit to the popular mandate freely expressed through the ballot. Otherwise stated, legal
niceties and technicalities cannot stand in the way of the sovereign will. Consistently, we have held:
. . . (L)aws governing election contests must be liberally construed to the end that
the will of the people in the choice of public officials may not be defeated by mere
technical objections (citations omitted). 67
The law and the courts must accord Frivaldo every possible protection, defense and refuge, in deference
to the popular will. Indeed, this 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 68 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. In this undertaking, Lee has miserably failed.
In Frivaldo's case. it would have been technically easy to find fault with his cause. The Court could have
refused to grant retroactivity to the effects of his repatriation and hold him still ineligible due to his
failure to show his citizenship at the time he registered as a voter before the 1995 elections. Or, it could
have disputed the factual findings of the Comelec that he was stateless at the time of repatriation and
thus hold his consequent dual citizenship as a disqualification "from running for any elective local
position." But the real essence of justice does not emanate from quibblings over patchwork legal
technicality. It proceeds from the spirit's gut consciousness of the dynamic role of law as a brick in the
ultimate development of the social edifice. Thus, the Court struggled against and eschewed the easy,
legalistic, technical and sometimes harsh anachronisms of the law in order to evoke substantial justice in
the larger social context consistent with Frivaldo's unique situation approximating venerability in
Philippine political life. Concededly, he sought American citizenship only to escape the clutches of the
dictatorship. At this stage, we cannot seriously entertain any doubt about his loyalty and dedication to
this country. At the first opportunity, he returned to this land, and sought to serve his people once more.
The people of Sorsogon overwhelmingly voted for him three times. He took an oath of allegiance to this
Republic every time he filed his certificate of candidacy and during his failed naturalization bid. And let it
not be overlooked, his demonstrated tenacity and sheer determination to re-assume his nationality of
birth despite several legal set-backs speak more loudly, in spirit, in fact and in truth than any legal
technicality, of his consuming intention and burning desire to re-embrace his native Philippines even
now at the ripe old age of 81 years. Such loyalty to and love of country as well as nobility of purpose
cannot be lost on this Court of justice and equity. Mortals of lesser mettle would have given up. After all,
Frivaldo was assured of a life of ease and plenty as a citizen of the most powerful country in the world.
But he opted, nay, single-mindedly insisted on returning to and serving once more his struggling but
beloved land of birth. He therefore deserves every liberal interpretation of the law which can be applied
in his favor. And in the final analysis, over and above Frivaldo himself, the indomitable people of
Sorsogon most certainly deserve to be governed by a leader of their overwhelming choice.
WHEREFORE, in consideration of the foregoing:
(1) The petition in G.R. No. 123755 is hereby DISMISSED. The assailed Resolutions of the respondent
Commission are AFFIRMED.
(2) The petition in G.R. No. 120295 is also DISMISSED for being moot and academic. In any event, it has
no merit.
No costs.
EN BANC
[G.R. No. 147066. March 26, 2001]
AKBAYAN Youth, SCAP, UCSC, MASP, KOMPIL II Youth, ALYANSA, KALIPI, PATRICIA O. PICAR, MYLA
GAIL Z. TAMONDONG, EMMANUEL E. OMBAO, JOHNNY ACOSTA, ARCHIE JOHN TALAUE,
RYAN DAPITAN, CHRISTOPHER OARDE, JOSE MARI MODESTO, RICHARD M. VALENCIA,
EDBEN TABUCOL, petitioners, vs. COMMISSION ON ELECTIONS, respondents.
[G.R. No. 147179. March 26, 2001]
MICHELLE D. BETITO, petitioner, vs. CHAIRMAN ALFREDO BENIPAYO, COMMISSIONERS MEHOL
SADAIN, RUFINO JAVIER, LUZVIMINDA TANCANGCO, RALPH LANTION, FLORENTINO
TUASON and RESURRECCION BORRA, all of the Commission on Election
(COMELEC), respondents.
DECISION
BUENA, J.:
At the helm of controversy in the instant consolidated petitions[1] before us is the exercise of a
right so indubitably cherished and accorded primacy, if not utmost reverence, no less than by the
fundamental law - the right of suffrage.
Invoking this right, herein petitioners - representing the youth sector - seek to direct the
Commission on Elections (COMELEC) to conduct a special registration before the May 14, 2001 General
Elections, of new voters ages 18 to 21. According to petitioners, around four million youth failed to
register on or before the December 27, 2000 deadline set by the respondent COMELEC under Republic
Act No. 8189.[2]
Acting on the clamor of the students and civic leaders, Senator Raul Roco, Chairman of the
Committee on Electoral Reforms, Suffrage, and Peoples Participation, through a Letter dated January 25,
2001, invited the COMELEC to a public hearing for the purpose of discussing the extension of the
registration of voters to accommodate those who were not able to register before the COMELEC
deadline.[3]
Commissioners Luzviminda G. Tancangco and Ralph C. Lantion, together with Consultant
Resurreccion Z. Borra (now Commissioner) attended the public hearing called by the Senate Committee
headed by Senator Roco, held at the Senate, New GSIS Headquarters Bldg., Pasay City.
On January 29, 2001, Commissioners Tancangco and Lantion submitted Memorandum No. 2001-
027 on the Report on the Request for a Two-day Additional Registration of New Voters Only, excerpts of
which are hereto quoted:
Please be advised that the undersigned attended the public hearing called by the Senate Committee on
electoral Reforms, Suffrage and Peoples Participation presided over by the Hon. Sen. Raul Roco, its
Committee Chairman to date at the Senate, New GSIS Headquarters Building, Pasay City. The main
agenda item is the request by youth organizations to hold additional two days of registration. Thus,
participating students and civic leaders along with Comelec Representatives were in agreement that is
legally feasible to have a two-day additional registration of voters to be conducted preferably on
February 17 and 18, 2001 nationwide. The deadline for the continuing voters registration under R.A.
8189 is December 27, 2000.
To address the concern that this may open the flood parts for hakot system, certain restrictive
parameters were discussed. The following guidelines to serve as safeguards against fraudulent
applicants:
1. The applicants for the registration shall be 25 years of age or less and will be registering
for the first time on May 14, 2001;
2. The applicants shall register in their places of residences; and
3. The applicants shall present valid identification documents, like school records.
Preparatory to the registration days, the following activities are likewise agreed:
1. Submission of the list of students and their addresses immediately prior to the actual
registration of the applicants;
2. The Comelec field officers will be given the opportunity to verify the voters enumerators
list or conduct ocular inspection;
3. Availability of funds for the purpose; and
4. Meetings with student groups to ensure orderly and honest conduct of the registration
and drum up interest to register among the new voters.
The rationale for the additional two-day registration is the renewed political awareness and interest to
participate in the political process generated by the recent political events in the country among our
youth.Considering that they failed to register on December 27, 2000 deadline, they approved for special
registration days.
In view of the foregoing, the Commission en banc has to discuss all aspects regarding this request with
directives to the Finance Services Department (FSD) to submit certified available funds for the
purpose, and for the Deputy Executive Director for Operations (DEDO) for the estimated costs of
additional two days of registration.
The presence of REDs on January 30 can be used partly for consultation on the practical side and
logistical requirements of such additional registration days. The meeting will be set at 1:30 p.m. at the
Office of ED.[4]
Immediately, Commissioner Borra called a consultation meeting among regional heads and
representatives and a number of senior staff headed by Executive Director Mamasapunod Aguam. It was
the consensus of the group, with the exception of Director Jose Tolentino, Jr. of the ASD, to disapprove
the request for additional registration of voters on the ground that Section 8 of R.A. 8189 explicitly
provides that no registration shall be conducted during the period starting one hundred twenty (120)
days before a regular election and that the Commission has no more time left to accomplish all pre-
election activities.[5]
On February 8, 2001, the COMELEC issued Resolution No. 3584, the decretal portion of which
reads:
Deliberating on the foregoing memoranda, the Commission RESOLVED, as it hereby RESOLVES, to deny
the request to conduct a two-day additional registration of new voters on February 17 and 18, 2001.
Commissioners Rufino S. B. Javier and Mehol K. Sadain voted to deny the request while
Commissioners Luzviminda Tancangco and Ralph Lantion voted to accommodate the students
request. With this impasse, the Commission construed its Resolution as having taken effect.
Aggrieved by the denial, petitioners AKBAYAN-Youth, SCAP, UCSC, MASP, KOMPIL II (YOUTH) et al.
filed before this Court the instant Petition for Certiorari and Mandamus, docketed as G.R. No. 147066,
which seeks to set aside and nullify respondent COMELECs Resolution and/or to declare Section 8 of R.
A. 8189 unconstitutional insofar as said provision effectively causes the disenfranchisement of
petitioners and others similarly situated. Likewise, petitioners pray for the issuance of a writ of
mandamus directing respondent COMELEC to conduct a special registration of new voters and to admit
for registration petitioners and other similarly situated young Filipinos to qualify them to vote in the May
14, 2001 General Elections.
On March 09, 2001, herein petitioner Michelle Betito, a student of the University of the
Philippines, likewise filed a Petition for Mandamus, docketed as G.R. No. 147179, praying that this Court
direct the COMELEC to provide for another special registration day under the continuing registration
provision under the Election Code.
On March 13, 2001, this Court resolved to consolidate the two petitions and further required
respondents to file their Comment thereon within a non-extendible period expiring at 10:00 A.M. of
March 16, 2001. Moreover, this Court resolved to set the consolidated cases for oral arguments on
March 16, 2001.[6]
On March 16, 2001, the Solicitor General, in its Manifestation and Motion in lieu of Comment,
recommended that an additional continuing registration of voters be conducted at the soonest possible
time in order to accommodate that disenfranchised voters for purposes of the May 14, 2001 elections.
In effect, the Court in passing upon the merits of the present petitions, is tasked to resolve a two-
pronged issue focusing on respondent COMELECs issuance of the assailed Resolution dated February 8,
2001, which Resolution, petitioners, by and large, argue to have undermined their constitutional right to
vote on the May 14, 2001 general elections and caused the disenfranchisement of around four (4)
million Filipinos of voting age who failed to register before the registration deadline set by the COMELEC.
Thus, this Court shall determine:
a) Whether or not respondent COMELEC committed grave abuse of discretion in issuing
COMELEC Resolution dated February 8, 2001;
b) Whether or not this Court can compel respondent COMELEC, through the extraordinary
writ of mandamus, to conduct a special registration of new voters during the period
between the COMELECs imposed December 27, 2000 deadline and the May 14, 2001
general elections.
The petitions are bereft of merit.
In a representative democracy such as ours, the right of suffrage, although accorded a prime niche
in the hierarchy of rights embodied in the fundamental law, ought to be exercised within the proper
bounds and framework of the Constitution and must properly yield to pertinent laws skillfully enacted by
the Legislature, which statutes for all intents and purposes, are crafted to effectively insulate such so
cherished right from ravishment and preserve the democratic institutions our people have, for so long,
guarded against the spoils of opportunism, debauchery and abuse.
To be sure, the right of suffrage ardently invoked by herein petitioners, is not at all
absolute. Needless to say, the exercise of the right of suffrage, as in the enjoyment of all other rights, is
subject to existing substantive and procedural requirements embodied in our Constitution, statute books
and other repositories of law. Thus, as to the substantive aspect, Section 1, Article V of the Constitution
provides:
SECTION 1. SUFFRAGE MAY BE EXERCISED BY ALL CITIZENS OF THE PHILIPPINES NOT OTHERWISE
DISQUALIFIED BY LAW, WHO ARE AT LEAST EIGHTEEN YEARS OF AGE, AND WHO SHALL HAVE RESIDED IN
THE PHILIPPINES FOR AT LEAST ONE YEAR AND IN THE PLACE WHEREIN THEY PROPOSE TO VOTE FOR AT
LEAST SIX MONTHS IMMEDIATELY PRECEDING THE ELECTIONS. NO LITERACY, PROPERTY, OR OTHER
SUBSTANTIVE REQUIREMENT SHALL BE IMPOSED ON THE EXERCISE OF SUFFRAGE.
As to the procedural limitation, the right of a citizen to vote is necessarily conditioned upon
certain procedural requirements he must undergo: among others, the process of
registration. Specifically, a citizen in order to be qualified to exercise his right to vote, in addition to the
minimum requirements set by the fundamental charter, is obliged by law to register, at present, under
the provisions of Republic Act No. 8189, otherwise known as the Voters Registration Act of 1996.
Stated differently, the act of registration is an indispensable precondition to the right of
suffrage. For registration is part and parcel of the right to vote and an indispensable element in the
election process.Thus, contrary to petitioners argument, registration cannot and should not be
denigrated to the lowly stature of a mere statutory requirement. Proceeding from the significance of
registration as a necessary requisite to the right to vote, the State undoubtedly, in the exercise of its
inherent police power, may then enact laws to safeguard and regulate the act of voters registration for
the ultimate purpose of conducting honest, orderly and peaceful election, to the incidental yet generally
important end, that even pre-election activities could be performed by the duly constituted authorities
in a realistic and orderly manner one which is not indifferent and so far removed from the pressing order
of the day and the prevalent circumstances of the times.
Viewed broadly, existing legal proscription and pragmatic operational considerations bear great
weight in the adjudication of the issues raised in the instant petitions.
On the legal score, Section 8, of the R.A. 8189, which provides a system of continuing registration,
is explicit, to wit:
SEC. 8. System of Continuing Registration of Voters. The Personal filing of application of registration of
voters shall be conducted daily in the office of the Election Officer during regular office hours. No
registration shall, however, be conducted during the period starting one hundred twenty (120) days
before a regular election and ninety (90) days before a special election. (Emphasis Ours)
Likewise, Section 35 of R.A. 8189, which among others, speaks of a prohibitive period within which
to file a sworn petition for the exclusion of voters from the permanent voters list, provides:
SEC. 35. Petition for Exclusion of Voters from the List Any registered voter, representative of a political
party x x x may file x x x except one hundred (100) days prior to a regular election xxx.
As aptly observed and succinctly worded by respondent COMELEC in its Comment:
x x x The petition for exclusion is a necessary component to registration since it is a safety mechanism
that gives a measure of protection against flying voters, non-qualified registrants, and the like. The
prohibitive period, on the other hand serves the purpose of securing the voters substantive right to be
included in the list of voters.
In real-world terms, this means that if a special voters registration is conducted, then the prohibitive
period for filing petitions for exclusion must likewise be adjusted to a later date. If we do not, then no
one can challenge the Voters list since we would already be well into the 100-day prohibitive
period. Aside from being a flagrant breach of the principles of due process, this would open the
registration process to abuse and seriously compromise the integrity of the voters list, and consequently,
that of the entire election.
x x x It must be remembered that the period serve a vital role in protecting the integrity of the
registration process. Without the prohibitive periods, the COMELEC would be deprived of any time to
evaluate the evidence on the application. We would be obliged to simply take them at face value. If we
compromise on these safety nets, we may very well end up with a voters list full of flying voters,
overflowing with unqualified registrants, populated with shadows and ghosts x x x.
x x x The short cuts that will have to be adopted in order to fit the entire process of registration within
the last 60 days will give rise to haphazard list of voters, some of whom might not even be qualified to
vote. x x x the very possibility that we shall be conducting elections on the basis of an inaccurate list is
enough to cast a cloud of doubt over the results of the polls. If that happens, the unforgiving public will
disown the results of the elections, regardless of who wins, and regardless of how many courts validate
our own results. x x x
Perhaps undaunted by such scenario, petitioners invoke the so called standby powers or residual
powers of the COMELEC, as provided under the relevant provisions of Section 29, Republic Act No.
6646[7] and adopted verbatim in Section 28 of Republic Act No. 8436,[8] thus:
SEC. 28. Designation of other Dates for Certain Pre-election Acts - If it should no longer be possible to
observe the periods and dates prescribed by law for certain pre-election acts, the Commission shall fix
other periods and dates in order to ensure accomplishments of the activities so voters shall not be
deprived of their right to suffrage.
On this matter, the act of registration is concededly, by its very nature, a pre-election act. Under
Section 3(a) of R.A. 8189, registration, as a process, has its own specific definition, precise meaning and
coverage, thus:
a) Registration refers to the act of accomplishing and filing of a sworn application for registration by a
qualified voter before the election officer of the city or municipality wherein he resides and including the
same in the book of registered voters upon approval by the Election Registration Board;
At this point, it bears emphasis that the provisions of Section 29 of R.A. 8436 invoked by herein
petitioners and Section 8 of R.A. 8189 volunteered by respondent COMELEC, far from contradicting each
other, actually share some common ground. True enough, both provisions, although at first glance may
seem to be at war in relation to the other, are in a more circumspect perusal, necessarily capable of
being harmonized and reconciled.
Rudimentary is the principle in legal hermeneutics that changes made by the legislature in the
form of amendments to a statute should be given effect, together with other parts of the amended act.
It is not to be presumed that the legislature, in making such changes, was indulging in mere semantic
exercise. There must be some purpose in making them, which should be ascertained and given effect.[9]
Similarly, every new statute should be construed in connection with those already existing in
relation to the same subject matter and all should be made to harmonize and stand together, if they can
be done by any fair and reasonable interpretation.[10] Interpretare et concordare legibus est optimus
interpretandi, which means that the best method of interpretation is that which makes laws consistent
with other laws. Accordingly, courts of justice, when confronted with apparently conflicting statutes,
should endeavor to reconcile them instead of declaring outright the invalidity of one against the other.
Courts should harmonize them, if this is possible, because they are equally the handiwork of the same
legislature.[11]
In light of the foregoing doctrine, we hold that Section 8 of R.A. 8189 applies in the present case,
for the purpose of upholding the assailed COMELEC Resolution and denying the instant petitions,
considering that the aforesaid law explicitly provides that no registration shall be conducted during the
period starting one hundred twenty (120) days before a regular election.
Corollarily, it is specious for herein petitioners to argue that respondent COMELEC may validly and
legally conduct a two-day special registration, through the expedient of the letter of Section 28 of R.A.
8436. To this end, the provisions of Section 28, R.A. 8436 would come into play in cases where the pre-
election acts are susceptible of performance within the available period prior to election day. In more
categorical language, Section 28 of R.A. 8436 is, to our mind, anchored on the sound premise that these
certain pre-election acts are still capable of being reasonably performed vis-a-vis the remaining period
before the date of election and the conduct of other related pre-election activities required under the
law.
In its Comment, respondent COMELECwhich is the constitutional body tasked by no less than the
fundamental charter (Sec. 2, par. 3, Article IX-C of the Constitution) to decide, except those involving the
right to vote, all questions affecting elections, including registration of voterspainstakingly and
thoroughly emphasized the operational impossibility[12] of conducting a special registration, which in its
on language, can no longer be accomplished within the time left to (us) the Commission.[13]
Hence:
xxx xxx xxx.
19) In any case, even without the legal obstacles, the last 60 days will not be a walk in the
park for the Comelec. Allow us to outline what the Commission has yet to do, and the
time to do it in:
20) First we have to complete the Project of Precincts by the 19th of March. The Projects of
Precincts Indicate the total number of established precincts and the number of
registered voters per precincts in a city or municipality. Without the final Project of
Precincts, we cannot even determine the proper allocation of official ballots, election
returns and other election forms and paraphernalia. More succinctly said, without the
Project of Precincts, we wont know how many forms to print and so were liable to
come up short.
21) More Importantly, without a completed Project of Precincts, it will be impossible to
complete the rest of the tasks that must be accomplished prior to the elections.
22) Second, the Board of Elections Inspectors must be constituted on or before the 4th of
March. In addition, the list of the members of the BEI including the precinct where they
are assigned and the barangay where that precinct is located - must be furnished by
the Election Officer to all the candidates and political candidates not later than the
26th of March.
23) Third, the Book of Voters, which contains the approved Voter Registration Records of
registered voters in particular precinct, must be inspected, verified, and sealed
beginning March 30, until April 15.
24) Fourth, the Computerized Voters List must be finalized and printed out of use on
election day; and finally
25) Fifth, the preparation, bidding, printing, and distribution of the Voters Information
Sheet must be completed on or before April 15.
26) With this rigorous schedule of pre-election activities, the Comelec will have roughly a
month that will act as a buffer against any number of unforeseen occurrences that
might delay the elections. This is the logic and the wisdom behind setting the 120-day
prohibitive period. After all, preparing for an election is no easy task.
27) To hold special registrations now would, aside from being Illegal, whittle that
approximately 30-day margin away to nothing.
28) When we say registration of voters, we do not - contrary to popular opinion - refer only
to the act of going to the Election Officer and writing our names down. Registration is,
In fact, a long process that takes about three weeks to complete not even counting
how long it would take to prepare for the registration in the first place.
29) In order to concretize, the senior Staff of the Comelec, the other Commissioners,
prepared a time-table in order to see exactly how the superimposition of special
registration would affect the on-going preparation for the May 14 elections.
30) We assumed for the sake of argument that we were to hold the special registration on
April 16 and 17. These are not arbitrary numbers, by the way it takes in account the
fact that we only have about 800,000 Voters Registration Forms available, as against an
estimated 4.5 million potential registrants, and it would take about 14 days If we were
to declare special registrations today to print up the difference and to verify these
accountable forms. After printing and verification, the forms would have to be packed
and shipped - roughly taking up a further two and a half weeks. Only then can we get
on with registration.
31) The first step in registration is, of course, filling the application for registration with the
Election Officer. The application, according to Section 17 of R.A. 8189, is then set for
hearing, with notice of that hearing being posted in the city or municipal bulletin board
for at least one week prior. Thus, if we held registrations on the 16th and the 17th the
posting requirement would be completed by the 24th. Considering that time must be
allowed for the filling of oppositions, the earliest that the Election Registration Board
can be convened for hearing would be the May 1st and 2nd.
32) Assuming and this is a big assumption that there are nit challenges to the applicants
right to register, the Election registration Board can immediately rule on the Applicants
registration, and post notices of its action by the 2nd until the 7th of May. By the 10th,
copies of the notice of the action taken by the Board will have already been furnished
to the applicants and the heads of registered political parties.
33) Only at this point can our Election Officers once again focus on the business of getting
ready for the elections. Once the results of the special registration are finalized, they
can be encoded and a new Computerized Voters List generated - at the earliest, by
May 11, after which the new CVL would be posted. Incidentally, it we were to follow
the letter of the law strictly, a May 11 posting date for the new CVL would be improper
since the R.A. 8189 provides that the CVL be posted at least 90 days before the
election.
34) Assuming optimistically that we can then finish the inspection, verification, and sealing
of the Book if Voters by May 15, we will already have overshot the May 14, election
date, and still not have finished our election preparations.
35) After this point, we could have to prepare the allocation of Official Ballots, Election
Returns, and other Non-Accountable Forms and Supplies to be used for the new
registrants. Once the allocation is ready, the contracts would be awarded, the various
forms printed, delivered, verified, and finally shipped out to the different
municipalities. All told, this process would take approximately 26 days, from the
15th of May until June 10.
36) Only then can we truly say that we are ready to hold the elections.
xxx xxx xxx.[14]
It is an accepted doctrine in administrative law that the determination of administrative agency as
to the operation, implementation and application of a law would be accorded great weight considering
that these specialized government bodies are, by their nature and functions, in the best position to know
what they can possibly do or not do, under prevailing circumstances.
Beyond this, it is likewise well-settled that the law does not require that the impossible be
done.[15] The law obliges no one to perform an impossibility, expressed in the maxim, nemo tenetur ad
impossible.[16] In other words, there is no obligation to do an impossible thing. Impossibilium nulla
obligato est. Hence, a statute may not be so construed as to require compliance with what it prescribes
cannot, at the time, be legally, coincidentally[17], it must be presumed that the legislature did not at all
intend an interpretation or application of a law which is far removed from the realm of the
possible. Truly, in the interpretation of statutes, the interpretation to be given must be such that it is in
accordance with logic, common sense, reasonableness and practicality. Thus, we are of the considered
view that the stand-by power of the respondent COMELEC under Section 28 of R.A. 8436, presupposes
the possibility of its being exercised or availed of, and not otherwise.
Further, petitioners bare allegation that they were disenfranchised when respondent COMELEC
pegged the registration deadline on December 27, 2000 instead of January 13, 2001 the day before the
period before the May 14, 2001 regular elections commences is, to our mind, not sufficient. On this
matter, there is no allegation in the two consolidated petitions and the records are bereft of any showing
that anyone of herein petitioners has filed an application to be registered as a voter which was denied by
the COMELEC nor filed a complaint before the respondent COMELEC alleging that he or she proceeded
to the Office of the Election Officer to register between the period starting from December 28, 2000 to
January 13, 2001, and that he or she was disallowed or barred by respondent COMELEC from filing his
application for registration. While it may be true that respondent COMELEC set the registration deadline
on December 27, 2000, this Court is of the Firm view that petitioners were not totally denied the
opportunity to avail of the continuing registration under R.A. 8189. Stated in a different manner, the
petitioners in the instant case are not without fault or blame. They admit in their petition[18] that they
failed to register, for whatever reason, within the period of registration and came to this Court and
invoked its protective mantle not realizing, so to speak, the speck in their eyes. Impuris minibus nemo
accedat curiam. Let no one come to court with unclean hands.
In a similar vein, well-entrenched is the rule in our jurisdiction that the law aids the vigilant and
not those who slumber on their rights. Vigilantis sed non dormientibus jura in re subveniunt.
Applying the foregoing, this court is of the firm view that respondent COMELEC did not commit an
abuse of discretion, much less be adjudged to have committed the same in some patent, whimsical and
arbitrary manner, in issuing Resolution No. 3584 which, in respondents own terms, resolved to deny the
request to conduct a two-day additional registration of new voters on February 17 and 18, 2001.
 On this particular matter, grave abuse of discretion implies a capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction, or, when the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to
amount to an evasion of positive duty enjoined or to act at all in contemplation of laws.[19]

Under these circumstances, we rule that the COMELEC, in denying the request of petitioners to
hold a special registration, acted within the bounds and confines of the applicable law on the matter --
Section 8 of RA 8189. In issuing the assailed Resolution, respondent COMELEC simply performed its
constitutional task to enforce and administer all laws and regulations relative to the conduct of an
election,[20] inter alia, questions relating to the registration of voters; evidently, respondent COMELEC
merely exercised a prerogative that chiefly pertains to it and one which squarely falls within the proper
sphere of its constitutionally-mandated powers. Hence, whatever action respondent takes in the
exercise of its wide latitude of discretion, specifically on matters involving voters registration, pertains to
the wisdom rather than the legality of the act. Accordingly, in the absence of clear showing of grave
abuse of power of discretion on the part of respondent COMELEC, this Court may not validly conduct an
incursion and meddle with affairs exclusively within the province of respondent COMELEC a body
accorded by no less than the fundamental law with independence.

As to petitioners prayer for the issuance of the writ of mandamus, we hold that this Court cannot,
in view of the very nature of such extraordinary writ, issue the same without transgressing the time-
honored principles in this jurisdiction.

As an extraordinary writ, the remedy of mandamus lies only to compel an officer to perform a
ministerial duty, not a discretionary one; mandamus will not issue to control the exercise of discretion of
a public officer where the law imposes upon him the duty to exercise his judgment in reference to any
manner in which he is required to act, because it is his judgment that is to be exercised and not that of
the court.[21]

Considering the circumstances where the writ of mandamus lies and the peculiarities of the
present case, we are of the firm belief that petitioners failed to establish, to the satisfaction of this Court,
that they are entitled to the issuance of this extraordinary writ so as to effectively compel respondent
COMELEC to conduct a special registration of voters. For the determination of whether or not the
conduct of a special registration of voters is feasible, possible or practical within the remaining period
before the actual date of election, involves the exercise of discretion and thus, cannot be controlled by
mandamus.

In Bayan vs. Executive Secretary Zamora and related cases,[22] we enunciated that the Courts
function, as sanctioned by Article VIII, Section 1, is merely (to) check whether or not the governmental
branch or agency has gone beyond the constitutional limits of its jurisdiction, not that it erred or has a
different view. In the absence of a showing...(of) grave abuse of discretion amounting to lack of
jurisdiction, there is no occasion for the Court to exercise its corrective power... It has no power to look
into what it thinks is apparent error.[23]

Finally, the Court likewise takes judicial notice of the fact that the President has issued
Proclamation No. 15 calling Congress to a Special Session on March 19, 2001, to allow the conduct of
Special Registration of new voters. House Bill No. 12930 has been filed before the Lower House, which
bill seeks to amend R.A. 8189 as to the 120-day prohibitive period provided for under said law. Similarly,
Senate Bill No. 2276[24] was filed before the Senate, with the same intention to amend the aforesaid law
and, in effect, allow the conduct of special registration before the May 14, 2001 General Elections.This
Court views the foregoing factual circumstances as a clear intimation on the part of both the executive
and legislative departments that a legal obstacle indeed stands in the way of the conduct by the
Commission on Elections of a special registration before the May 14, 2001 General Elections.

WHEREFORE, premises considered, the instant petitions for certiorari and mandamus are hereby
DENIED.

SO ORDERED.
Republic of the Philippines against the establishment or opening by aliens actually engaged in the retail business of additional stores
SUPREME COURT or branches of retail business, (6) a provision requiring aliens actually engaged in the retail business to
Manila present for registration with the proper authorities a verified statement concerning their businesses,
giving, among other matters, the nature of the business, their assets and liabilities and their offices and
principal offices of judicial entities; and (7) a provision allowing the heirs of aliens now engaged in the
EN BANC
retail business who die, to continue such business for a period of six months for purposes of liquidation.

G.R. No. L-7995 May 31, 1957

III. Grounds upon which petition is based-Answer thereto

LAO H. ICHONG, in his own behalf and in behalf of other alien residents, corporations and partnerships
Petitioner, for and in his own behalf and on behalf of other alien residents corporations and partnerships
adversely affected. by Republic Act No. 1180, petitioner,
adversely affected by the provisions of Republic Act. No. 1180, brought this action to obtain a judicial
vs.
declaration that said Act is unconstitutional, and to enjoin the Secretary of Finance and all other persons
JAIME HERNANDEZ, Secretary of Finance, and MARCELINO SARMIENTO, City Treasurer of
acting under him, particularly city and municipal treasurers, from enforcing its provisions. Petitioner
Manila,respondents.
attacks the constitutionality of the Act, contending that: (1) it denies to alien residents the equal
protection of the laws and deprives of their liberty and property without due process of law ; (2) the
Ozaeta, Lichauco and Picazo and Sycip, Quisumbing, Salazar and Associates for petitioner. subject of the Act is not expressed or comprehended in the title thereof; (3) the Act violates
Office of the Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for respondent international and treaty obligations of the Republic of the Philippines; (4) the provisions of the Act
Secretary of Finance. against the transmission by aliens of their retail business thru hereditary succession, and those requiring
City Fiscal Eugenio Angeles and Assistant City Fiscal Eulogio S. Serrano for respondent City Treasurer. 100% Filipino capitalization for a corporation or entity to entitle it to engage in the retail business, violate
Dionisio Reyes as Amicus Curiae. the spirit of Sections 1 and 5, Article XIII and Section 8 of Article XIV of the Constitution.
Marcial G. Mendiola as Amicus Curiae.
Emiliano R. Navarro as Amicus Curiae.
In answer, the Solicitor-General and the Fiscal of the City of Manila contend that: (1) the Act was passed
in the valid exercise of the police power of the State, which exercise is authorized in the Constitution in
LABRADOR, J.: the interest of national economic survival; (2) the Act has only one subject embraced in the title; (3) no
treaty or international obligations are infringed; (4) as regards hereditary succession, only the form is
I. The case and issue, in general affected but the value of the property is not impaired, and the institution of inheritance is only of
statutory origin.

This Court has before it the delicate task of passing upon the validity and constitutionality of a legislative
enactment, fundamental and far-reaching in significance. The enactment poses questions of due process,
police power and equal protection of the laws. It also poses an important issue of fact, that is whether
the conditions which the disputed law purports to remedy really or actually exist. Admittedly springing
from a deep, militant, and positive nationalistic impulse, the law purports to protect citizen and country
from the alien retailer. Through it, and within the field of economy it regulates, Congress attempts to
translate national aspirations for economic independence and national security, rooted in the drive and
urge for national survival and welfare, into a concrete and tangible measures designed to free the
national retailer from the competing dominance of the alien, so that the country and the nation may be
free from a supposed economic dependence and bondage. Do the facts and circumstances justify the
enactment?
II. Pertinent provisions of Republic Act No. 1180
Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In effect it nationalizes the
retail trade business. The main provisions of the Act are: (1) a prohibition against persons, not citizens of
the Philippines, and against associations, partnerships, or corporations the capital of which are not
wholly owned by citizens of the Philippines, from engaging directly or indirectly in the retail trade; (2) an
exception from the above prohibition in favor of aliens actually engaged in said business on May 15,
1954, who are allowed to continue to engaged therein, unless their licenses are forfeited in accordance
with the law, until their death or voluntary retirement in case of natural persons, and for ten years after
the approval of the Act or until the expiration of term in case of juridical persons; (3) an exception
therefrom in favor of citizens and juridical entities of the United States; (4) a provision for the forfeiture
of licenses (to engage in the retail business) for violation of the laws on nationalization, control weights
and measures and labor and other laws relating to trade, commerce and industry; (5) a prohibition
IV. Preliminary consideration of legal principles involved
a. The police power.
There is no question that the Act was approved in the exercise of the police power, but petitioner claims
that its exercise in this instance is attended by a violation of the constitutional requirements of due
process and equal protection of the laws. But before proceeding to the consideration and resolution of
the ultimate issue involved, it would be well to bear in mind certain basic and fundamental, albeit
preliminary, considerations in the determination of the ever recurrent conflict between police power
and the guarantees of due process and equal protection of the laws. What is the scope of police power,
and how are the due process and equal protection clauses related to it? What is the province and power
of the legislature, and what is the function and duty of the courts? These consideration must be clearly
and correctly understood that their application to the facts of the case may be brought forth with clarity
and the issue accordingly resolved.
It has been said the police power is so far - reaching in scope, that it has become almost impossible to
limit its sweep. As it derives its existence from the very existence of the State itself, it does not need to
be expressed or defined in its scope; it is said to be co-extensive with self-protection and survival, and as
such it is the most positive and active of all governmental processes, the most essential, insistent and
illimitable. Especially is it so under a modern democratic framework where the demands of society and
of nations have multiplied to almost unimaginable proportions; the field and scope of police power has
become almost boundless, just as the fields of public interest and public welfare have become almost all-
embracing and have transcended human foresight. Otherwise stated, as we cannot foresee the needs
and demands of public interest and welfare in this constantly changing and progressive world, so we
cannot delimit beforehand the extent or scope of police power by which and through which the State
seeks to attain or achieve interest or welfare. So it is that Constitutions do not define the scope or extent
of the police power of the State; what they do is to set forth the limitations thereof. The most important
of these are the due process clause and the equal protection clause.
b. Limitations on police power.
The basic limitations of due process and equal protection are found in the following provisions of our
Constitution:
SECTION 1.(1) No person shall be deprived of life, liberty or property without due process of
law, nor any person be denied the equal protection of the laws. (Article III, Phil. Constitution)
These constitutional guarantees which embody the essence of individual liberty and freedom in
democracies, are not limited to citizens alone but are admittedly universal in their application, without
regard to any differences of race, of color, or of nationality. (Yick Wo vs. Hopkins, 30, L. ed. 220, 226.)
c. The, equal protection clause.
The equal protection of the law clause is against undue favor and individual or class privilege, as well as
hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation, which is
limited either in the object to which it is directed or by territory within which is to operate. It does not
demand absolute equality among residents; it merely requires that all persons shall be treated
alike, under like circumstances and 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 exists for
making a distinction between those who fall within such class and those who do not. (2 Cooley,
Constitutional Limitations, 824-825.)
d. The due process clause.
The due process clause has to do with the reasonableness of legislation enacted in pursuance of the
police power. Is there public interest, a public purpose; is public welfare involved? Is the Act reasonably
necessary for the accomplishment of the legislature's purpose; is it not unreasonable, arbitrary or
oppressive? Is there sufficient foundation or reason in connection with the matter involved; or has there
not been a capricious use of the legislative power? Can the aims conceived be achieved by the means
used, or is it not merely an unjustified interference with private interest? These are the questions that
we ask when the due process test is applied.
The conflict, therefore, between police power and the guarantees of due process and equal protection of
the laws is more apparent than real. Properly related, the power and the guarantees are supposed to
coexist. The balancing is the essence or, shall it be said, the indispensable means for the attainment of
legitimate aspirations of any democratic society. There can be no absolute power, whoever exercise it,
for that would be tyranny. Yet there can neither be absolute liberty, for that would mean license and
anarchy. So the State can deprive persons of life, liberty and property, provided there is due process of
law; and persons may be classified into classes and groups, provided everyone is given the equal
protection of the law. The test or standard, as always, is reason. The police power legislation must be
firmly grounded on public interest and welfare, and a reasonable relation must exist between purposes
and means. And if distinction and classification has been made, there must be a reasonable basis for said
distinction.
e. Legislative discretion not subject to judicial review.
Now, in this matter of equitable balancing, what is the proper place and role of the courts? It must not
be overlooked, in the first place, that the legislature, which is the constitutional repository of police
power and exercises the prerogative of determining the policy of the State, is by force of circumstances
primarily the judge of necessity, adequacy or reasonableness and wisdom, of any law promulgated in the
exercise of the police power, or of the measures adopted to implement the public policy or to achieve
public interest. On the other hand, courts, although zealous guardians of individual liberty and right,
have nevertheless evinced a reluctance to interfere with the exercise of the legislative prerogative. They
have done so early where there has been a clear, patent or palpable arbitrary and unreasonable abuse of
the legislative prerogative. Moreover, courts are not supposed to override legitimate policy, and courts
never inquire into the wisdom of the law.
V. Economic problems sought to be remedied
With the above considerations in mind, we will now proceed to delve directly into the issue involved. If
the disputed legislation were merely a regulation, as its title indicates, there would be no question that it
falls within the legitimate scope of legislative power. But it goes further and prohibits a group of
residents, the aliens, from engaging therein. The problem becomes more complex because its subject is
a common, trade or occupation, as old as society itself, which from the immemorial has always been
open to residents, irrespective of race, color or citizenship.
a. Importance of retail trade in the economy of the nation.
In a primitive economy where families produce all that they consume and consume all that they
produce, the dealer, of course, is unknown. But as group life develops and families begin to live in
communities producing more than what they consume and needing an infinite number of things they do
not produce, the dealer comes into existence. As villages develop into big communities and
specialization in production begins, the dealer's importance is enhanced. Under modern conditions and
standards of living, in which man's needs have multiplied and diversified to unlimited extents and
proportions, the retailer comes as essential as the producer, because thru him the infinite variety of
articles, goods and needed for daily life are placed within the easy reach of consumers. Retail dealers
perform the functions of capillaries in the human body, thru which all the needed food and supplies are
ministered to members of the communities comprising the nation.
There cannot be any question about the importance of the retailer in the life of the community. He
ministers to the resident's daily needs, food in all its increasing forms, and the various little gadgets and
things needed for home and daily life. He provides his customers around his store with the rice or corn,
the fish, the salt, the vinegar, the spices needed for the daily cooking. He has cloths to sell, even the
needle and the thread to sew them or darn the clothes that wear out. The retailer, therefore, from the
lowly peddler, the owner of a small sari-sari store, to the operator of a department store or, a
supermarket is so much a part of day-to-day existence.
b. The alien retailer's trait.
The alien retailer must have started plying his trades in this country in the bigger centers of population
(Time there was when he was unknown in provincial towns and villages). Slowly but gradually be invaded
towns and villages; now he predominates in the cities and big centers of population. He even pioneers, in
far away nooks where the beginnings of community life appear, ministering to the daily needs of the
residents and purchasing their agricultural produce for sale in the towns. It is an undeniable fact that in
many communities the alien has replaced the native retailer. He has shown in this trade, industry Chinese .......... 12,087 93,155,459 29.38 294,894,227
without limit, and the patience and forbearance of a slave.
Others .......... 422 10,514,675 3.32 9,995,402

Derogatory epithets are hurled at him, but he laughs these off without murmur; insults of ill-bred and 1949:
insolent neighbors and customers are made in his face, but he heeds them not, and he forgets and Filipino .......... 113,659 213,451,602 60.89 462,532,901
forgives. The community takes note of him, as he appears to be harmless and extremely useful.
Chinese .......... 16,248 125,223,336 35.72 392,414,875

c. Alleged alien control and dominance. Others .......... 486 12,056,365 3.39 10,078,364
1951:
There is a general feeling on the part of the public, which appears to be true to fact, about the Filipino ......... 119,352 224,053,620 61.09 466,058,052
controlling and dominant position that the alien retailer holds in the nation's economy. Food and other
essentials, clothing, almost all articles of daily life reach the residents mostly through him. In big cities Chinese .......... 17,429 134,325,303 36.60 404,481,384
and centers of population he has acquired not only predominance, but apparent control over Others .......... 347 8,614,025 2.31 7,645,327
distribution of almost all kinds of goods, such as lumber, hardware, textiles, groceries, drugs, sugar, flour,
garlic, and scores of other goods and articles. And were it not for some national corporations like the
Naric, the Namarco, the Facomas and the Acefa, his control over principal foods and products would
easily become full and complete.

AVERAGE
Petitioner denies that there is alien predominance and control in the retail trade. In one breath it is said ASSETS AND GROSS SALES PER ESTABLISHMENT
that the fear is unfounded and the threat is imagined; in another, it is charged that the law is merely the
result of radicalism and pure and unabashed nationalism. Alienage, it is said, is not an element of Item
control; also so many unmanageable factors in the retail business make control virtually impossible. The Year and Retailer's Gross Sales
Assets
first argument which brings up an issue of fact merits serious consideration. The others are matters of Nationality (Pesos)
(Pesos)
opinion within the exclusive competence of the legislature and beyond our prerogative to pass upon and
decide.
1941:

The best evidence are the statistics on the retail trade, which put down the figures in black and white. Filipino ............................................. 1,878 1,633
Between the constitutional convention year (1935), when the fear of alien domination and control of the
retail trade already filled the minds of our leaders with fears and misgivings, and the year of the Chinese .............................................. 7,707 9,691
enactment of the nationalization of the retail trade act (1954), official statistics unmistakably point out to
the ever-increasing dominance and control by the alien of the retail trade, as witness the following Others ............................................... 24,415 8,281
tables:
1947:
Assets Gross Sales
Filipino ............................................. 1,878 2,516
Year and Retailers No.- Per cent Per cent
Pesos Pesos
Nationality Establishments Distribution Distribution Chinese ........................................... 7,707 14,934
1941:
Others .............................................. 24,749 13,919
Filipino .......... 106,671 200,323,138 55.82 174,181,924 51.74
Chinese ........... 15,356 118,348,692 32.98 148,813,239 44.21 1948: (Census)
Others ............ 1,646 40,187,090 11.20 13,630,239 4.05
Filipino ............................................. 1,878 4,111
1947:
Filipino .......... 111,107 208,658,946 65.05 279,583,333 57.03 Chinese ............................................. 7,707 24,398
Chinese ........... 13,774 106,156,218 33.56 205,701,134 41.96
Others .............................................. 24,916 23,686
Others ........... 354 8,761,260 .49 4,927,168 1.01
1948: (Census) 1949:

Filipino .......... 113,631 213,342,264 67.30 467,161,667 60.51 Filipino ............................................. 1,878 4,069

Chinese ..............................................
Others ..............................................
1951:
assume the initiative, if not the leadership, in the struggle for the economic freedom of the
7,707 24,152
nation in somewhat the same way that it did in the crusade for political freedom. Thus . . . it
(the Constitution) envisages an organized movement for the protection of the nation not only
24,807 20,737 against the possibilities of armed invasion but also against its economic subjugation by alien
interests in the economic field. (Phil. Political Law by Sinco, 10th ed., p. 476.)

Filipino ............................................. 1,877 3,905
Chinese ............................................. 7,707 33,207
Others ............................................... 24,824 22,033
(Estimated Assets and Gross Sales of Retail Establishments, By Year and Nationality of
Owners, Benchmark: 1948 Census, issued by the Bureau of Census and Statistics, Department
of Commerce and Industry; pp. 18-19 of Answer.)
The above statistics do not include corporations and partnerships, while the figures on Filipino
establishments already include mere market vendors, whose capital is necessarily small..
The above figures reveal that in percentage distribution of assests and gross sales, alien participation has
steadily increased during the years. It is true, of course, that Filipinos have the edge in the number of
retailers, but aliens more than make up for the numerical gap through their assests and gross sales which
average between six and seven times those of the very many Filipino retailers. Numbers in retailers,
here, do not imply superiority; the alien invests more capital, buys and sells six to seven times more, and
gains much more. The same official report, pointing out to the known predominance of foreign elements
in the retail trade, remarks that the Filipino retailers were largely engaged in minor retailer enterprises.
As observed by respondents, the native investment is thinly spread, and the Filipino retailer is practically
helpless in matters of capital, credit, price and supply.
d. Alien control and threat, subject of apprehension in Constitutional convention.
It is this domination and control, which we believe has been sufficiently shown to exist, that is the
legislature's target in the enactment of the disputed nationalization would never have been adopted.
The framers of our Constitution also believed in the existence of this alien dominance and control when
they approved a resolution categorically declaring among other things, that "it is the sense of the
Convention that the public interest requires the nationalization of the retail trade; . . . ." (II Aruego, The
Framing of the Philippine Constitution, 662-663, quoted on page 67 of Petitioner.) That was twenty-two
years ago; and the events since then have not been either pleasant or comforting. Dean Sinco of the
University of the Philippines College of Law, commenting on the patrimony clause of the Preamble
opines that the fathers of our Constitution were merely translating the general preoccupation of Filipinos
"of the dangers from alien interests that had already brought under their control the commercial and
other economic activities of the country" (Sinco, Phil. Political Law, 10th ed., p. 114); and analyzing the
concern of the members of the constitutional convention for the economic life of the citizens, in
connection with the nationalistic provisions of the Constitution, he says:
But there has been a general feeling that alien dominance over the economic life of the
country is not desirable and that if such a situation should remain, political independence
alone is no guarantee to national stability and strength. Filipino private capital is not big
enough to wrest from alien hands the control of the national economy. Moreover, it is but of
recent formation and hence, largely inexperienced, timid and hesitant. Under such
conditions, the government as the instrumentality of the national will, has to step in and
Belief in the existence of alien control and predominance is felt in other quarters. Filipino businessmen,
manufacturers and producers believe so; they fear the dangers coming from alien control, and they
express sentiments of economic independence. Witness thereto is Resolution No. 1, approved on July
18, 1953, of the Fifth National convention of Filipino Businessmen, and a similar resolution, approved on
March 20, 1954, of the Second National Convention of Manufacturers and Producers. The man in the
street also believes, and fears, alien predominance and control; so our newspapers, which have
editorially pointed out not only to control but to alien stranglehold. We, therefore, find alien domination
and control to be a fact, a reality proved by official statistics, and felt by all the sections and groups that
compose the Filipino community.
e. Dangers of alien control and dominance in retail.
But the dangers arising from alien participation in the retail trade does not seem to lie in the
predominance alone; there is a prevailing feeling that such predominance may truly endanger the
national interest. With ample capital, unity of purpose and action and thorough organization, alien
retailers and merchants can act in such complete unison and concert on such vital matters as the fixing
of prices, the determination of the amount of goods or articles to be made available in the market, and
even the choice of the goods or articles they would or would not patronize or distribute, that fears of
dislocation of the national economy and of the complete subservience of national economy and of the
consuming public are not entirely unfounded. Nationals, producers and consumers alike can be placed
completely at their mercy. This is easily illustrated. Suppose an article of daily use is desired to be
prescribed by the aliens, because the producer or importer does not offer them sufficient profits, or
because a new competing article offers bigger profits for its introduction. All that aliens would do is to
agree to refuse to sell the first article, eliminating it from their stocks, offering the new one as a
substitute. Hence, the producers or importers of the prescribed article, or its consumers, find the article
suddenly out of the prescribed article, or its consumers, find the article suddenly out of circulation.
Freedom of trade is thus curtailed and free enterprise correspondingly suppressed.
We can even go farther than theoretical illustrations to show the pernicious influences of alien
domination. Grave abuses have characterized the exercise of the retail trade by aliens. It is a fact within
judicial notice, which courts of justice may not properly overlook or ignore in the interests of truth and
justice, that there exists a general feeling on the part of the public that alien participation in the retail
trade has been attended by a pernicious and intolerable practices, the mention of a few of which would
suffice for our purposes; that at some time or other they have cornered the market of essential
commodities, like corn and rice, creating artificial scarcities to justify and enhance profits to
unreasonable proportions; that they have hoarded essential foods to the inconvenience and prejudice of
the consuming public, so much so that the Government has had to establish the National Rice and Corn
Corporation to save the public from their continuous hoarding practices and tendencies; that they have
violated price control laws, especially on foods and essential commodities, such that the legislature had
to enact a law (Sec. 9, Republic Act No. 1168), authorizing their immediate and automatic deportation
for price control convictions; that they have secret combinations among themselves to control prices,
cheating the operation of the law of supply and demand; that they have connived to boycott honest
merchants and traders who would not cater or yield to their demands, in unlawful restraint of freedom
of trade and enterprise. They are believed by the public to have evaded tax laws, smuggled goods and
money into and out of the land, violated import and export prohibitions, control laws and the like, in
derision and contempt of lawful authority. It is also believed that they have engaged in corrupting public
officials with fabulous bribes, indirectly causing the prevalence of graft and corruption in the
Government. As a matter of fact appeals to unscrupulous aliens have been made both by the
Government and by their own lawful diplomatic representatives, action which impliedly admits a
prevailing feeling about the existence of many of the above practices.
The circumstances above set forth create well founded fears that worse things may come in the future.
The present dominance of the alien retailer, especially in the big centers of population, therefore,
becomes a potential source of danger on occasions of war or other calamity. We do not have here in this
country isolated groups of harmless aliens retailing goods among nationals; what we have are well
organized and powerful groups that dominate the distribution of goods and commodities in the
communities and big centers of population. They owe no allegiance or loyalty to the State, and the State
cannot rely upon them in times of crisis or emergency. While the national holds his life, his person and
his property subject to the needs of his country, the alien may even become the potential enemy of the
State.
f. Law enacted in interest of national economic survival and security.
We are fully satisfied upon a consideration of all the facts and circumstances that the disputed law is not
the product of racial hostility, prejudice or discrimination, but the expression of the legitimate desire and
determination of the people, thru their authorized representatives, to free the nation from the economic
situation that has unfortunately been saddled upon it rightly or wrongly, to its disadvantage. The law is
clearly in the interest of the public, nay of the national security itself, and indisputably falls within the
scope of police power, thru which and by which the State insures its existence and security and the
supreme welfare of its citizens.
VI. The Equal Protection Limitation
a. Objections to alien participation in retail trade. The next question that now poses solution is, Does
the law deny the equal protection of the laws? As pointed out above, the mere fact of alienage is the
root and cause of the distinction between the alien and the national as a trader. The alien resident owes
allegiance to the country of his birth or his adopted country; his stay here is for personal convenience; he
is attracted by the lure of gain and profit. His aim or purpose of stay, we admit, is neither illegitimate nor
immoral, but he is naturally lacking in that spirit of loyalty and enthusiasm for this country where he
temporarily stays and makes his living, or of that spirit of regard, sympathy and consideration for his
Filipino customers as would prevent him from taking advantage of their weakness and exploiting them.
The faster he makes his pile, the earlier can the alien go back to his beloved country and his beloved kin
and countrymen. The experience of the country is that the alien retailer has shown such utter disregard
for his customers and the people on whom he makes his profit, that it has been found necessary to
adopt the legislation, radical as it may seem.
Another objection to the alien retailer in this country is that he never really makes a genuine
contribution to national income and wealth. He undoubtedly contributes to general distribution, but the
gains and profits he makes are not invested in industries that would help the country's economy and
increase national wealth. The alien's interest in this country being merely transient and temporary, it
would indeed be ill-advised to continue entrusting the very important function of retail distribution to
his hands.
The practices resorted to by aliens in the control of distribution, as already pointed out above, their
secret manipulations of stocks of commodities and prices, their utter disregard of the welfare of their
customers and of the ultimate happiness of the people of the nation of which they are mere guests,
which practices, manipulations and disregard do not attend the exercise of the trade by the nationals,
show the existence of real and actual, positive and fundamental differences between an alien and a
national which fully justify the legislative classification adopted in the retail trade measure. These
differences are certainly a valid reason for the State to prefer the national over the alien in the retail
trade. We would be doing violence to fact and reality were we to hold that no reason or ground for a
legitimate distinction can be found between one and the other.
b. Difference in alien aims and purposes sufficient basis for distinction.
The above objectionable characteristics of the exercise of the retail trade by the aliens, which are actual
and real, furnish sufficient grounds for legislative classification of retail traders into nationals and aliens.
Some may disagree with the wisdom of the legislature's classification. To this we answer, that this is the
prerogative of the law-making power. Since the Court finds that the classification is actual, real and
reasonable, and all persons of one class are treated alike, and as it cannot be said that the classification
is patently unreasonable and unfounded, it is in duty bound to declare that the legislature acted within
its legitimate prerogative and it can not declare that the act transcends the limit of equal protection
established by the Constitution.
Broadly speaking, the power of the legislature to make distinctions and classifications among persons is
not curtailed or denied by the equal protection of the laws clause. The legislative power admits of a wide
scope of discretion, and a law can be violative of the constitutional limitation only when the classification
is without reasonable basis. In addition to the authorities we have earlier cited, we can also refer to the
case of Linsey vs. Natural Carbonic Fas Co. (1911), 55 L. ed., 369, which clearly and succinctly defined the
application of equal protection clause to a law sought to be voided as contrary thereto:
. . . . "1. The equal protection clause of the Fourteenth Amendment does not take from the
state the power to classify in the adoption of police laws, but admits of the exercise of the
wide scope of discretion in that regard, and avoids what is done only when it is without any
reasonable basis, and therefore is purely arbitrary. 2. A classification having some reasonable
basis does not offend against that clause merely because it is not made with mathematical
nicety, or because in practice it results in some inequality. 3. When the classification in such a
law is called in question, if any state of facts reasonably can be conceived that would sustain
it, the existence of that state of facts at the time the law was enacted must be assumed. 4.
One who assails the classification in such a law must carry the burden of showing that it does
not rest upon any reasonable basis but is essentially arbitrary."
c. Authorities recognizing citizenship as basis for classification.
The question as to whether or not citizenship is a legal and valid ground for classification has already
been affirmatively decided in this jurisdiction as well as in various courts in the United States. In the case
of Smith Bell & Co. vs. Natividad, 40 Phil. 136, where the validity of Act No. 2761 of the Philippine
Legislature was in issue, because of a condition therein limiting the ownership of vessels engaged in
coastwise trade to corporations formed by citizens of the Philippine Islands or the United States, thus
denying the right to aliens, it was held that the Philippine Legislature did not violate the equal protection
clause of the Philippine Bill of Rights. The legislature in enacting the law had as ultimate purpose the
encouragement of Philippine shipbuilding and the safety for these Islands from foreign interlopers. We
held that this was a valid exercise of the police power, and all presumptions are in favor of its
constitutionality. In substance, we held that the limitation of domestic ownership of vessels engaged in
coastwise trade to citizens of the Philippines does not violate the equal protection of the law and due
process or law clauses of the Philippine Bill of Rights. In rendering said decision we quoted with approval
the concurring opinion of Justice Johnson in the case of Gibbons vs. Ogden, 9 Wheat., I, as follows:
"Licensing acts, in fact, in legislation, are universally restraining acts; as, for example, acts
licensing gaming houses, retailers of spirituous liquors, etc. The act, in this instance, is
distinctly of that character, and forms part of an extensive system, the object of which is to
 encourage American shipping, and place them on an equal footing with the shipping of other
nations. Almost every commercial nation reserves to its own subjects a monopoly of its
coasting trade; and a countervailing privilege in favor of American shipping is contemplated,
in the whole legislation of the United States on this subject. It is not to give the vessel an
American character, that the license is granted; that effect has been correctly attributed to
the act of her enrollment. But it is to confer on her American privileges, as contra
distinguished from foreign; and to preserve the Government from fraud by foreigners; in
surreptitiously intruding themselves into the American commercial marine, as well as frauds
upon the revenue in the trade coastwise, that this whole system is projected."
The rule in general is as follows:
Aliens are under no special constitutional protection which forbids a classification otherwise
justified simply because the limitation of the class falls along the lines of nationality. That
would be requiring a higher degree of protection for aliens as a class than for similar classes
than for similar classes of American citizens. Broadly speaking, the difference in status
between citizens and aliens constitutes a basis for reasonable classification in the exercise of
police power. (2 Am., Jur. 468-469.)
In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a statute on the licensing of hawkers
and peddlers, which provided that no one can obtain a license unless he is, or has declared his intention,
to become a citizen of the United States, was held valid, for the following reason: It may seem wise to
the legislature to limit the business of those who are supposed to have regard for the welfare, good
order and happiness of the community, and the court cannot question this judgment and conclusion.
In Bloomfield vs. State, 99 N. E. 309 (Ohio, 1912), a statute which prevented certain persons, among
them aliens, from engaging in the traffic of liquors, was found not to be the result of race hatred, or in
hospitality, or a deliberate purpose to discriminate, but was based on the belief that an alien cannot be
sufficiently acquainted with "our institutions and our life as to enable him to appreciate the relation of
this particular business to our entire social fabric", and was not, therefore, invalid. In Ohio ex rel. Clarke
vs. Deckebach, 274 U. S. 392, 71 L. ed. 115 (1926), the U.S. Supreme Court had under consideration an
ordinance of the city of Cincinnati prohibiting the issuance of licenses (pools and billiard rooms) to aliens.
It held that plainly irrational discrimination against aliens is prohibited, but it does not follow that alien
race and allegiance may not bear in some instances such a relation to a legitimate object of legislation as
to be made the basis of permitted classification, and that it could not state that the legislation is clearly
wrong; and that latitude must be allowed for the legislative appraisement of local conditions and for the
legislative choice of methods for controlling an apprehended evil. The case of State vs. Carrol, 124 N. E.
129 (Ohio, 1919) is a parallel case to the one at bar. In Asakura vs. City of Seattle, 210 P. 30 (Washington,
1922), the business of pawn brooking was considered as having tendencies injuring public interest, and
limiting it to citizens is within the scope of police power. A similar statute denying aliens the right to
engage in auctioneering was also sustained in Wright vs. May, L.R.A., 1915 P. 151 (Minnesota, 1914). So
also in Anton vs. Van Winkle, 297 F. 340 (Oregon, 1924), the court said that aliens are judicially known to
have different interests, knowledge, attitude, psychology and loyalty, hence the prohibitions of issuance
of licenses to them for the business of pawnbroker, pool, billiard, card room, dance hall, is not an
infringement of constitutional rights. In Templar vs. Michigan State Board of Examiners, 90 N.W. 1058
(Michigan, 1902), a law prohibiting the licensing of aliens as barbers was held void, but the reason for
the decision was the court's findings that the exercise of the business by the aliens does not in any way
affect the morals, the health, or even the convenience of the community. In Takahashi vs. Fish and Game
Commission, 92 L. ed. 1479 (1947), a California statute banning the issuance of commercial fishing
licenses to person ineligible to citizenship was held void, because the law conflicts with Federal power
over immigration, and because there is no public interest in the mere claim of ownership of the waters
and the fish in them, so there was no adequate justification for the discrimination. It further added that
the law was the outgrowth of antagonism toward the persons of Japanese ancestry. However, two
Justices dissented on the theory that fishing rights have been treated traditionally as natural resources.
In Fraser vs. McConway & Tarley Co., 82 Fed. 257 (Pennsylvania, 1897), a state law which imposed a tax
on every employer of foreign-born unnaturalized male persons over 21 years of age, was declared void
because the court found that there was no reason for the classification and the tax was an arbitrary
deduction from the daily wage of an employee.
d. Authorities contra explained.
It is true that some decisions of the Federal court and of the State courts in the United States hold that
the distinction between aliens and citizens is not a valid ground for classification. But in this decision the
laws declared invalid were found to be either arbitrary, unreasonable or capricious, or were the result or
product of racial antagonism and hostility, and there was no question of public interest involved or
pursued. In Yu Cong Eng vs. Trinidad, 70 L. ed. 1059 (1925), the United States Supreme Court declared
invalid a Philippine law making unlawful the keeping of books of account in any language other than
English, Spanish or any other local dialect, but the main reasons for the decisions are: (1) that if Chinese
were driven out of business there would be no other system of distribution, and (2) that the Chinese
would fall prey to all kinds of fraud, because they would be deprived of their right to be advised of their
business and to direct its conduct. The real reason for the decision, therefore, is the court's belief that no
public benefit would be derived from the operations of the law and on the other hand it would deprive
Chinese of something indispensable for carrying on their business. In Yick Wo vs. Hopkins, 30 L. ed 220
(1885) an ordinance conferring powers on officials to withhold consent in the operation of laundries
both as to persons and place, was declared invalid, but the court said that the power granted was
arbitrary, that there was no reason for the discrimination which attended the administration and
implementation of the law, and that the motive thereof was mere racial hostility. In State vs.
Montgomery, 47 A. 165 (Maine, 1900), a law prohibiting aliens to engage as hawkers and peddlers was
declared void, because the discrimination bore no reasonable and just relation to the act in respect to
which the classification was proposed.
The case at bar is radically different, and the facts make them so. As we already have said, aliens do not
naturally possess the sympathetic consideration and regard for the customers with whom they come in
daily contact, nor the patriotic desire to help bolster the nation's economy, except in so far as it
enhances their profit, nor the loyalty and allegiance which the national owes to the land. These
limitations on the qualifications of the aliens have been shown on many occasions and instances,
especially in times of crisis and emergency. We can do no better than borrow the language of Anton vs.
Van Winkle, 297 F. 340, 342, to drive home the reality and significance of the distinction between the
alien and the national, thus:
. . . . It may be judicially known, however, that alien coming into this country are without the
intimate knowledge of our laws, customs, and usages that our own people have. So it is
likewise known that certain classes of aliens are of different psychology from our fellow
countrymen. Furthermore, it is natural and reasonable to suppose that the foreign born,
whose allegiance is first to their own country, and whose ideals of governmental environment
and control have been engendered and formed under entirely different regimes and political
systems, have not the same inspiration for the public weal, nor are they as well disposed
toward the United States, as those who by citizenship, are a part of the government itself.
Further enlargement, is unnecessary. I have said enough so that obviously it cannot be
affirmed with absolute confidence that the Legislature was without plausible reason for
making the classification, and therefore appropriate discriminations against aliens as it relates
to the subject of legislation. . . . .
VII. The Due Process of Law Limitation.
a. Reasonability, the test of the limitation; determination by legislature decisive.
We now come to due process as a limitation on the exercise of the police power. It has been stated by
the highest authority in the United States that:
. . . . And the guaranty of due process, as has often been held, demands only that the law shall
not be unreasonable, arbitrary or capricious, and that the means selected shall have a real
and substantial relation to the subject sought to be attained. . . . .
xxx xxx xxx
So far as the requirement of due process is concerned and in the absence of other
constitutional restriction a state is free to adopt whatever economic policy may reasonably be
deemed to promote public welfare, and to enforce that policy by legislation adapted to its
purpose. The courts are without authority either to declare such policy, or, when it is declared
by the legislature, to override it. If the laws passed are seen to have a reasonable relation to a
proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of
due process are satisfied, and judicial determination to that effect renders a court functus
officio. . . . (Nebbia vs. New York, 78 L. ed. 940, 950, 957.)
Another authority states the principle thus:
. . . . Too much significance cannot be given to the word "reasonable" in considering the scope
of the police power in a constitutional sense, for the test used to determine the
constitutionality of the means employed by the legislature is to inquire whether the
restriction it imposes on rights secured to individuals by the Bill of Rights are unreasonable,
and not whether it imposes any restrictions on such rights. . . .
xxx xxx xxx
. . . . A statute to be within this power must also be reasonable in its operation upon the
persons whom it affects, must not be for the annoyance of a particular class, and must not be
unduly oppressive. (11 Am. Jur. Sec. 302., 1:1)- 1074-1075.)
In the case of Lawton vs. Steele, 38 L. ed. 385, 388. it was also held:
. . . . To justify the state in thus interposing its authority in behalf of the public, it must appear,
first, that the interests of the public generally, as distinguished from those of a particular
class, require such interference; and second, that the means are reasonably necessary for the
accomplishment of the purpose, and not unduly oppressive upon individuals. . . .
Prata Undertaking Co. vs. State Board of Embalming, 104 ALR, 389, 395, fixes this test of
constitutionality:
In determining whether a given act of the Legislature, passed in the exercise of the police
power to regulate the operation of a business, is or is not constitutional, one of the first
questions to be considered by the court is whether the power as exercised has a sufficient
foundation in reason in connection with the matter involved, or is an arbitrary, oppressive,
and capricious use of that power, without substantial relation to the health, safety, morals,
comfort, and general welfare of the public.
b. Petitioner's argument considered.
Petitioner's main argument is that retail is a common, ordinary occupation, one of those privileges long
ago recognized as essential to the orderly pursuant of happiness by free men; that it is a gainful and
honest occupation and therefore beyond the power of the legislature to prohibit and penalized. This
arguments overlooks fact and reality and rests on an incorrect assumption and premise, i.e., that in this
country where the occupation is engaged in by petitioner, it has been so engaged by him, by the alien in
an honest creditable and unimpeachable manner, without harm or injury to the citizens and without
ultimate danger to their economic peace, tranquility and welfare. But the Legislature has found, as we
have also found and indicated, that the privilege has been so grossly abused by the alien, thru the
illegitimate use of pernicious designs and practices, that he now enjoys a monopolistic control of the
occupation and threatens a deadly stranglehold on the nation's economy endangering the national
security in times of crisis and emergency.
The real question at issue, therefore, is not that posed by petitioner, which overlooks and ignores the
facts and circumstances, but this, Is the exclusion in the future of aliens from the retail trade
unreasonable. Arbitrary capricious, taking into account the illegitimate and pernicious form and manner
in which the aliens have heretofore engaged therein? As thus correctly stated the answer is clear. The
law in question is deemed absolutely necessary to bring about the desired legislative objective, i.e., to
free national economy from alien control and dominance. It is not necessarily unreasonable because it
affects private rights and privileges (11 Am. Jur. pp. 1080-1081.) The test of reasonableness of a law is
the appropriateness or adequacy under all circumstances of the means adopted to carry out its purpose
into effect (Id.) Judged by this test, disputed legislation, which is not merely reasonable but actually
necessary, must be considered not to have infringed the constitutional limitation of reasonableness.
The necessity of the law in question is explained in the explanatory note that accompanied the bill,
which later was enacted into law:
This bill proposes to regulate the retail business. Its purpose is to prevent persons who are
not citizens of the Philippines from having a strangle hold upon our economic life. If the
persons who control this vital artery of our economic life are the ones who owe no allegiance
to this Republic, who have no profound devotion to our free institutions, and who have no
permanent stake in our people's welfare, we are not really the masters of our destiny. All
aspects of our life, even our national security, will be at the mercy of other people.
In seeking to accomplish the foregoing purpose, we do not propose to deprive persons who
are not citizens of the Philippines of their means of livelihood. While this bill seeks to take
away from the hands of persons who are not citizens of the Philippines a power that can be
wielded to paralyze all aspects of our national life and endanger our national security it
respects existing rights.
The approval of this bill is necessary for our national survival.
If political independence is a legitimate aspiration of a people, then economic independence is none the
less legitimate. Freedom and liberty are not real and positive if the people are subject to the economic
control and domination of others, especially if not of their own race or country. The removal and
eradication of the shackles of foreign economic control and domination, is one of the noblest motives
that a national legislature may pursue. It is impossible to conceive that legislation that seeks to bring it
about can infringe the constitutional limitation of due process. The attainment of a legitimate aspiration
of a people can never be beyond the limits of legislative authority.
c. Law expressly held by Constitutional Convention to be within the sphere of legislative action.
The framers of the Constitution could not have intended to impose the constitutional restrictions of due
process on the attainment of such a noble motive as freedom from economic control and domination,
thru the exercise of the police power. The fathers of the Constitution must have given to the legislature
full authority and power to enact legislation that would promote the supreme happiness of the people,
their freedom and liberty. On the precise issue now before us, they expressly made their voice clear;
they adopted a resolution expressing their belief that the legislation in question is within the scope of
the legislative power. Thus they declared the their Resolution:
That it is the sense of the Convention that the public interest requires the nationalization of
retail trade; but it abstain from approving the amendment introduced by the Delegate for
Manila, Mr. Araneta, and others on this matter because it is convinced that the National
Assembly is authorized to promulgate a law which limits to Filipino and American citizens the
privilege to engage in the retail trade. (11 Aruego, The Framing of the Philippine Constitution,
quoted on pages 66 and 67 of the Memorandum for the Petitioner.)
It would do well to refer to the nationalistic tendency manifested in various provisions of the
Constitution. Thus in the preamble, a principle objective is the conservation of the patrimony of the
nation and as corollary the provision limiting to citizens of the Philippines the exploitation, development
and utilization of its natural resources. And in Section 8 of Article XIV, it is provided that "no franchise,
certificate, or any other form of authorization for the operation of the public utility shall be granted
except to citizens of the Philippines." The nationalization of the retail trade is only a continuance of the
nationalistic protective policy laid down as a primary objective of the Constitution. Can it be said that a
law imbued with the same purpose and spirit underlying many of the provisions of the Constitution is
unreasonable, invalid and unconstitutional?
The seriousness of the Legislature's concern for the plight of the nationals as manifested in the approval
of the radical measures is, therefore, fully justified. It would have been recreant to its duties towards the
country and its people would it view the sorry plight of the nationals with the complacency and refuse or
neglect to adopt a remedy commensurate with the demands of public interest and national survival. As
the repository of the sovereign power of legislation, the Legislature was in duty bound to face the
problem and meet, through adequate measures, the danger and threat that alien domination of retail
trade poses to national economy.
d. Provisions of law not unreasonable.
A cursory study of the provisions of the law immediately reveals how tolerant, how reasonable the
Legislature has been. The law is made prospective and recognizes the right and privilege of those already
engaged in the occupation to continue therein during the rest of their lives; and similar recognition of
the right to continue is accorded associations of aliens. The right or privilege is denied to those only upon
conviction of certain offenses. In the deliberations of the Court on this case, attention was called to the
fact that the privilege should not have been denied to children and heirs of aliens now engaged in the
retail trade. Such provision would defeat the law itself, its aims and purposes. Beside, the exercise of
legislative discretion is not subject to judicial review. It is well settled that the Court will not inquire into
the motives of the Legislature, nor pass upon general matters of legislative judgment. The Legislature is
primarily the judge of the necessity of an enactment or of any of its provisions, and every presumption is
in favor of its validity, and though the Court may hold views inconsistent with the wisdom of the law, it
may not annul the legislation if not palpably in excess of the legislative power. Furthermore, the test of
the validity of a law attacked as a violation of due process, is not its reasonableness, but its
unreasonableness, and we find the provisions are not unreasonable. These principles also answer
various other arguments raised against the law, some of which are: that the law does not promote
general welfare; that thousands of aliens would be thrown out of employment; that prices will increase
because of the elimination of competition; that there is no need for the legislation; that adequate
replacement is problematical; that there may be general breakdown; that there would be repercussions
from foreigners; etc. Many of these arguments are directed against the supposed wisdom of the law
which lies solely within the legislative prerogative; they do not import invalidity.
VIII. Alleged defect in the title of the law
A subordinate ground or reason for the alleged invalidity of the law is the claim that the title thereof is
misleading or deceptive, as it conceals the real purpose of the bill which is to nationalize the retail
business and prohibit aliens from engaging therein. The constitutional provision which is claimed to be
violated in Section 21 (1) of Article VI, which reads:
No bill which may be enacted in the law shall embrace more than one subject which shall be
expressed in the title of the bill.
What the above provision prohibits is duplicity, that is, if its title completely fails to appraise the
legislators or the public of the nature, scope and consequences of the law or its operation (I Sutherland,
Statutory Construction, Sec. 1707, p. 297.) A cursory consideration of the title and the provisions of the
bill fails to show the presence of duplicity. It is true that the term "regulate" does not and may not
readily and at first glance convey the idea of "nationalization" and "prohibition", which terms express the
two main purposes and objectives of the law. But "regulate" is a broader term than either prohibition or
nationalization. Both of these have always been included within the term regulation.
Under the title of an act to "regulate", the sale of intoxicating liquors, the Legislature may
prohibit the sale of intoxicating liquors. (Sweet vs. City of Wabash, 41 Ind., 7; quoted in page
41 of Answer.)
Within the meaning of the Constitution requiring that the subject of every act of the
Legislature shall be stated in the tale, the title to regulate the sale of intoxicating liquors, etc."
sufficiently expresses the subject of an act prohibiting the sale of such liquors to minors and
to persons in the habit of getting intoxicated; such matters being properly included within the
subject of regulating the sale. (Williams vs. State, 48 Ind. 306, 308, quoted in p. 42 of Answer.)
The word "regulate" is of broad import, and necessarily implies some degree of restraint and
prohibition of acts usually done in connection with the thing to be regulated. While word
regulate does not ordinarily convey meaning of prohibit, there is no absolute reason why it
should not have such meaning when used in delegating police power in connection with a
thing the best or only efficacious regulation of which involves suppression. (State vs. Morton,
162 So. 718, 182 La. 887, quoted in p. 42 of Answer.)
The general rule is for the use of general terms in the title of a bill; it has also been said that the title
need not be an index to the entire contents of the law (I Sutherland, Statutory Construction, See. 4803,
p. 345.) The above rule was followed the title of the Act in question adopted the more general term
"regulate" instead of "nationalize" or "prohibit". Furthermore, the law also contains other rules for the
regulation of the retail trade which may not be included in the terms "nationalization" or "prohibition";
so were the title changed from "regulate" to "nationalize" or "prohibit", there would have been many
provisions not falling within the scope of the title which would have made the Act invalid. The use of the
term "regulate", therefore, is in accord with the principle governing the drafting of statutes, under which
a simple or general term should be adopted in the title, which would include all other provisions found in
the body of the Act.
One purpose of the constitutional directive that the subject of a bill should be embraced in its title is to
apprise the legislators of the purposes, the nature and scope of its provisions, and prevent the
enactment into law of matters which have received the notice, action and study of the legislators or of
the public. In the case at bar it cannot be claimed that the legislators have been appraised of the nature
of the law, especially the nationalization and the prohibition provisions. The legislators took active
interest in the discussion of the law, and a great many of the persons affected by the prohibitions in the
law conducted a campaign against its approval. It cannot be claimed, therefore, that the reasons for
declaring the law invalid ever existed. The objection must therefore, be overruled.
however, is merely to determine if the law falls within the scope of legislative authority and does not
transcend the limitations of due process and equal protection guaranteed in the Constitution. Remedies
against the harshness of the law should be addressed to the Legislature; they are beyond our power and
jurisdiction.
The petition is hereby denied, with costs against petitioner.

IX. Alleged violation of international treaties and obligations

Another subordinate argument against the validity of the law is the supposed violation thereby of the
Charter of the United Nations and of the Declaration of the Human Rights adopted by the United Nations
General Assembly. We find no merit in the Nations Charter imposes no strict or legal obligations
regarding the rights and freedom of their subjects (Hans Kelsen, The Law of the United Nations, 1951 ed.
pp. 29-32), and the Declaration of Human Rights contains nothing more than a mere recommendation or
a common standard of achievement for all peoples and all nations (Id. p. 39.) That such is the import of
the United Nations Charter aid of the Declaration of Human Rights can be inferred the fact that members
of the United Nations Organizations, such as Norway and Denmark, prohibit foreigners from engaging in
retail trade, and in most nations of the world laws against foreigners engaged in domestic trade are
adopted.

The Treaty of Amity between the Republic of the Philippines and the Republic of China of April 18, 1947
is also claimed to be violated by the law in question. All that the treaty guarantees is equality of
treatment to the Chinese nationals "upon the same terms as the nationals of any other country." But the
nationals of China are not discriminating against because nationals of all other countries, except those of
the United States, who are granted special rights by the Constitution, are all prohibited from engaging in
the retail trade. But even supposing that the law infringes upon the said treaty, the treaty is always
subject to qualification or amendment by a subsequent law (U. S. vs. Thompson, 258, Fed. 257, 260), and
the same may never curtail or restrict the scope of the police power of the State (plaston vs.
Pennsylvania, 58 L. ed. 539.)

X. Conclusion

Resuming what we have set forth above we hold that the disputed law was enacted to remedy a real
actual threat and danger to national economy posed by alien dominance and control of the retail
business and free citizens and country from dominance and control; that the enactment clearly falls
within the scope of the police power of the State, thru which and by which it protects its own personality
and insures its security and future; that the law does not violate the equal protection clause of the
Constitution because sufficient grounds exist for the distinction between alien and citizen in the exercise
of the occupation regulated, nor the due process of law clause, because the law is prospective in
operation and recognizes the privilege of aliens already engaged in the occupation and reasonably
protects their privilege; that the wisdom and efficacy of the law to carry out its objectives appear to us to
be plainly evident as a matter of fact it seems not only appropriate but actually necessary and that
in any case such matter falls within the prerogative of the Legislature, with whose power and discretion
the Judicial department of the Government may not interfere; that the provisions of the law are clearly
embraced in the title, and this suffers from no duplicity and has not misled the legislators or the segment
of the population affected; and that it cannot be said to be void for supposed conflict with treaty
obligations because no treaty has actually been entered into on the subject and the police power may
not be curtailed or surrendered by any treaty or any other conventional agreement.

Some members of the Court are of the opinion that the radical effects of the law could have been made
less harsh in its impact on the aliens. Thus it is stated that the more time should have been given in the
law for the liquidation of existing businesses when the time comes for them to close. Our legal duty,
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-21897 October 22, 1963
RAMON A. GONZALES, petitioner,
vs.
RUFINO G. HECHANOVA, as Executive Secretary, MACARIO PERALTA, JR., as Secretary of Defense,
PEDRO GIMENEZ, as Auditor General, CORNELIO BALMACEDA, as Secretary of Commerce and Industry,
and SALVADOR MARINO, Secretary of Justice, respondents.
Ramon A. Gonzales in his own behalf as petitioner.
Office of the Solicitor General and Estanislao Fernandez for respondents.
CONCEPCION, J.:
This is an original action for prohibition with preliminary injunction.
It is not disputed that on September 22, 1963, respondent Executive Secretary authorized the
importation of 67,000 tons of foreign rice to be purchased from private sources, and created a rice
procurement committee composed of the other respondents herein1 for the implementation of said
proposed importation. Thereupon, or September 25, 1963, herein petitioner, Ramon A. Gonzales a
rice planter, and president of the Iloilo Palay and Corn Planters Association, whose members are,
likewise, engaged in the production of rice and corn filed the petition herein, averring that, in making
or attempting to make said importation of foreign rice, the aforementioned respondents "are acting
without jurisdiction or in excess of jurisdiction", because Republic Act No. 3452 which allegedly repeals
or amends Republic Act No. 220 explicitly prohibits the importation of rice and corn "the Rice and
Corn Administration or any other government agency;" that petitioner has no other plain, speedy and
adequate remedy in the ordinary course of law; and that a preliminary injunction is necessary for the
preservation of the rights of the parties during the pendency this case and to prevent the judgment
therein from coming ineffectual. Petitioner prayed, therefore, that said petition be given due course;
that a writ of preliminary injunction be forthwith issued restraining respondent their agents or
representatives from implementing the decision of the Executive Secretary to import the
aforementioned foreign rice; and that, after due hearing, judgment be rendered making said injunction
permanent.
Forthwith, respondents were required to file their answer to the petition which they did, and petitioner's
pray for a writ of preliminary injunction was set for hearing at which both parties appeared and argued
orally. Moreover, a memorandum was filed, shortly thereafter, by the respondents. Considering, later
on, that the resolution said incident may require some pronouncements that would be more appropriate
in a decision on the merits of the case, the same was set for hearing on the merits thereafter. The
parties, however, waived the right to argue orally, although counsel for respondents filed their
memoranda.
Respondents maintain that the status of petitioner as a rice planter does not give him sufficient interest
to file the petition herein and secure the relief therein prayed for. We find no merit in this pretense.
Apart from prohibiting the importation of rice and corn "by the Rice and Corn Administration or any
other government agency". Republic Act No. 3452 declares, in Section 1 thereof, that "the policy of the
Government" is to "engage in the purchase of these basic foods directly from those tenants, farmers,
growers, producers and landowners in the Philippines who wish to dispose of their products at a price
that will afford them a fair and just return for their labor and capital investment. ... ." Pursuant to this
provision, petitioner, as a planter with a rice land of substantial proportion,2 is entitled to a chance to sell
to the Government the rice it now seeks to buy abroad. Moreover, since the purchase of said commodity
will have to be effected with public funds mainly raised by taxation, and as a rice producer and
landowner petitioner must necessarily be a taxpayer, it follows that he has sufficient personality and
interest to seek judicial assistance with a view to restraining what he believes to be an attempt to
unlawfully disburse said funds.
II. Exhaustion of administrative remedies.
Respondents assail petitioner's right to the reliefs prayed for because he "has not exhausted all
administrative remedies available to him before coming to court". We have already held, however, that
the principle requiring the previous exhaustion of administrative remedies is not applicable where the
question in dispute is purely a legal one",3 or where the controverted act is "patently illegal" or was
performed without jurisdiction or in excess of jurisdiction,4 or where the respondent is a department
secretary, whose acts as an alter-ego of the President bear the implied or assumed approval of the
latter,5 unless actually disapproved by him,6 or where there are circumstances indicating the urgency of
judicial intervention.7 The case at bar fails under each one of the foregoing exceptions to the general
rule. Respondents' contention is, therefore, untenable.
III. Merits of petitioner's cause of action.
Respondents question the sufficiency of petitioner's cause of action upon the theory that the proposed
importation in question is not governed by Republic Acts Nos. 2207 and 3452, but was authorized by the
President as Commander-in-Chief "for military stock pile purposes" in the exercise of his alleged
authority under Section 2 of Commonwealth Act No. 1;8 that in cases of necessity, the President "or his
subordinates may take such preventive measure for the restoration of good order and maintenance of
peace"; and that, as Commander-in-Chief of our armed forces, "the President ... is duty-bound to
prepare for the challenge of threats of war or emergency withoutwaiting for any special authority".
Regardless of whether Republic Act No. 3452 repeals Republic Act No. 2207, as contended by petitioner
herein - on which our view need not be expressed we are unanimously of the opinion - assuming that
said Republic Act No. 2207 is still in force that the two Acts are applicable to the proposed
importation in question because the language of said laws is such as to include within the purview
thereof all importations of rice and corn into the Philippines". Pursuant to Republic Act No. 2207, "it shall
be unlawful for any person, association, corporation orgovernment agency to import rice and corn into
any point in the Philippines", although, by way of exception, it adds, that "the President of the
Philippines may authorize the importation of these commodities through any government agency that he
may designate", is the conditions prescribed in Section 2 of said Act are present. Similarly, Republic Act
No. 3452 explicitly enjoins "the Rice and Corn Administration or any government agency" from importing
rice and corn.

I. Sufficiency of petitioner's interest. Respondents allege, however, that said provisions of Republic Act Nos. 2207 and 3452, prohibiting the
importation of rice and corn by any "government agency", do not apply to importations "made by the
Government itself", because the latter is not a "government agency". This theory is devoid of merit. The
Department of National Defense and the Armed Forces of the Philippines, as well as respondents herein,
and each and every officer and employee of our Government, our government agencies and/or agents.
The applicability of said laws even to importations by the Government as such, becomes more apparent
when we consider that:
1. The importation permitted in Republic Act No. 2207 is to be authorized by the "President of the
Philippines" and, hence, by or on behalf of the Government of the Philippines;
2. Immediately after enjoining the Rice and Corn administration and any other government agency from
importing rice and corn, Section 10 of Republic Act No. 3452 adds "that the importation of rice and corn
is left to private parties upon payment of the corresponding taxes", thus indicating that only "private
parties" may import rice under its provisions; and
3. Aside from prescribing a fine not exceeding P10,000.00 and imprisonment of not more than five (5)
years for those who shall violate any provision of Republic Act No. 3452 or any rule and regulation
promulgated pursuant thereto, Section 15 of said Act provides that "if the offender is a public
official and/or employees", he shall be subject to the additional penalty specified therein. A public
official is an officer of the Government itself, as distinguished from officers or employees of
instrumentalities of the Government. Hence, the duly authorized acts of the former are those of the
Government, unlike those of a government instrumentality which may have a personality of its own,
distinct and separate from that of the Government, as such. The provisions of Republic Act No. 2207 are,
in this respect, even more explicit. Section 3 thereof provides a similar additional penalty for any "officer
or employee of the Government" who "violates, abets or tolerates the violation of any provision" of said
Act. Hence, the intent to apply the same to transactions made by the very government is patent.
Indeed, the restrictions imposed in said Republic Acts are merely additional to those prescribed in
Commonwealth Act No. 138, entitled "An Act to give native products and domestic entities the
preference in the purchase of articles for the Government." Pursuant to Section 1 thereof:
The Purchase and Equipment Division of the Government of the Philippines and other officers
and employees of the municipal and provincial governments and the Government of the
Philippines and of chartered cities, boards, commissions, bureaus, departments, offices,
agencies, branches, and bodies of any description, including government-owned companies,
authorized to requisition, purchase, or contract or make disbursements for articles, materials,
and supplies for public use, public buildings, or public works shall give preference to
materials ... produced ... in the Philippines or in the United States, and to domestic entities,
subject to the conditions hereinbelow specified. (Emphasis supplied.)
Under this provision, in all purchases by the Government, including those made by and/or for the armed
forces,preference shall be given to materials produced in the Philippines. The importation involved in the
case at bar violates this general policy of our Government, aside from the provisions of Republic Acts
Nos. 2207 and 3452.
The attempt to justify the proposed importation by invoking reasons of national security predicated
upon the "worsening situation in Laos and Vietnam", and "the recent tension created by the Malaysia
problem" - and the alleged powers of the President as Commander-in-Chief of all armed forces in the
Philippines, under Section 2 of the National Defense Act (Commonwealth Act No. 1), overlooks the fact
that the protection of local planters of rice and corn in a manner that would foster and accelerate self-
sufficiency in the local production of said commodities constitutes a factor that is vital to our ability to
meet possible national emergency. Even if the intent in importing goods in anticipation of such
emergency were to bolster up that ability, the latter would, instead, be impaired if the importation were
so made as to discourage our farmers from engaging in the production of rice.
Besides, the stockpiling of rice and corn for purpose of national security and/or national emergency is
within the purview of Republic Act No. 3452. Section 3 thereof expressly authorizes the Rice and Corn
Administration "to accumulate stocks as a national reserve in such quantities as it may deem proper and
necessary to meet any contingencies". Moreover, it ordains that "the buffer stocks held as a national
reserve ... be deposited by the administration throughout the country under the proper dispersal plans ...
and may be released only upon the occurrence of calamities or emergencies ...". (Emphasis applied.)
Again, the provisions of Section 2 of Commonwealth Act No. 1, upon which respondents rely so much,
are not self-executory. They merely outline the general objectives of said legislation. The means for the
attainment of those objectives are subject to congressional legislation. Thus, the conditions under which
the services of citizens, as indicated in said Section 2, may be availed of, are provided for in Sections 3, 4
and 51 to 88 of said Commonwealth Act No. 1. Similarly, Section 5 thereof specifies the manner in which
resources necessary for our national defense may be secured by the Government of the Philippines, but
only "during a national mobilization",9which does not exist. Inferentially, therefore, in the absence of a
national mobilization, said resources shall be produced in such manner as Congress may by other laws
provide from time to time. Insofar as rice and corn are concerned, Republic Acts Nos. 2207 and 3452,
and Commonwealth Act No. 138 are such laws.
Respondents cite Corwin in support of their pretense, but in vain. An examination of the work
cited10 shows that Corwin referred to the powers of the President during "war time"11 or when he has
placed the country or a part thereof under "martial law".12 Since neither condition obtains in the case at
bar, said work merely proves that respondents' theory, if accepted, would, in effect, place the Philippines
under martial law, without a declaration of the Executive to that effect. What is worse, it would keep
us perpetually under martial law.
It has been suggested that even if the proposed importation violated Republic Acts Nos. 2207 and 3452,
it should, nevertheless, be permitted because "it redounds to the benefit of the people". Salus populi est
suprema lex, it is said.
If there were a local shortage of rice, the argument might have some value. But the respondents, as
officials of this Government, have expressly affirmed again and again that there is no rice shortage. And
the importation is avowedly for stockpile of the Army not the civilian population.
But let us follow the respondents' trend of thought. It has a more serious implication that appears on the
surface. It implies that if an executive officer believes that compliance with a certain statute will not
benefit the people, he is at liberty to disregard it. That idea must be rejected - we still live under a rule of
law.
And then, "the people" are either producers or consumers. Now as respondents explicitly admit
Republic Acts Nos. 2207 and 3452 were approved by the Legislature for the benefit of producers and
consumers, i.e., the people, it must follow that the welfare of the people lies precisely in
the compliance with said Acts.
It is not for respondent executive officers now to set their own opinions against that of the Legislature,
and adopt means or ways to set those Acts at naught. Anyway, those laws permit importation but
under certain conditions, which have not been, and should be complied with.
IV. The contracts with Vietnam and Burma
It is lastly contended that the Government of the Philippines has already entered into two (2) contracts
for the Purchase of rice, one with the Republic of Vietnam, and another with the Government of Burma;
that these contracts constitute valid executive agreements under international law; that such
agreements became binding effective upon the signing thereof by representatives the parties thereto;
that in case of conflict between Republic Acts Nos. 2207 and 3452 on the one hand, and aforementioned
contracts, on the other, the latter should prevail, because, if a treaty and a statute are inconsistent with
each other, the conflict must be resolved under the American jurisprudence in favor of the one
which is latest in point of time; that petitioner herein assails the validity of acts of the Executive relative
to foreign relations in the conduct of which the Supreme Court cannot interfere; and the
aforementioned contracts have already been consummated, the Government of the Philippines having
already paid the price of the rice involved therein through irrevocable letters of credit in favor of the sell
of the said commodity. We find no merit in this pretense.
question, because, aside from the fact that said obligations may be complied with without importing the
commodity into the Philippines, the proposed importation may still be legalized by complying with the
provisions of the aforementioned laws.
V. The writ of preliminary injunction.
The members of the Court have divergent opinions on the question whether or not respondents herein
should be enjoined from implementing the aforementioned proposed importation. However, the
majority favors the negative view, for which reason the injunction prayed for cannot be granted.

The Court is not satisfied that the status of said tracts as alleged executive agreements has been WHEREFORE, judgment is hereby rendered declaring that respondent Executive Secretary had and has
sufficiently established. The parties to said contracts do not pear to have regarded the same as executive no power to authorize the importation in question; that he exceeded his jurisdiction in granting said
agreements. But, even assuming that said contracts may properly considered as executive agreements, authority; said importation is not sanctioned by law and is contrary to its provisions; and that, for lack of
the same are unlawful, as well as null and void, from a constitutional viewpoint, said agreements being the requisite majority, the injunction prayed for must be and is, accordingly denied. It is so ordered.
inconsistent with the provisions of Republic Acts Nos. 2207 and 3452. Although the President may, under
the American constitutional system enter into executive agreements without previous legislative
authority, he may not, by executive agreement, enter into a transaction which is prohibited by statutes
enacted prior thereto. Under the Constitution, the main function of the Executive is to enforce laws
enacted by Congress. The former may not interfere in the performance of the legislative powers of the
latter, except in the exercise of his veto power. He may not defeat legislative enactments that have
acquired the status of law, by indirectly repealing the same through an executive agreement providing
for the performance of the very act prohibited by said laws.

The American theory to the effect that, in the event of conflict between a treaty and a statute, the one
which is latest in point of time shall prevail, is not applicable to the case at bar, for respondents not only
admit, but, alsoinsist that the contracts adverted to are not treaties. Said theory may be justified upon
the ground that treaties to which the United States is signatory require the advice and consent of its
Senate, and, hence, of a branch of the legislative department. No such justification can be given as
regards executive agreements not authorized by previous legislation, without completely upsetting the
principle of separation of powers and the system of checks and balances which are fundamental in our
constitutional set up and that of the United States.

As regards the question whether an international agreement may be invalidated by our courts, suffice it
to say that the Constitution of the Philippines has clearly settled it in the affirmative, by providing, in
Section 2 of Article VIII thereof, that the Supreme Court may not be deprived "of its jurisdiction to
review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of error as the law or the rules of
court may provide, final judgments and decrees of inferior courts in (1) All cases in which
the constitutionality or validity of any treaty, law, ordinance, or executive order or regulation is in
question". In other words, our Constitution authorizes the nullification of a treaty, not only when it
conflicts with the fundamental law, but, also, when it runs counter to an act of Congress.

The alleged consummation of the aforementioned contracts with Vietnam and Burma does not render
this case academic, Republic Act No. 2207 enjoins our Government not from entering into contracts for
the purchase of rice, but from importing rice, except under the conditions Prescribed in said Act. Upon
the other hand, Republic Act No. 3452 has two (2) main features, namely: (a) it requires the Government
to purchase rice and corn directly from our local planters, growers or landowners; and (b) it
prohibits importations of rice by the Government, and leaves such importations to private parties. The
pivotal issue in this case is whether the proposed importation which has not been consummated as
yet is legally feasible.

Lastly, a judicial declaration of illegality of the proposed importation would not compel our Government
to default in the performance of such obligations as it may have contracted with the sellers of the rice in
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-49112 February 2, 1979
LEOVILLO C. AGUSTIN, petitioner,
vs.
HON. ROMEO F. EDU, in his capacity as Land Transportation Commissioner; HON. JUAN PONCE ENRILE,
in his capacity as Minister of National Defense; HON. ALFREDO L. JUINIO, in his capacity as Minister Of
Public Works, Transportation and Communications; and HON: BALTAZAR AQUINO, in his capacity as
Minister of Public Highways, respondents.
Leovillo C. Agustin Law Office for petitioner.
Solicitor General Estelito P. Mendoza, Assistant Solicitor General Ruben E. Agpalo and Solicitor Amado D.
Aquino for respondents.
FERNANDO, J.:
The validity of a letter of Instruction 1 providing for an early seaming device for motor vehicles is assailed
in this prohibition proceeding as being violative of the constitutional guarantee of due process and,
insofar as the rules and regulations for its implementation are concerned, for transgressing the
fundamental principle of non- delegation of legislative power. The Letter of Instruction is stigmatized by
petitioner who is possessed of the requisite standing, as being arbitrary and oppressive. A temporary
restraining order as issued and respondents Romeo F. Edu, Land Transportation Commissioner Juan
Ponce Enrile, Minister of National Defense; Alfredo L. Juinio, Minister of Public Works, Transportation
and Communications; and Baltazar Aquino, Minister of Public Highways; were to answer. That they did in
a pleading submitted by Solicitor General Estelito P. Mendoza. 2 Impressed with a highly persuasive
quality, it makes devoid clear that the imputation of a constitutional infirmity is devoid of justification
The Letter of Instruction on is a valid police power measure. Nor could the implementing rules and
regulations issued by respondent Edu be considered as amounting to an exercise of legislative power.
Accordingly, the petition must be dismissed.
The facts are undisputed. The assailed Letter of Instruction No. 229 of President Marcos, issued on
December 2, 1974, reads in full: "[Whereas], statistics show that one of the major causes of fatal or
serious accidents in land transportation is the presence of disabled, stalled or parked motor vehicles
along streets or highways without any appropriate early warning device to signal approaching motorists
of their presence; [Whereas], the hazards posed by such obstructions to traffic have been recognized by
international bodies concerned with traffic safety, the 1968 Vienna Convention on Road Signs and
Signals and the United Nations Organization (U.N.); [Whereas], the said Vienna Convention which was
ratified by the Philippine Government under P.D. No. 207, recommended the enactment of local
legislation for the installation of road safety signs and devices; [Now, therefore, I, Ferdinand E. Marcos],
President of the Philippines, in the interest of safety on all streets and highways, including expressways
or limited access roads, do hereby direct: 1. That all owners, users or drivers of motor vehicles shall have
at all times in their motor vehicles at least one (1) pair of early warning device consisting of triangular,
collapsible reflectorized plates in red and yellow colors at least 15 cms. at the base and 40 cms. at the
sides. 2. Whenever any motor vehicle is stalled or disabled or is parked for thirty (30) minutes or more
on any street or highway, including expressways or limited access roads, the owner, user or driver
thereof shall cause the warning device mentioned herein to be installed at least four meters away to the
front and rear of the motor vehicle staged, disabled or parked. 3. The Land Transportation Commissioner
shall cause Reflectorized Triangular Early Warning Devices, as herein described, to be prepared and
issued to registered owners of motor vehicles, except motorcycles and trailers, charging for each piece
not more than 15 % of the acquisition cost. He shall also promulgate such rules and regulations as are
appropriate to effectively implement this order. 4. All hereby concerned shall closely coordinate and take
such measures as are necessary or appropriate to carry into effect then instruction. 3 Thereafter, on
November 15, 1976, it was amended by Letter of Instruction No. 479 in this wise. "Paragraph 3 of Letter
of Instruction No. 229 is hereby amended to read as follows: 3. The Land transportation Commissioner
shall require every motor vehicle owner to procure from any and present at the registration of his
vehicle, one pair of a reflectorized early warning device, as d bed of any brand or make chosen by mid
motor vehicle . The Land Transportation Commissioner shall also promulgate such rule and regulations
as are appropriate to effectively implement this order.'" 4There was issued accordingly, by respondent
Edu, the implementing rules and regulations on December 10, 1976. 5 They were not enforced as
President Marcos on January 25, 1977, ordered a six-month period of suspension insofar as the
installation of early warning device as a pre-registration requirement for motor vehicle was
concerned. 6 Then on June 30, 1978, another Letter of Instruction 7 the lifting of such suspension and
directed the immediate implementation of Letter of Instruction No. 229 as amended. 8 It was not until
August 29, 1978 that respondent Edu issued Memorandum Circular No. 32, worded thus: "In pursuance
of Letter of Instruction No. 716, dated June 30, 1978, the implementation of Letter of Instruction No.
229, as amended by Letter of Instructions No. 479, requiring the use of Early Warning Devices (EWD) on
motor vehicle, the following rules and regulations are hereby issued: 1. LTC Administrative Order No. 1,
dated December 10, 1976; shall now be implemented provided that the device may come from whatever
source and that it shall have substantially complied with the EWD specifications contained in Section 2 of
said administrative order; 2. In order to insure that every motor vehicle , except motorcycles, is equipped
with the device, a pair of serially numbered stickers, to be issued free of charge by this Commission, shall
be attached to each EWD. The EWD. serial number shall be indicated on the registration certificate and
official receipt of payment of current registration fees of the motor vehicle concerned. All Orders,
Circulars, and Memoranda in conflict herewith are hereby superseded, This Order shall take effect
immediately. 9 It was for immediate implementation by respondent Alfredo L. Juinio, as Minister of
Public Works, transportation, and Communications. 10
Petitioner, after setting forth that he "is the owner of a Volkswagen Beetle Car, Model 13035, already
properly equipped when it came out from the assembly lines with blinking lights fore and aft, which
could very well serve as an early warning device in case of the emergencies mentioned in Letter of
Instructions No. 229, as amended, as well as the implementing rules and regulations in Administrative
Order No. 1 issued by the land transportation Commission," 11 alleged that said Letter of Instruction No.
229, as amended, "clearly violates the provisions and delegation of police power, [sic] * * *: " For him
they are "oppressive, unreasonable, arbitrary, confiscatory, nay unconstitutional and contrary to the
precepts of our compassionate New Society." 12 He contended that they are "infected with arbitrariness
because it is harsh, cruel and unconscionable to the motoring public;" 13 are "one-sided, onerous and
patently illegal and immoral because [they] will make manufacturers and dealers instant millionaires at
the expense of car owners who are compelled to buy a set of the so-called early warning device at the
rate of P 56.00 to P72.00 per set." 14 are unlawful and unconstitutional and contrary to the precepts of a
compassionate New Society [as being] compulsory and confiscatory on the part of the motorists who
could very well provide a practical alternative road safety device, or a better substitute to the specified
set of EWD's." 15 He therefore prayed for a judgment both the assailed Letters of Instructions and
Memorandum Circular void and unconstitutional and for a restraining order in the meanwhile.
A resolution to this effect was handed down by this Court on October 19, 1978: "L-49112 (Leovillo C.
Agustin v. Hon. Romeo F. Edu, etc., et al.) Considering the allegations contained, the issues raised and
the arguments adduced in the petition for prohibition with writ of p prohibitory and/or mandatory
injunction, the Court Resolved to (require) the respondents to file an answer thereto within ton (10) days
from notice and not to move to dismiss the petition. The Court further Resolved to [issue] a [temporary
restraining order] effective as of this date and continuing until otherwise ordered by this Court. 16
Two motions for extension were filed by the Office of the Solicitor General and granted. Then on
November 15, 1978, he Answer for respondents was submitted. After admitting the factual allegations
and stating that they lacked knowledge or information sufficient to form a belief as to petitioner owning
a Volkswagen Beetle car," they "specifically deny the allegations and stating they lacked knowledge or
information sufficient to form a belief as to petitioner owning a Volkswagen Beetle Car, 17 they
specifically deny the allegations in paragraphs X and XI (including its subparagraphs 1, 2, 3, 4) of Petition
to the effect that Letter of Instruction No. 229 as amended by Letters of Instructions Nos. 479 and 716 as
well as Land transportation Commission Administrative Order No. 1 and its Memorandum Circular No. 32
violates the constitutional provisions on due process of law, equal protection of law and undue
delegation of police power, and that the same are likewise oppressive, arbitrary, confiscatory, one-sided,
onerous, immoral unreasonable and illegal the truth being that said allegations are without legal and
factual basis and for the reasons alleged in the Special and Affirmative Defenses of this Answer." 18 Unlike
petitioner who contented himself with a rhetorical recital of his litany of grievances and merely invoked
the sacramental phrases of constitutional litigation, the Answer, in demonstrating that the assailed
Letter of Instruction was a valid exercise of the police power and implementing rules and regulations of
respondent Edu not susceptible to the charge that there was unlawful delegation of legislative power,
there was in the portion captioned Special and Affirmative Defenses, a citation of what respondents
believed to be the authoritative decisions of this Tribunal calling for application. They are Calalang v.
Williams, 19 Morfe v. Mutuc, 20 and Edu v. Ericta. 21 Reference was likewise made to the 1968 Vienna
Conventions of the United Nations on road traffic, road signs, and signals, of which the Philippines was a
signatory and which was duly ratified. 22 Solicitor General Mendoza took pains to refute in detail, in
language calm and dispassionate, the vigorous, at times intemperate, accusation of petitioner that the
assailed Letter of Instruction and the implementing rules and regulations cannot survive the test of
rigorous scrutiny. To repeat, its highly-persuasive quality cannot be denied.
This Court thus considered the petition submitted for decision, the issues being clearly joined. As noted
at the outset, it is far from meritorious and must be dismissed.
1. The Letter of Instruction in question was issued in the exercise of the police power. That is conceded
by petitioner and is the main reliance of respondents. It is the submission of the former, however, that
while embraced in such a category, it has offended against the due process and equal protection
safeguards of the Constitution, although the latter point was mentioned only in passing. The broad and
expansive scope of the police power which was originally Identified by Chief Justice Taney of the
American Supreme Court in an 1847 decision as "nothing more or less than the powers of government
inherent in every sovereignty" 23 was stressed in the aforementioned case of Edu v. Ericta thus: "Justice
Laurel, in the first leading decision after the Constitution came into force, Calalang v. Williams, Identified
police power with state authority to enact legislation that may interfere with personal liberty or property
in order to promote the general welfare. Persons and property could thus 'be subjected to all kinds of
restraints and burdens in order to we the general comfort, health and prosperity of the state.' Shortly
after independence in 1948, Primicias v. Fugosoreiterated the doctrine, such a competence being
referred to as 'the power to prescribe regulations to promote the health, morals, peace, education, good
order or safety, and general welfare of the people. The concept was set forth in negative terms by Justice
Malcolm in a pre-Commonwealth decision as 'that inherent and plenary power in the State which
enables it to prohibit all things hurtful to the comfort, safety and welfare of society. In that sense it could
be hardly distinguishable as noted by this Court in Morfe v. Mutuc with the totality of legislative power.
It is in the above sense the greatest and most powerful at. tribute of government. It is, to quote Justice
Malcolm anew, 'the most essential, insistent, and at least table powers, I extending as Justice Holmes
aptly pointed out 'to all the great public needs.' Its scope, ever-expanding to meet the exigencies of the
times, even to anticipate the future where it could be done, provides enough room for an efficient and
flexible response to conditions and circumstances thus assuring the greatest benefits. In the language of
Justice Cardozo: 'Needs that were narrow or parochial in the past may be interwoven in the present with
the well-being of the nation. What is critical or urgent changes with the time.' The police power is thus a
dynamic agency, suitably vague and far from precisely defined, rooted in the conception that men in
organizing the state and imposing upon its government limitations to safeguard constitutional rights did
not intend thereby to enable an individual citizen or a group of citizens to obstruct unreasonably the
enactment of such salutary measures calculated to communal peace, safety, good order, and welfare." 24
2. It was thus a heavy burden to be shouldered by petitioner, compounded by the fact that the particular
police power measure challenged was clearly intended to promote public safety. It would be a rare
occurrence indeed for this Court to invalidate a legislative or executive act of that character. None has
been called to our attention, an indication of its being non-existent. The latest decision in point, Edu v.
Ericta, sustained the validity of the Reflector Law, 25 an enactment conceived with the same end in
view. Calalang v. Williams found nothing objectionable in a statute, the purpose of which was: "To
promote safe transit upon, and. avoid obstruction on roads and streets designated as national roads * *
*. 26 As a matter of fact, the first law sought to be nullified after the effectivity of the 1935 Constitution,
the National Defense Act, 27 with petitioner failing in his quest, was likewise prompted by the imperative
demands of public safety.
3. The futility of petitioner's effort to nullify both the Letter of Instruction and the implementing rules
and regulations becomes even more apparent considering his failure to lay the necessary factual
foundation to rebut the presumption of validity. So it was held in Ermita-Malate Hotel and Motel
Operators Association, Inc. v. City Mayor of Manila. 28 The rationale was clearly set forth in an excerpt
from a decision of Justice Branders of the American Supreme Court, quoted in the opinion: "The statute
here questioned deals with a subject clearly within the scope of the police power. We are asked to
declare it void on the ground that the specific method of regulation prescribed is unreasonable and
hence deprives the plaintiff of due process of law. As underlying questions of fact may condition the
constitutionality of legislation of this character, the presumption of constitutionality must prevail in the
absence of some factual foundation of record in overthrowing the statute. 29
4. Nor did the Solicitor General as he very well could, rely solely on such rebutted presumption of
validity. As was pointed out in his Answer "The President certainly had in his possession the necessary
statistical information and data at the time he issued said letter of instructions, and such factual
foundation cannot be defeated by petitioner's naked assertion that early warning devices 'are not too
vital to the prevention of nighttime vehicular accidents' because allegedly only 390 or 1.5 per cent of the
supposed 26,000 motor vehicle accidents that in 1976 involved rear-end collisions (p. 12 of petition).
Petitioner's statistics is not backed up by demonstrable data on record. As aptly stated by this Honorable
Court: Further: "It admits of no doubt therefore that there being a presumption of validity, the necessity
for evidence to rebut it is unavoidable, unless the statute or ordinance is void on its face, which is not the
case here"' * * *. But even as g the verity of petitioner's statistics, is that not reason enough to require
the installation of early warning devices to prevent another 390 rear-end collisions that could mean the
death of 390 or more Filipinos and the deaths that could likewise result from head-on or frontal
collisions with stalled vehicles?" 30 It is quite manifest then that the issuance of such Letter of Instruction
is encased in the armor of prior, careful study by the Executive Department. To set it aside for alleged
repugnancy to the due process clause is to give sanction to conjectural claims that exceeded even the
broadest permissible limits of a pleader's well known penchant for exaggeration.
5. The rather wild and fantastic nature of the charge of oppressiveness of this Letter of Instruction was
exposed in the Answer of the Solicitor General thus: "Such early warning device requirement is not
an expensive redundancy, nor oppressive, for car owners whose cars are already equipped with 1)
blinking lights in the fore and aft of said motor vehicles,' 2) "battery-powered blinking lights inside motor
vehicles," 3) "built-in reflectorized tapes on front and rear bumpers of motor vehicles," or 4) "well-
lighted two (2) petroleum lamps (the Kinke) * * * because: Being universal among the signatory
countries to the said 1968 Vienna Conventions, and visible even under adverse conditions at a distance
of at least 400 meters, any motorist from this country or from any part of the world, who sees a
reflectorized rectangular early seaming device installed on the roads, highways or expressways, will
conclude, without thinking, that somewhere along the travelled portion of that road, highway, or
expressway, there is a motor vehicle which is stationary, stalled or disabled which obstructs or
endangers passing traffic. On the other hand, a motorist who sees any of the aforementioned other built
in warning devices or the petroleum lamps will not immediately get adequate advance warning because
he will still think what that blinking light is all about. Is it an emergency vehicle? Is it a law enforcement
car? Is it an ambulance? Such confusion or uncertainty in the mind of the motorist will thus increase,
rather than decrease, the danger of collision. 31
6. Nor did the other extravagant assertions of constitutional deficiency go unrefuted in the Answer of the
Solicitor General "There is nothing in the questioned Letter of Instruction No. 229, as amended, or in
Administrative Order No. 1, which requires or compels motor vehicle owners to purchase the early
warning device prescribed thereby. All that is required is for motor vehicle owners concerned like
petitioner, to equip their motor vehicles with a pair of this early warning device in question, procuring or
obtaining the same from whatever source. In fact, with a little of industry and practical ingenuity, motor
vehicle owners can even personally make or produce this early warning device so long as the same
substantially conforms with the specifications laid down in said letter of instruction and administrative
order. Accordingly the early warning device requirement can neither be oppressive, onerous, immoral,
nor confiscatory, much less does it make manufacturers and dealers of said devices 'instant millionaires
at the expense of car owners' as petitioner so sweepingly concludes * * *. Petitioner's fear that with the
early warning device requirement 'a more subtle racket may be committed by those called upon to
enforce it * * * is an unfounded speculation. Besides, that unscrupulous officials may try to enforce said
requirement in an unreasonable manner or to an unreasonable degree, does not render the same illegal
or immoral where, as in the instant case, the challenged Letter of Instruction No. 229 and implementing
order disclose none of the constitutional defects alleged against it. 32
7 It does appear clearly that petitioner's objection to this Letter of Instruction is not premised on lack of
power, the justification for a finding of unconstitutionality, but on the pessimistic, not to say negative,
view he entertains as to its wisdom. That approach, it put it at its mildest, is distinguished, if that is the
appropriate word, by its unorthodoxy. It bears repeating "that this Court, in the language of Justice
Laurel, 'does not pass upon questions of wisdom justice or expediency of legislation.' As expressed by
Justice Tuason: 'It is not the province of the courts to supervise legislation and keep it within the bounds
of propriety and common sense. That is primarily and exclusively a legislative concern.' There can be no
possible objection then to the observation of Justice Montemayor. 'As long as laws do not violate any
Constitutional provision, the Courts merely interpret and apply them regardless of whether or not they
are wise or salutary. For they, according to Justice Labrador, 'are not supposed to override legitimate
policy and * * * never inquire into the wisdom of the law.' It is thus settled, to paraphrase Chief Justice
Concepcion in Gonzales v. Commission on Elections, that only congressional power or competence, not
the wisdom of the action taken, may be the basis for declaring a statute invalid. This is as it ought to be.
The principle of separation of powers has in the main wisely allocated the respective authority of each
department and confined its jurisdiction to such a sphere. There would then be intrusion not allowable
under the Constitution if on a matter left to the discretion of a coordinate branch, the judiciary would
substitute its own. If there be adherence to the rule of law, as there ought to be, the last offender should
be courts of justice, to which rightly litigants submit their controversy precisely to maintain unimpaired
the supremacy of legal norms and prescriptions. The attack on the validity of the challenged provision
likewise insofar as there may be objections, even if valid and cogent on is wisdom cannot be sustained. 33
8. The alleged infringement of the fundamental principle of non-delegation of legislative power is equally
without any support well-settled legal doctrines. Had petitioner taken the trouble to acquaint himself
with authoritative pronouncements from this Tribunal, he would not have the temerity to make such an
assertion. An exempt from the aforecited decision of Edu v. Ericta sheds light on the matter: "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
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 supplemental rules and regulations. The standard may be either express or
implied. If the former, the non-delegation objection is easily met. The standard though does not have to
be spelled out specifically. It could be implied from the policy and purpose of the act considered as a
whole. In the Reflector Law clearly, the legislative objective is public safety. What is sought to be
attained as in Calalang v. Williams is "safe transit upon the roads.' This is to adhere to the recognition
given expression by Justice Laurel in a decision announced not too long after the Constitution came into
force and effect that the principle of non-delegation "has been made to adapt itself to the complexities
of modern governments, giving rise to the adoption, within certain limits, of the principle of
"subordinate legislation" not only in the United States and England but in practically all modern
governments.' He continued: 'Accordingly, with the growing complexity of modern life, the multiplication
of the subjects of governmental regulation, and the increased difficulty of administering the laws, there
is a constantly growing tendency toward the delegation of greater powers by the legislature and toward
the approval of the practice by the courts.' Consistency with the conceptual approach requires the
reminder that what is delegated is authority non-legislative in character, the completeness of the statute
when it leaves the hands of Congress being assumed." 34
9. The conclusion reached by this Court that this petition must be dismissed is reinforced by this
consideration. The petition itself quoted these two whereas clauses of the assailed Letter of Instruction:
"[Whereas], the hazards posed by such obstructions to traffic have been recognized by international
bodies concerned with traffic safety, the 1968 Vienna Convention on Road Signs and Signals and the
United Nations Organization (U.N.); [Whereas], the said Vionna Convention, which was ratified by the
Philippine Government under P.D. No. 207, recommended the enactment of local legislation for the
installation of road safety signs and devices; * * * " 35 It cannot be disputed then that this Declaration of
Principle found in the Constitution possesses relevance: "The Philippines * * * adopts the generally
accepted principles of international law as part of the law of the land * * *." 36 The 1968 Vienna
Convention on Road Signs and Signals is impressed with such a character. It is not for this country to
repudiate a commitment to which it had pledged its word. The concept of Pacta sunt servanda stands in
the way of such an attitude, which is, moreover, at war with the principle of international morality.
10. That is about all that needs be said. The rather court reference to equal protection did not even elicit
any attempt on the Part of Petitioner to substantiate in a manner clear, positive, and categorical why
such a casual observation should be taken seriously. In no case is there a more appropriate occasion for
insistence on what was referred to as "the general rule" in Santiago v. Far Eastern Broadcasting
Co., 37 namely, "that the constitutionality of a law wig not be considered unless the point is specially
pleaded, insisted upon, and adequately argued." 38 "Equal protection" is not a talismanic formula at the
mere invocation of which a party to a lawsuit can rightfully expect that success will crown his efforts. The
law is anything but that.
WHEREFORE, this petition is dismissed. The restraining order is lifted. This decision is immediately
executory. No costs.
EN BANC
[G.R. No. 141284. August 15, 2000]
INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. HON. RONALDO B. ZAMORA, GEN. PANFILO M.
LACSON, GEN. EDGAR B. AGLIPAY, and GEN. ANGELO REYES, respondents.
DECISION
KAPUNAN, J.:
At bar is a special civil action for certiorari and prohibition with prayer for issuance of a temporary
restraining order seeking to nullify on constitutional grounds the order of President Joseph Ejercito
Estrada commanding the deployment of the Philippine Marines (the Marines) to join the Philippine
National Police (the PNP) in visibility patrols around the metropolis.
In view of the alarming increase in violent crimes in Metro Manila, like robberies, kidnappings and
carnappings, the President, in a verbal directive, ordered the PNP and the Marines to conduct joint
visibility patrols for the purpose of crime prevention and suppression. The Secretary of National Defense,
the Chief of Staff of the Armed Forces of the Philippines (the AFP), the Chief of the PNP and the Secretary
of the Interior and Local Government were tasked to execute and implement the said order. In
compliance with the presidential mandate, the PNP Chief, through Police Chief Superintendent Edgar B.
Aglipay, formulated Letter of Instruction 02/2000[1] (the LOI) which detailed the manner by which the
joint visibility patrols, called Task Force Tulungan, would be conducted.[2] Task Force Tulungan was
placed under the leadership of the Police Chief of Metro Manila.
Subsequently, the President confirmed his previous directive on the deployment of the Marines in
a Memorandum, dated 24 January 2000, addressed to the Chief of Staff of the AFP and the PNP
Chief.[3] In the Memorandum, the President expressed his desire to improve the peace and order
situation in Metro Manila through a more effective crime prevention program including increased police
patrols.[4] The President further stated that to heighten police visibility in the metropolis, augmentation
from the AFP is necessary.[5]Invoking his powers as Commander-in-Chief under Section 18, Article VII of
the Constitution, the President directed the AFP Chief of Staff and PNP Chief to coordinate with each
other for the proper deployment and utilization of the Marines to assist the PNP in preventing or
suppressing criminal or lawless violence.[6] Finally, the President declared that the services of the
Marines in the anti-crime campaign are merely temporary in nature and for a reasonable period only,
until such time when the situation shall have improved.[7]
The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols as follows:
xxx
2. PURPOSE:
The Joint Implementing Police Visibility Patrols between the PNP NCRPO and the Philippine Marines
partnership in the conduct of visibility patrols in Metro Manila for the suppression of crime prevention
and other serious threats to national security.
3. SITUATION:
Criminal incidents in Metro Manila have been perpetrated not only by ordinary criminals but also by
organized syndicates whose members include active and former police/military personnel whose training,
skill, discipline and firepower prove well-above the present capability of the local police alone to
handle. The deployment of a joint PNP NCRPO-Philippine Marines in the conduct of police visibility patrol
in urban areas will reduce the incidence of crimes specially those perpetrated by active or former
police/military personnel.
4. MISSION:
The PNP NCRPO will organize a provisional Task Force to conduct joint NCRPO-PM visibility patrols to
keep Metro Manila streets crime-free, through a sustained street patrolling to minimize or eradicate all
forms of high-profile crimes especially those perpetrated by organized crime syndicates whose members
include those that are well-trained, disciplined and well-armed active or former PNP/Military personnel.
5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:
a. The visibility patrols shall be conducted jointly by the NCRPO [National Capital Regional Police Office]
and the Philippine Marines to curb criminality in Metro Manila and to preserve the internal security of the
state against insurgents and other serious threat to national security, although the primary responsibility
over Internal Security Operations still rests upon the AFP.
b. The principle of integration of efforts shall be applied to eradicate all forms of high-profile crimes
perpetrated by organized crime syndicates operating in Metro Manila. This concept requires the military
and police to work cohesively and unify efforts to ensure a focused, effective and holistic approach in
addressing crime prevention. Along this line, the role of the military and police aside from neutralizing
crime syndicates is to bring a wholesome atmosphere wherein delivery of basic services to the people and
development is achieved. Hand-in-hand with this joint NCRPO-Philippine Marines visibility patrols, local
Police Units are responsible for the maintenance of peace and order in their locality.
c. To ensure the effective implementation of this project, a provisional Task Force TULUNGAN shall be
organized to provide the mechanism, structure, and procedures for the integrated planning, coordinating,
monitoring and assessing the security situation.
xxx.[8]
The selected areas of deployment under the LOI are: Monumento Circle, North Edsa (SM City),
Araneta Shopping Center, Greenhills, SM Megamall, Makati Commercial Center, LRT/MRT Stations and
the NAIA and Domestic Airport.[9]
On 17 January 2000, the Integrated Bar of the Philippines (the IBP) filed the instant petition to
annul LOI 02/2000 and to declare the deployment of the Philippine Marines, null and void and
unconstitutional, arguing that:
I
THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS VIOLATIVE OF THE CONSTITUTION,
IN THAT:
A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD JUSTIFY, EVEN ONLY REMOTELY,
THE DEPLOYMENT OF SOLDIERS FOR LAW ENFORCEMENT WORK; HENCE, SAID DEPLOYMENT IS IN
DEROGATION OF ARTICLE II, SECTION 3 OF THE CONSTITUTION;
B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY THE MILITARY IN A CIVILIAN
FUNCTION OF GOVERNMENT (LAW ENFORCEMENT) IN DEROGATION OF ARTICLE XVI, SECTION 5 (4), OF
THE CONSTITUTION;
C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY ON THE MILITARY TO PERFORM THE
CIVILIAN FUNCTIONS OF THE GOVERNMENT.
II
IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE ADMINISTRATION IS UNWITTINGLY
MAKING THE MILITARY MORE POWERFUL THAN WHAT IT SHOULD REALLY BE UNDER THE
CONSTITUTION.[10]
Asserting itself as the official organization of Filipino lawyers tasked with the bounden duty to
uphold the rule of law and the Constitution, the IBP questions the validity of the deployment and
utilization of the Marines to assist the PNP in law enforcement.
Without granting due course to the petition, the Court in a Resolution, [11] dated 25 January 2000,
required the Solicitor General to file his Comment on the petition. On 8 February 2000, the Solicitor
General submitted his Comment.
The Solicitor General vigorously defends the constitutionality of the act of the President in
deploying the Marines, contending, among others, that petitioner has no legal standing;that the
question of deployment of the Marines is not proper for judicial scrutiny since the same involves a
political question; that the organization and conduct of police visibility patrols, which feature the team-
up of one police officer and one Philippine Marine soldier, does not violate the civilian supremacy clause
in the Constitution.
The issues raised in the present petition are: (1) Whether or not petitioner has legal standing;
(2) Whether or not the Presidents factual determination of the necessity of calling the armed forces is
subject to judicial review; and, (3) Whether or not the calling of the armed forces to assist the PNP in
joint visibility patrols violates the constitutional provisions on civilian supremacy over the military and
the civilian character of the PNP.
The petition has no merit.
First, petitioner failed to sufficiently show that it is in possession of the requisites of standing to
raise the issues in the petition. Second, the President did not commit grave abuse of discretion
amounting to lack or excess of jurisdiction nor did he commit a violation of the civilian supremacy clause
of the Constitution.
The power of judicial review is set forth in Section 1, Article VIII of the Constitution, to wit:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
When questions of constitutional significance are raised, the Court can exercise its power of
judicial review only if the following requisites are complied with, namely: (1) the existence of an actual
and appropriate case; (2) a personal and substantial interest of the party raising the constitutional
question; (3) the exercise of judicial review is pleaded at the earliest opportunity; and (4) the
constitutional question is the lis mota of the case.[12]
The IBP has not sufficiently complied with the requisites of standing in this case.
Legal standing or locus standi has been defined as a personal and substantial interest in the case
such that the party has sustained or will sustain direct injury as a result of the governmental act that is
being challenged.[13] The term interest means a material interest, an interest in issue affected by the
decree, as distinguished from mere interest in the question involved, or a mere incidental
interest.[14] The gist of the question of standing is whether a party alleges such personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court depends for illumination of difficult constitutional questions.[15]
In the case at bar, the IBP primarily anchors its standing on its alleged responsibility to uphold the
rule of law and the Constitution. Apart from this declaration, however, the IBP asserts no other basis in
support of its locus standi. The mere invocation by the IBP of its duty to preserve the rule of law and
nothing more, while undoubtedly true, is not sufficient to clothe it with standing in this case. This is too
general an interest which is shared by other groups and the whole citizenry. Based on the standards
above-stated, the IBP has failed to present a specific and substantial interest in the resolution of the
case. Its fundamental purpose which, under Section 2, Rule 139-A of the Rules of Court, is to elevate the
standards of the law profession and to improve the administration of justice is alien to, and cannot be
affected by the deployment of the Marines. It should also be noted that the interest of the National
President of the IBP who signed the petition, is his alone, absent a formal board resolution authorizing
him to file the present action. To be sure, members of the BAR, those in the judiciary included, have
varying opinions on the issue. Moreover, the IBP, assuming that it has duly authorized the National
President to file the petition, has not shown any specific injury which it has suffered or may suffer by
virtue of the questioned governmental act. Indeed, none of its members, whom the IBP purportedly
represents, has sustained any form of injury as a result of the operation of the joint visibility
patrols. Neither is it alleged that any of its members has been arrested or that their civil liberties have
been violated by the deployment of the Marines. What the IBP projects as injurious is the supposed
militarization of law enforcement which might threaten Philippine democratic institutions and may cause
more harm than good in the long run. Not only is the presumed injury not personal in character, it is
likewise too vague, highly speculative and uncertain to satisfy the requirement of standing. Since
petitioner has not successfully established a direct and personal injury as a consequence of the
questioned act, it does not possess the personality to assail the validity of the deployment of the
Marines. This Court, however, does not categorically rule that the IBP has absolutely no standing to raise
constitutional issues now or in the future. The IBP must, by way of allegations and proof, satisfy this
Court that it has sufficient stake to obtain judicial resolution of the controversy.
Having stated the foregoing, it must be emphasized that this Court has the discretion to take
cognizance of a suit which does not satisfy the requirement of legal standing when paramount interest is
involved.[16] In not a few cases, the Court has adopted a liberal attitude on the locus standi of a petitioner
where the petitioner is able to craft an issue of transcendental significance to the people.[17] Thus, when
the issues raised are of paramount importance to the public, the Court may brush aside technicalities of
procedure.[18] In this case, a reading of the petition shows that the IBP has advanced constitutional issues
which deserve the attention of this Court in view of their seriousness, novelty and weight as
precedents. Moreover, because peace and order are under constant threat and lawless violence occurs
in increasing tempo, undoubtedly aggravated by the Mindanao insurgency problem, the legal
controversy raised in the petition almost certainly will not go away. It will stare us in the face again. It,
therefore, behooves the Court to relax the rules on standing and to resolve the issue now, rather than
later.
The President did not commit grave abuse of discretion in calling out the Marines.
In the case at bar, the bone of contention concerns the factual determination of the President of
the necessity of calling the armed forces, particularly the Marines, to aid the PNP in visibility patrols. In
this regard, the IBP admits that the deployment of the military personnel falls under the Commander-in-
Chief powers of the President as stated in Section 18, Article VII of the Constitution, specifically, the
power to call out the armed forces to prevent or suppress lawless violence, invasion or rebellion. What
the IBP questions, however, is the basis for the calling of the Marines under the aforestated provision.
According to the IBP, no emergency exists that would justify the need for the calling of the military to
assist the police force. It contends that no lawless violence, invasion or rebellion exist to warrant the
calling of the Marines. Thus, the IBP prays that this Court review the sufficiency of the factual basis for
said troop [Marine] deployment.[19]
The Solicitor General, on the other hand, contends that the issue pertaining to the necessity of
calling the armed forces is not proper for judicial scrutiny since it involves a political question and the
resolution of factual issues which are beyond the review powers of this Court.
As framed by the parties, the underlying issues are the scope of presidential powers and limits,
and the extent of judicial review. But, while this Court gives considerable weight to the parties
formulation of the issues, the resolution of the controversy may warrant a creative approach that goes
beyond the narrow confines of the issues raised. Thus, while the parties are in agreement that the power
exercised by the President is the power to call out the armed forces, the Court is of the view that the
power involved may be no more than the maintenance of peace and order and promotion of the general
welfare.[20] For one, the realities on the ground do not show that there exist a state of warfare,
widespread civil unrest or anarchy. Secondly, the full brunt of the military is not brought upon the
citizenry, a point discussed in the latter part of this decision. In the words of the late Justice Irene Cortes
inMarcos v. Manglapus:
More particularly, this case calls for the exercise of the Presidents powers as protector of the
peace. [Rossiter, The American Presidency]. The power of the President to keep the peace is not limited
merely to exercising the commander-in-chief powers in times of emergency or to leading the State
against external and internal threats to its existence. The President is not only clothed with extraordinary
powers in times of emergency, but is also tasked with attending to the day-to-day problems of
maintaining peace and order and ensuring domestic tranquility in times when no foreign foe appears on
the horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties in times of peace is
not in any way diminished by the relative want of an emergency specified in the commander-in-chief
provision. For in making the President commander-in-chief the enumeration of powers that follow
cannot be said to exclude the Presidents exercising as Commander-in-Chief powers short of the calling of
the armed forces, or suspending the privilege of the writ ofhabeas corpus or declaring martial law, in
order to keep the peace, and maintain public order and security.
xxx[21]
Nonetheless, even if it is conceded that the power involved is the Presidents power to call out the
armed forces to prevent or suppress lawless violence, invasion or rebellion, the resolution of the
controversy will reach a similar result.
We now address the Solicitor Generals argument that the issue involved is not susceptible to
review by the judiciary because it involves a political question, and thus, notjusticiable.
As a general proposition, a controversy is justiciable if it refers to a matter which is appropriate for
court review.[22] It pertains to issues which are inherently susceptible of being decided on grounds
recognized by law. Nevertheless, the Court does not automatically assume jurisdiction over actual
constitutional cases brought before it even in instances that are ripe for resolution. One class of cases
wherein the Court hesitates to rule on are political questions. The reason is that political questions are
concerned with issues dependent upon the wisdom, not the legality, of a particular act or measure being
assailed. Moreover, the political question being a function of the separation of powers, the courts will
not normally interfere with the workings of another co-equal branch unless the case shows a clear need
for the courts to step in to uphold the law and the Constitution.
As Taada v. Cuenco[23] puts it, political questions refer to those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or executive branch of government. Thus, if
an issue is clearly identified by the text of the Constitution as matters for discretionary action by a
particular branch of government or to the people themselves then it is held to be a political question. In
the classic formulation of Justice Brennan in Baker v. Carr,[24] [p]rominent on the surface of any case held
to involve a political question is found a textually demonstrable constitutional commitment of the issue
to a coordinate political department; or a lack of judicially discoverable and manageable standards for
resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for
nonjudicial discretion; or the impossibility of a courts undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made; or the potentiality of embarassment from
multifarious pronouncements by various departments on the one question.
The 1987 Constitution expands the concept of judicial review by providing that (T)he Judicial
power shall be vested in one Supreme Court and in such lower courts as may be established by
law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.[25]Under this definition, the Court cannot agree with the Solicitor
General that the issue involved is a political question beyond the jurisdiction of this Court to
review. When the grant of power is qualified, conditional or subject to limitations, the issue of whether
the prescribed qualifications or conditions have been met or the limitations respected, is justiciable - the
problem being one of legality or validity, not its wisdom.[26] Moreover, the jurisdiction to delimit
constitutional boundaries has been given to this Court.[27] When political questions are involved, the
Constitution limits the determination as to whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of the official whose action is being questioned.[28]
By grave abuse of discretion is meant simply capricious or whimsical exercise of judgment that is
patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty
enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary
and despotic manner by reason of passion or hostility.[29]Under this definition, a court is without power
to directly decide matters over which full discretionary authority has been delegated. But while this
Court has no power to substitute its judgment for that of Congress or of the President, it may look into
the question of whether such exercise has been made in grave abuse of discretion.[30] A showing that
plenary power is granted either department of government, may not be an obstacle to judicial inquiry,
for the improvident exercise or abuse thereof may give rise to justiciable controversy.[31]
When the President calls the armed forces to prevent or suppress lawless violence, invasion or
rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is clear from
the intent of the framers and from the text of the Constitution itself. The Court, thus, cannot be called
upon to overrule the Presidents wisdom or substitute its own. However, this does not prevent an
examination of whether such power was exercised within permissible constitutional limits or whether it
was exercised in a manner constituting grave abuse of discretion. In view of the constitutional intent to
give the President full discretionary power to determine the necessity of calling out the armed forces, it
is incumbent upon the petitioner to show that the Presidents decision is totally bereft of factual
basis. The present petition fails to discharge such heavy burden as there is no evidence to support the
assertion that there exist no justification for calling out the armed forces. There is, likewise, no evidence
to support the proposition that grave abuse was committed because the power to call was exercised in
such a manner as to violate the constitutional provision on civilian supremacy over the military. In the
performance of this Courts duty of purposeful hesitation[32] before declaring an act of another branch as
unconstitutional, only where such grave abuse of discretion is clearly shown shall the Court interfere
with the Presidents judgment. To doubt is to sustain.
There is a clear textual commitment under the Constitution to bestow on the President full
discretionary power to call out the armed forces and to determine the necessity for the exercise of such
power. Section 18, Article VII of the Constitution, which embodies the powers of the President as
Commander-in-Chief, provides in part:
The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it
becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion
or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of the writ of habeas corpus, or place the Philippines or any
part thereof under martial law.
xxx
The full discretionary power of the President to determine the factual basis for the exercise of the
calling out power is also implied and further reinforced in the rest of Section 18, Article VII which reads,
thus:
xxx
Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the
writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The
Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session,
may revoke such proclamation or suspension, which revocation shall not be set aside by the
President. Upon the initiative of the President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion
shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the
factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the
extension thereof, and must promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning
of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military
courts and agencies over civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or
offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially
charged within three days, otherwise he shall be released.
Under the foregoing provisions, Congress may revoke such proclamation or suspension and the
Court may review the sufficiency of the factual basis thereof. However, there is no such equivalent
provision dealing with the revocation or review of the Presidents action to call out the armed forces. The
distinction places the calling out power in a different category from the power to declare martial law and
the power to suspend the privilege of the writ of habeas corpus, otherwise, the framers of the
Constitution would have simply lumped together the three powers and provided for their revocation and
review without any qualification. Expressio unius est exclusio alterius. Where the terms are expressly
limited to certain matters, it may not, by interpretation or construction, be extended to other
matters.[33] That the intent of the Constitution is exactly what its letter says, i.e., that the power to call is
fully discretionary to the President, is extant in the deliberation of the Constitutional Commission, to wit:
FR. BERNAS. It will not make any difference. I may add that there is a graduated power of the President
as Commander-in-Chief. First, he can call out such Armed Forces as may be necessary to suppress lawless
violence; then he can suspend the privilege of the writ of habeas corpus, then he can impose martial
law. This is a graduated sequence.
When he judges that it is necessary to impose martial law or suspend the privilege of the writ of habeas
corpus, his judgment is subject to review. We are making it subject to review by the Supreme Court and
subject to concurrence by the National Assembly. But when he exercises this lesser power of calling on
the Armed Forces, when he says it is necessary, it is my opinion that his judgment cannot be reviewed by
anybody.
xxx
FR. BERNAS. Let me just add that when we only have imminent danger, the matter can be handled by
the first sentence: The President may call out such armed forces to prevent or suppress lawless violence,
invasion or rebellion. So we feel that that is sufficient for handling imminent danger.
MR. DE LOS REYES. So actually, if a President feels that there is imminent danger, the matter can be
handled by the First Sentence: The President....may call out such Armed Forces to prevent or suppress
lawless violence, invasion or rebellion. So we feel that that is sufficient for handling imminent danger, of
invasion or rebellion, instead of imposing martial law or suspending the writ of habeas corpus, he must
necessarily have to call the Armed Forces of the Philippines as their Commander-in-Chief. Is that the
idea?
MR. REGALADO. That does not require any concurrence by the legislature nor is it subject to judicial
review.[34]
The reason for the difference in the treatment of the aforementioned powers highlights the intent
to grant the President the widest leeway and broadest discretion in using the power to call out because
it is considered as the lesser and more benign power compared to the power to suspend the privilege of
the writ of habeas corpus and the power to impose martial law, both of which involve the curtailment
and suppression of certain basic civil rights and individual freedoms, and thus necessitating safeguards
by Congress and review by this Court.
Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power to
suspend the privilege of the writ of habeas corpus or to impose martial law, two conditions must concur:
(1) there must be an actual invasion or rebellion and, (2) public safety must require it. These conditions
are not required in the case of the power to call out the armed forces. The only criterion is that
whenever it becomes necessary, the President may call the armed forces to prevent or suppress lawless
violence, invasion or rebellion." The implication is that the President is given full discretion and wide
latitude in the exercise of the power to call as compared to the two other powers.
If the petitioner fails, by way of proof, to support the assertion that the President acted without
factual basis, then this Court cannot undertake an independent investigation beyond the pleadings. The
factual necessity of calling out the armed forces is not easily quantifiable and cannot be objectively
established since matters considered for satisfying the same is a combination of several factors which
are not always accessible to the courts. Besides the absence of textual standards that the court may use
to judge necessity, information necessary to arrive at such judgment might also prove unmanageable for
the courts. Certain pertinent information might be difficult to verify, or wholly unavailable to the
courts. In many instances, the evidence upon which the President might decide that there is a need to
call out the armed forces may be of a nature not constituting technical proof.
On the other hand, the President as Commander-in-Chief has a vast intelligence network to gather
information, some of which may be classified as highly confidential or affecting the security of the
state. In the exercise of the power to call, on-the-spot decisions may be imperatively necessary in
emergency situations to avert great loss of human lives and mass destruction of property. Indeed, the
decision to call out the military to prevent or suppress lawless violence must be done swiftly and
decisively if it were to have any effect at all. Such a scenario is not farfetched when we consider the
present situation in Mindanao, where the insurgency problem could spill over the other parts of the
country. The determination of the necessity for the calling out power if subjected to unfettered judicial
scrutiny could be a veritable prescription for disaster, as such power may be unduly straitjacketed by an
injunction or a temporary restraining order every time it is exercised.
Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-in-
Chief of the Armed Forces, full discretion to call forth the military when in his judgment it is necessary to
do so in order to prevent or suppress lawless violence, invasion or rebellion. Unless the petitioner can
show that the exercise of such discretion was gravely abused, the Presidents exercise of judgment
deserves to be accorded respect from this Court.
The President has already determined the necessity and factual basis for calling the armed
forces. In his Memorandum, he categorically asserted that, [V]iolent crimes like bank/store robberies,
holdups, kidnappings and carnappings continue to occur in Metro Manila...[35] We do not doubt the
veracity of the Presidents assessment of the situation, especially in the light of present
developments. The Court takes judicial notice of the recent bombings perpetrated by lawless elements in
the shopping malls, public utilities, and other public places. These are among the areas of deployment
described in the LOI 2000. Considering all these facts, we hold that the President has sufficient factual
basis to call for military aid in law enforcement and in the exercise of this constitutional power.
The deployment of the Marines does not violate the civilian supremacy clause nor does it infringe the
civilian character of the police force.
Prescinding from its argument that no emergency situation exists to justify the calling of the
Marines, the IBP asserts that by the deployment of the Marines, the civilian task of law enforcement is
militarized in violation of Section 3, Article II[36] of the Constitution.
We disagree. The deployment of the Marines does not constitute a breach of the civilian
supremacy clause. The calling of the Marines in this case constitutes permissible use of military assets for
civilian law enforcement. The participation of the Marines in the conduct of joint visibility patrols is
appropriately circumscribed. The limited participation of the Marines is evident in the provisions of the
LOI itself, which sufficiently provides the metes and bounds of the Marines authority. It is noteworthy
that the local police forces are the ones in charge of the visibility patrols at all times, the real authority
belonging to the PNP. In fact, the Metro Manila Police Chief is the overall leader of the PNP-Philippine
Marines joint visibility patrols.[37] Under the LOI, the police forces are tasked to brief or orient the
soldiers on police patrol procedures.[38] It is their responsibility to direct and manage the deployment of
the Marines.[39] It is, likewise, their duty to provide the necessary equipment to the Marines and render
logistical support to these soldiers.[40] In view of the foregoing, it cannot be properly argued that military
authority is supreme over civilian authority. Moreover, the deployment of the Marines to assist the PNP
does not unmake the civilian character of the police force. Neither does it amount to an insidious
incursion of the military in the task of law enforcement in violation of Section 5(4), Article XVI of the
Constitution.[41]
In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the AFP, by his
alleged involvement in civilian law enforcement, has been virtually appointed to a civilian post in
derogation of the aforecited provision. The real authority in these operations, as stated in the LOI, is
lodged with the head of a civilian institution, the PNP, and not with the military. Such being the case, it
does not matter whether the AFP Chief actually participates in the Task Force Tulungan since he does
not exercise any authority or control over the same. Since none of the Marines was incorporated or
enlisted as members of the PNP, there can be no appointment to civilian position to speak of. Hence, the
deployment of the Marines in the joint visibility patrols does not destroy the civilian character of the
PNP.
Considering the above circumstances, the Marines render nothing more than assistance required
in conducting the patrols. As such, there can be no insidious incursion of the military in civilian affairs nor
can there be a violation of the civilian supremacy clause in the Constitution.
It is worth mentioning that military assistance to civilian authorities in various forms persists in
Philippine jurisdiction. The Philippine experience reveals that it is not averse to requesting the assistance
of the military in the implementation and execution of certain traditionally civil functions. As correctly
pointed out by the Solicitor General, some of the multifarious activities wherein military aid has been
rendered, exemplifying the activities that bring both the civilian and the military together in a
relationship of cooperation, are:
1. Elections;[42]
2. Administration of the Philippine National Red Cross;[43]
3. Relief and rescue operations during calamities and disasters;[44]
4. Amateur sports promotion and development;[45]
5. Development of the culture and the arts;[46]
6. Conservation of natural resources;[47]
7. Implementation of the agrarian reform program;[48]
8. Enforcement of customs laws;[49]
9. Composite civilian-military law enforcement activities;[50]
10. Conduct of licensure examinations;[51]
11. Conduct of nationwide tests for elementary and high school students;[52]
12. Anti-drug enforcement activities;[53]
13. Sanitary inspections;[54]
14. Conduct of census work;[55]
15. Administration of the Civil Aeronautics Board;[56]
 16. Assistance in installation of weather forecasting devices;[57] regulatory, proscriptive or compulsory military power, the deployment of a handful of Philippine
Marines constitutes no impermissible use of military power for civilian law enforcement.[71]
17. Peace and order policy formulation in local government units.[58]

This unquestionably constitutes a gloss on executive power resulting from a systematic, unbroken,
executive practice, long pursued to the knowledge of Congress and, yet, never before
questioned.[59] What we have here is mutual support and cooperation between the military and civilian
authorities, not derogation of civilian supremacy.
In the United States, where a long tradition of suspicion and hostility towards the use of military
force for domestic purposes has persisted,[60] and whose Constitution, unlike ours, does not expressly
provide for the power to call, the use of military personnel by civilian law enforcement officers is allowed
under circumstances similar to those surrounding the present deployment of the Philippine
Marines. Under the Posse Comitatus Act[61] of the US, the use of the military in civilian law enforcement
is generally prohibited, except in certain allowable circumstances. A provision of the Act states:
1385. Use of Army and Air Force as posse comitatus
It appears that the present petition is anchored on fear that once the armed forces are deployed,
the military will gain ascendancy, and thus place in peril our cherished liberties.Such apprehensions,
however, are unfounded. The power to call the armed forces is just that - calling out the armed
forces. Unless, petitioner IBP can show, which it has not, that in the deployment of the Marines, the
President has violated the fundamental law, exceeded his authority or jeopardized the civil liberties of
the people, this Court is not inclined to overrule the Presidents determination of the factual basis for the
calling of the Marines to prevent or suppress lawless violence.
One last point. Since the institution of the joint visibility patrol in January, 2000, not a single
citizen has complained that his political or civil rights have been violated as a result of the deployment of
the Marines. It was precisely to safeguard peace, tranquility and the civil liberties of the people that the
joint visibility patrol was conceived. Freedom and democracy will be in full bloom only when people feel
secure in their homes and in the streets, not when the shadows of violence and anarchy constantly lurk
in their midst.

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of WHEREFORE, premises considered, the petition is hereby DISMISSED.
Congress, willfully uses any part of the Army or the Air Force as posse comitatus or otherwise to execute
SO ORDERED.
the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both.[62]

To determine whether there is a violation of the Posse Comitatus Act in the use of military
personnel, the US courts[63] apply the following standards, to wit:

Were Army or Air Force personnel used by the civilian law enforcement officers at Wounded Knee in
such a manner that the military personnel subjected the citizens to the exercise of military power which
was regulatory, proscriptive, or compulsory[64] George Washington Law Review, pp. 404-433 (1986),
which discusses the four divergent standards for assessing acceptable involvement of military personnel
in civil law enforcement. See likewise HONORED IN THE BREECH: PRESIDENTIAL AUTHORITY TO EXECUTE
THE LAWS WITH MILITARY FORCE, 83 Yale Law Journal, pp. 130-152, 1973. 64 in nature, either presently
or prospectively?

xxx

When this concept is transplanted into the present legal context, we take it to mean that military
involvement, even when not expressly authorized by the Constitution or a statute, does not violate the
Posse Comitatus Act unless it actually regulates, forbids or compels some conduct on the part of those
claiming relief. A mere threat of some future injury would be insufficient. (emphasis supplied)

Even if the Court were to apply the above rigid standards to the present case to determine
whether there is permissible use of the military in civilian law enforcement, the conclusion is inevitable
that no violation of the civilian supremacy clause in the Constitution is committed. On this point, the
Court agrees with the observation of the Solicitor General:

3. The designation of tasks in Annex A[65] does not constitute the exercise of regulatory,
proscriptive, or compulsory military power. First, the soldiers do not control or direct the
operation. This is evident from Nos. 6,[66] 8(k)[67] and 9(a)[68] of Annex A. These soldiers, second,
also have no power to prohibit or condemn. In No. 9(d)[69] of Annex A, all arrested persons are
brought to the nearest police stations for proper disposition. And last, these soldiers apply no
coercive force. The materials or equipment issued to them, as shown in No. 8(c)[70] of Annex A, are
all low impact and defensive in character. The conclusion is that there being no exercise of
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 170165 August 15, 2006
B/GEN. (RET.) FRANCISCO V. GUDANI AND LT. COL. ALEXANDER F. BALUTAN Petitioners,
vs.
LT./GEN. GENEROSO S. SENGA CORONA, AS CHIEF OF STAFF OF THE CARPIO-MORALES, ARMED
FORCES OF THE CALLEJO, SR., PHILIPPINES, COL. GILBERTO AZCUNA, JOSE C. ROA AS THE PRE-TRIAL
TINGA, INVESTIGATING OFFICER, THE CHICO-NAZARIO, PROVOST MARSHALL GENERAL GARCIA, and OF
THE ARMED FORCES OF THE PHILIPPINES AND THE GENERAL COURT-MARTIAL, Respondents.
DECISION
TINGA, J.:
A most dangerous general proposition is foisted on the Court that soldiers who defy orders of their
superior officers are exempt
from the strictures of military law and discipline if such defiance is predicated on an act otherwise valid
under civilian law. Obedience and deference to the military chain of command and the President as
commander-in-chief are the cornerstones of a professional military in the firm cusp of civilian control.
These values of obedience and deference expected of military officers are content-neutral, beyond the
sway of the officers own sense of what is prudent or rash, or more elementally, of right or wrong. A self-
righteous military invites itself as the scoundrels activist solution to the "ills" of participatory democracy.
Petitioners seek the annulment of a directive from President Gloria Macapagal-Arroyo1 enjoining them
and other military officers from testifying before Congress without the Presidents consent. Petitioners
also pray for injunctive relief against a pending preliminary investigation against them, in preparation for
possible court-martial proceedings, initiated within the military justice system in connection with
petitioners violation of the aforementioned directive.
The Court is cognizant that petitioners, in their defense, invoke weighty constitutional principles that
center on fundamental freedoms enshrined in the Bill of Rights. Although these concerns will not be
addressed to the satisfaction of petitioners, the Court recognizes these values as of paramount
importance to our civil society, even if not determinative of the resolution of this petition. Had the
relevant issue before us been the right of the Senate to compel the testimony of petitioners, the
constitutional questions raised by them would have come to fore. Such a scenario could have very well
been presented to the Court in such manner, without the petitioners having had to violate a direct order
from their commanding officer. Instead, the Court has to resolve whether petitioners may be subjected
to military discipline on account of their defiance of a direct order of the AFP Chief of Staff.
The solicited writs of certiorari and prohibition do not avail; the petition must be denied.
I.
The petitioners are high-ranking officers of the Armed Forces of the Philippines (AFP). Both petitioners,
Brigadier General Francisco Gudani (Gen. Gudani) and Lieutenant Colonel Alexander Balutan (Col.
Balutan), belonged to the Philippine Marines. At the time of the subject incidents, both Gen. Gudani and
Col. Balutan were assigned to the Philippine Military Academy (PMA) in Baguio City, the former as the
PMA Assistant Superintendent, and the latter as the Assistant Commandant of Cadets.2
On 22 September 2005, Senator Rodolfo Biazon (Sen. Biazon) invited several senior officers of the AFP to
appear at a public hearing before the Senate Committee on National Defense and Security (Senate
Committee) scheduled on 28 September 2005. The hearing was scheduled after topics concerning the
conduct of the 2004 elections emerged in the public eye, particularly allegations of massive cheating and
the surfacing of copies of an audio excerpt purportedly of a phone conversation between President
Gloria Macapagal Arroyo and an official of the Commission on Elections (COMELEC) widely reputed as
then COMELEC Commissioner Virgilio Garcillano. At the time of the 2004 elections, Gen. Gudani had
been designated as commander, and Col. Balutan a member, of "Joint Task Force Ranao" by the AFP
Southern Command. "Joint Task Force Ranao" was tasked with the maintenance of peace and order
during the 2004 elections in the provinces of Lanao del Norte and Lanao del Sur.3 `
Gen. Gudani, Col. Balutan, and AFP Chief of Staff Lieutenant General Generoso Senga (Gen. Senga) were
among the several AFP officers who received a letter invitation from Sen. Biazon to attend the 28
September 2005 hearing. On 23 September 2005, Gen. Senga replied through a letter to Sen. Biazon that
he would be unable to attend the hearing due to a previous commitment in Brunei, but he nonetheless
"directed other officers from the AFP who were invited to attend the hearing."4
On 26 September 2005, the Office of the Chief of Staff of the AFP issued a Memorandum addressed to
the Superintendent of the PMA Gen. Cristolito P. Baloing (Gen. Baloing). It was signed by Lt. Col.
Hernando DCA Iriberri in behalf of Gen. Senga.5 Noting that Gen. Gudani and Col. Balutan had been
invited to attend the Senate Committee hearing on 28 September 2005, the Memorandum directed the
two officers to attend the hearing.6Conformably, Gen. Gudani and Col. Balutan filed their respective
requests for travel authority addressed to the PMA Superintendent.
On 27 September 2005, Gen. Senga wrote a letter to Sen. Biazon, requesting the postponement of the
hearing scheduled for the following day, since the AFP Chief of Staff was himself unable to attend said
hearing, and that some of the invited officers also could not attend as they were "attending to other
urgent operational matters." By this time, both Gen. Gudani and Col. Balutan had already departed
Baguio for Manila to attend the hearing.
Then on the evening of 27 September 2005, at around 10:10 p.m., a message was transmitted to the
PMA Superintendent from the office of Gen. Senga, stating as follows:
PER INSTRUCTION OF HER EXCELLENCY PGMA, NO AFP PERSONNEL SHALL APPEAR BEFORE
ANY CONGRESSIONAL OR SENATE HEARING WITHOUT HER APPROVAL. INFORM BGEN
FRANCISCO F GUDANI AFP AND LTC ALEXANDER BALUTAN PA (GSC) ACCORDINGLY.7
The following day, Gen. Senga sent another letter to Sen. Biazon, this time informing the senator that
"no approval has been granted by the President to any AFP officer to appear" before the hearing
scheduled on that day. Nonetheless, both Gen. Gudani and Col. Balutan were present as the hearing
started, and they both testified as to the conduct of the 2004 elections.
The Office of the Solicitor General (OSG), representing the respondents before this Court, has offered
additional information surrounding the testimony of Gen. Gudani and Col. Balutan. The OSG manifests
that the couriers of the AFP Command Center had attempted to deliver the radio message to Gen.
Gudanis residence in a subdivision in Paraaque City late in the night of 27 September 2005, but they
were not permitted entry by the subdivision guards. The next day, 28 September 2005, shortly before
the start of the hearing, a copy of Gen. Sengas letter to Sen. Biazon sent earlier that day was handed at
the Senate by Commodore Amable B. Tolentino of the AFP Office for Legislative Affairs to Gen. Gudani,
who replied that he already had a copy. Further, Gen. Senga called Commodore Tolentino on the latters
cell phone and asked to talk to Gen. Gudani, but Gen. Gudani refused. In response, Gen. Senga
instructed Commodore Tolentino to inform Gen. Gudani that "it was an order," yet Gen. Gudani still
refused to take Gen. Sengas call.8
A few hours after Gen. Gudani and Col. Balutan had concluded their testimony, the office of Gen. Senga
issued a statement which noted that the two had appeared before the Senate Committee "in spite of the
fact that a guidance has been given that a Presidential approval should be sought prior to such an
appearance;" that such directive was "in keeping with the time[-]honored principle of the Chain of
Command;" and that the two officers "disobeyed a legal order, in violation of A[rticles of] W[ar] 65
(Willfully Disobeying Superior Officer), hence they will be subjected to General Court Martial proceedings
x x x" Both Gen. Gudani and Col. Balutan were likewise relieved of their assignments then.9
On the very day of the hearing, 28 September 2005, President Gloria-Macapagal-Arroyo issued Executive
Order No. 464 (E.O. 464). The OSG notes that the E.O. "enjoined officials of the executive department
including the military establishment from appearing in any legislative inquiry without her
approval."10 This Court subsequently ruled on the constitutionality of the said executive order in Senate
v. Ermita.11 The relevance of E.O. 464 andSenate to the present petition shall be discussed forthwith.
In the meantime, on 30 September 2005, petitioners were directed by General Senga, through Col.
Henry A. Galarpe of the AFP Provost Marshal General, to appear before the Office of the Provost Marshal
General (OPMG) on 3 October 2005 for investigation. During their appearance before Col. Galarpe, both
petitioners invoked their right to remain silent.12 The following day, Gen. Gudani was compulsorily
retired from military service, having reached the age of 56.13
In an Investigation Report dated 6 October 2005, the OPMG recommended that petitioners be charged
with violation of Article of War 65, on willfully disobeying a superior officer, in relation to Article of War
97, on conduct prejudicial to the good order and military discipline.14 As recommended, the case was
referred to a Pre-Trial Investigation Officer (PTIO) preparatory to trial by the General Court Martial
(GCM).15 Consequently, on 24 October 2005, petitioners were separately served with Orders respectively
addressed to them and signed by respondent Col. Gilbert Jose C. Roa, the Pre-Trial Investigating Officer
of the PTIO. The Orders directed petitioners to appear in person before Col. Roa at the Pre-Trial
Investigation of the Charges for violation of Articles 6516 and 9717 of Commonwealth Act No. 408,18 and
to submit their counter-affidavits and affidavits of witnesses at the Office of the Judge Advocate
General.19 The Orders were accompanied by respective charge sheets against petitioners, accusing them
of violating Articles of War 65 and 97.
It was from these premises that the present petition for certiorari and prohibition was filed, particularly
seeking that (1) the order of President Arroyo coursed through Gen. Senga preventing petitioners from
testifying before Congress without her prior approval be declared unconstitutional; (2) the charges
stated in the charge sheets against petitioners be quashed; and (3) Gen. Senga, Col. Galarpe, Col. Roa,
and their successors-in-interest or persons acting for and on their behalf or orders, be permanently
enjoined from proceeding against petitioners, as a consequence of their having testified before the
Senate on 28 September 2005.20
Petitioners characterize the directive from President Arroyo requiring her prior approval before any AFP
personnel appear before Congress as a "gag order," which violates the principle of separation of powers
in government as it interferes with the investigation of the Senate Committee conducted in aid of
legislation. They also equate the "gag order" with culpable violation of the Constitution, particularly in
relation to the publics constitutional right to information and transparency in matters of public concern.
Plaintively, petitioners claim that "the Filipino people have every right to hear the [petitioners]
testimonies," and even if the "gag order" were unconstitutional, it still was tantamount to "the crime of
obstruction of justice." Petitioners further argue that there was no law prohibiting them from testifying
before the Senate, and in fact, they were appearing in obeisance to the authority of Congress to conduct
inquiries in aid of legislation.
Finally, it is stressed in the petition that Gen. Gudani was no longer subject to military jurisdiction on
account of his compulsory retirement on 4 October 2005. It is pointed out that Article 2, Title I of the
Articles of War defines persons subject to military law as "all officers and soldiers in the active service" of
the AFP.
II.
We first proceed to define the proper litigable issues. Notably, the guilt or innocence of petitioners in
violating Articles 65 and 97 of the Articles of War is not an issue before this Court, especially considering
that per records, petitioners have not yet been subjected to court martial proceedings. Owing to the
absence of such proceedings, the correct inquiry should be limited to whether respondents could
properly initiate such proceedings preparatory to a formal court-martial, such as the aforementioned
preliminary investigation, on the basis of petitioners acts surrounding their testimony before the Senate
on 28 September 2005. Yet this Court, consistent with the principle that it is not a trier of facts at first
instance,21 is averse to making any authoritative findings of fact, for that function is first for the court-
martial court to fulfill.
Thus, we limit ourselves to those facts that are not controverted before the Court, having been
commonly alleged by petitioners and the OSG (for respondents). Petitioners were called by the Senate
Committee to testify in its 28 September 2005 hearing. Petitioners attended such hearing and testified
before the Committee, despite the fact that the day before, there was an order from Gen. Senga (which
in turn was sourced "per instruction" from President Arroyo) prohibiting them from testifying without
the prior approval of the President. Petitioners do not precisely admit before this Court that they had
learned of such order prior to their testimony, although the OSG asserts that at the very least, Gen.
Gudani already knew of such order before he testified.22 Yet while this fact may be ultimately material in
the court-martial proceedings, it is not determinative of this petition, which as stated earlier, does not
proffer as an issue whether petitioners are guilty of violating the Articles of War.
What the Court has to consider though is whether the violation of the aforementioned order of Gen.
Senga, which emanated from the President, could lead to any investigation for court-martial of
petitioners. It has to be acknowledged as a general principle23 that AFP personnel of whatever rank are
liable under military law for violating a direct order of an officer superior in rank. Whether petitioners did
violate such an order is not for the Court to decide, but it will be necessary to assume, for the purposes
of this petition, that petitioners did so.
III.
Preliminarily, we must discuss the effect of E.O. 464 and the Courts ruling in Senate on the present
petition.Notably, it is not alleged that petitioners were in any way called to task for violating E.O. 464,
but instead, they were charged for violating the direct order of Gen. Senga not to appear before the
Senate Committee, an order that stands independent of the executive order. Distinctions are called for,
since Section 2(b) of E.O. 464 listed "generals and flag officers of the Armed Forces of the Philippines and
such other officers who in the judgment of the Chief of Staff are covered by the executive privilege," as
among those public officials required in Section 3 of E.O. 464 "to secure prior consent of the President
prior to appearing before either House of Congress." The Court in Senate declared both Section 2(b) and
Section 3 void,24 and the impression may have been left following Senate that it settled as doctrine, that
the President is prohibited from requiring military personnel from attending congressional hearings
without having first secured prior presidential consent. That impression is wrong.
Senate turned on the nature of executive privilege, a presidential prerogative which is encumbered by
significant limitations. Insofar as E.O. 464 compelled officials of the executive branch to seek prior
presidential approval before appearing before Congress, the notion of executive control also comes into
consideration.25 However, the ability of the President to require a military official to secure prior consent
before appearing before Congress pertains to a wholly different and independent specie of presidential
authoritythe commander-in-chief powers of the President. By tradition and jurisprudence, the
commander-in-chief powers of the President are not encumbered by the same degree of restriction as
that which may attach to executive privilege or executive control.
During the deliberations in Senate, the Court was very well aware of the pendency of this petition as well
as the issues raised herein. The decision in Senate was rendered with the comfort that the nullification of
portions of E.O. 464 would bear no impact on the present petition since petitioners herein were not
called to task for violating the executive order. Moreover, the Court was then cognizant that Senate and
this case would ultimately hinge on disparate legal issues. Relevantly, Senate purposely did not touch
upon or rule on the faculty of the President, under the aegis of the commander-in-chief powers26 to
require military officials from securing prior consent before appearing before Congress. The pertinent
factors in considering that question are markedly outside of those which did become relevant in
adjudicating the issues raised in Senate. It is in this petition that those factors come into play.
At this point, we wish to dispose of another peripheral issue before we strike at the heart of the matter.
General Gudani argues that he can no longer fall within the jurisdiction of the court-martial, considering
his retirement last 4 October 2005. He cites Article 2, Title I of Commonwealth Act No. 408, which
defines persons subject to military law as, among others, "all officers and soldiers in the active service of
the [AFP]," and points out that he is no longer in the active service.
This point was settled against Gen. Gudanis position in Abadilla v. Ramos,27 where the Court declared
that an officer whose name was dropped from the roll of officers cannot be considered to be outside the
jurisdiction of military authorities when military justice proceedings were initiated against him before
the termination of his service. Once jurisdiction has been acquired over the officer, it continues until his
case is terminated. Thus, the Court held:
The military authorities had jurisdiction over the person of Colonel Abadilla at the time of the alleged
offenses. This jurisdiction having been vested in the military authorities, it is retained up to the end of
the proceedings against Colonel Abadilla. Well-settled is the rule that jurisdiction once acquired is not
lost upon the instance of the parties but continues until the case is terminated.28
Citing Colonel Winthrops treatise on Military Law, the Court further stated:
We have gone through the treatise of Colonel Winthrop and We find the following passage which goes
against the contention of the petitioners, viz
3. Offenders in general Attaching of jurisdiction. It has further been held, and is now settled law, in
regard to military offenders in general, that if the military jurisdiction has once duly attached to them
previous to the date of the termination of their legal period of service, they may be brought to trial by
court-martial after that date, their discharge being meanwhile withheld. This principle has mostly been
applied to cases where the offense was committed just prior to the end of the term. In such cases the
interests of discipline clearly forbid that the offender should go unpunished. It is held therefore that if
before the day on which his service legally terminates and his right to a discharge is complete,
proceedings with a view to trial are commenced against him as by arrest or the service of charges,
the military jurisdiction will fully attach and once attached may be continued by a trial by court-
martial ordered and held after the end of the term of the enlistment of the accused x x x 29
Thus, military jurisdiction has fully attached to Gen. Gudani inasmuch as both the acts complained of and
the initiation of the proceedings against him occurred before he compulsorily retired on 4 October 2005.
We see no reason to unsettle the Abadilla doctrine. The OSG also points out that under Section 28 of
Presidential Decree No. 1638, as amended, "[a]n officer or enlisted man carried in the retired list [of the
Armed Forces of the Philippines] shall be subject to the Articles of War x x x" 30 To this citation,
petitioners do not offer any response, and in fact have excluded the matter of Gen. Gudanis retirement
as an issue in their subsequent memorandum.
IV.
We now turn to the central issues.
Petitioners wish to see annulled the "gag order" that required them to secure presidential consent prior
to their appearance before the Senate, claiming that it violates the constitutional right to information
and transparency in matters of public concern; or if not, is tantamount at least to the criminal acts of
obstruction of justice and grave coercion. However, the proper perspective from which to consider this
issue entails the examination of the basis and authority of the President to issue such an order in the first
place to members of the AFP and the determination of whether such an order is subject to any
limitations.
The vitality of the tenet that the President is the commander-in-chief of the Armed Forces is most crucial
to the democratic way of life, to civilian supremacy over the military, and to the general stability of our
representative system of government. The Constitution reposes final authority, control and supervision
of the AFP to the President, a civilian who is not a member of the armed forces, and whose duties as
commander-in-chief represent only a part of the organic duties imposed upon the office, the other
functions being clearly civil in nature.31 Civilian supremacy over the military also countermands the
notion that the military may bypass civilian authorities, such as civil courts, on matters such as
conducting warrantless searches and seizures.32
Pursuant to the maintenance of civilian supremacy over the military, the Constitution has allocated
specific roles to the legislative and executive branches of government in relation to military affairs.
Military appropriations, as with all other appropriations, are determined by Congress, as is the power to
declare the existence of a state of war.33Congress is also empowered to revoke a proclamation of martial
law or the suspension of the writ of habeas corpus.34 The approval of the Commission on Appointments
is also required before the President can promote military officers from the rank of colonel or naval
captain.35 Otherwise, on the particulars of civilian dominance and administration over the military, the
Constitution is silent, except for the commander-in-chief clause which is fertile in meaning and
implication as to whatever inherent martial authority the President may possess.36
The commander-in-chief provision in the Constitution is denominated as Section 18, Article VII, which
begins with the simple declaration that "[t]he President shall be the Commander-in-Chief of all armed
forces of the Philippines x x x"37 Outside explicit constitutional limitations, such as those found in Section
5, Article XVI, the commander-in-chief clause vests on the President, as commander-in-chief, absolute
authority over the persons and actions of the members of the armed forces. Such authority includes the
ability of the President to restrict the travel, movement and speech of military officers, activities which
may otherwise be sanctioned under civilian law.
Reference to Kapunan, Jr. v. De Villa38 is useful in this regard. Lt. Col. Kapunan was ordered confined
under "house arrest" by then Chief of Staff (later President) Gen. Fidel Ramos. Kapunan was also
ordered, as a condition for his house arrest, that he may not issue any press statements or give any press
conference during his period of detention. The Court unanimously upheld such restrictions, noting:
[T]he Court is of the view that such is justified by the requirements of military discipline. It cannot be
gainsaid that certain liberties of persons in the military service, including the freedom of speech, may
be circumscribed by rules of military discipline. Thus, to a certain degree, individual rights may be
curtailed, because the effectiveness of the military in fulfilling its duties under the law depends to a
large extent on the maintenance of discipline within its ranks. Hence, lawful orders must be followed
without question and rules must be faithfully complied with, irrespective of a soldier's personal views
on the matter. It is from this viewpoint that the restrictions imposed on petitioner Kapunan, an officer in
the AFP, have to be considered.39
Any good soldier, or indeed any ROTC cadet, can attest to the fact that the military way of life
circumscribes several of the cherished freedoms of civilian life. It is part and parcel of the military
package. Those who cannot abide by these limitations normally do not pursue a military career and
instead find satisfaction in other fields; and in fact many of those discharged from the service are
inspired in their later careers precisely by their rebellion against the regimentation of military life.
Inability or unwillingness to cope with military discipline is not a stain on character, for the military mode
is a highly idiosyncratic path which persons are not generally conscripted into, but volunteer themselves
to be part of. But for those who do make the choice to be a soldier, significant concessions to personal
freedoms are expected. After all, if need be, the men and women of the armed forces may be
commanded upon to die for country, even against their personal inclinations.
It may be so that military culture is a remnant of a less democratic era, yet it has been fully integrated
into the democratic system of governance. The constitutional role of the armed forces is as protector of
the people and of the State.40 Towards this end, the military must insist upon a respect for duty and a
discipline without counterpart in civilian life.41 The laws and traditions governing that discipline have a
long history; but they are founded on unique military exigencies as powerful now as in the past.42 In the
end, it must be borne in mind that the armed forces has a distinct subculture with unique needs, a
specialized society separate from civilian society. 43 In the elegant prose of the eminent British military
historian, John Keegan:
[Warriors who fight wars have] values and skills [which] are not those of politicians and diplomats. They
are those of a world apart, a very ancient world, which exists in parallel with the everyday world but
does not belong to it. Both worlds change over time, and the warrior world adopts in step to the civilian.
It follows it, however, at a distance. The distance can never be closed, for the culture of the warrior can
never be that of civilization itself.44
Critical to military discipline is obeisance to the military chain of command. Willful disobedience of a
superior officer is punishable by court-martial under Article 65 of the Articles of War.45 "An individual
soldier is not free to ignore the lawful orders or duties assigned by his immediate superiors. For there
would be an end of all discipline if the seaman and marines on board a ship of war [or soldiers deployed
in the field], on a distant service, were permitted to act upon their own opinion of their rights [or their
opinion of the
Presidents intent], and to throw off the authority of the commander whenever they supposed it to be
unlawfully exercised."46
Further traditional restrictions on members of the armed forces are those imposed on free speech and
mobility.1wphi1Kapunan is ample precedent in justifying that a soldier may be restrained by a superior
officer from speaking out on certain matters. As a general rule, the discretion of a military officer to
restrain the speech of a soldier under his/her command will be accorded deference, with minimal regard
if at all to the reason for such restraint. It is integral to military discipline that the soldiers speech be
with the consent and approval of the military commander.
The necessity of upholding the ability to restrain speech becomes even more imperative if the soldier
desires to speak freely on political matters. The Constitution requires that "[t]he armed forces shall be
insulated from partisan politics," and that [n]o member of the military shall engage directly or indirectly
in any partisan political activity, except to vote."47 Certainly, no constitutional provision or military
indoctrination will eliminate a soldiers ability to form a personal political opinion, yet it is vital that such
opinions be kept out of the public eye. For one, political belief is a potential source of discord among
people, and a military torn by political strife is incapable of fulfilling its constitutional function as
protectors of the people and of the State. For another, it is ruinous to military discipline to foment an
atmosphere that promotes an active dislike of or dissent against the President, the commander-in-chief
of the armed forces. Soldiers are constitutionally obliged to obey a President they may dislike or distrust.
This fundamental principle averts the country from going the way of banana republics.
Parenthetically, it must be said that the Court is well aware that our countrys recent past is marked by
regime changes wherein active military dissent from the chain of command formed a key, though not
exclusive, element. The Court is not blind to history, yet it is a judge not of history but of the
Constitution. The Constitution, and indeed our modern democratic order, frown in no uncertain terms
on a politicized military, informed as they are on the trauma of absolute martial rule. Our history might
imply that a political military is part of the natural order, but this view cannot be affirmed by the legal
order. The evolutionary path of our young democracy necessitates a reorientation from this view, reliant
as our socio-political culture has become on it. At the same time, evolution mandates a similar demand
that our system of governance be more responsive to the needs and aspirations of the citizenry, so as to
avoid an environment vulnerable to a military apparatus able at will to exert an undue influence in our
polity.
Of possibly less gravitas, but of equal importance, is the principle that mobility of travel is another
necessary restriction on members of the military. A soldier cannot leave his/her post without the
consent of the commanding officer. The reasons are self-evident. The commanding officer has to be
aware at all times of the location of the troops under command, so as to be able to appropriately
respond to any exigencies. For the same reason, commanding officers have to be able to restrict the
movement or travel of their soldiers, if in their judgment, their presence at place of call of duty is
necessary. At times, this may lead to unsentimental, painful consequences, such as a soldier being
denied permission to witness the birth of his first-born, or to attend the funeral of a parent. Yet again,
military life calls for considerable personal sacrifices during the period of conscription, wherein the
higher duty is not to self but to country.
Indeed, the military practice is to require a soldier to obtain permission from the commanding officer
before he/she may leave his destination. A soldier who goes from the properly appointed place of duty
or absents from his/her command, guard, quarters, station, or camp without proper leave is subject to
punishment by court-martial.48 It is even clear from the record that petitioners had actually requested
for travel authority from the PMA in Baguio City to Manila, to attend the Senate Hearing. 49 Even
petitioners are well aware that it was necessary for them to obtain permission from their superiors
before they could travel to Manila to attend the Senate Hearing.
It is clear that the basic position of petitioners impinges on these fundamental principles we have
discussed. They seek to be exempted from military justice for having traveled to the Senate to testify
before the Senate Committee against the express orders of Gen. Senga, the AFP Chief of Staff. If
petitioners position is affirmed, a considerable exception would be carved from the unimpeachable right
of military officers to restrict the speech and movement of their juniors. The ruinous consequences to
the chain of command and military discipline simply cannot warrant the Courts imprimatur on
petitioners position.
V.
Still, it would be highly myopic on our part to resolve the issue solely on generalities surrounding military
discipline. After all, petitioners seek to impress on us that their acts are justified as they were responding
to an invitation from the Philippine Senate, a component of the legislative branch of government. At the
same time, the order for them not to testify ultimately came from the President, the head of the
executive branch of government and the commander-in-chief of the armed forces.
Thus, we have to consider the question: may the President prevent a member of the armed forces from
testifying before a legislative inquiry? We hold that the President has constitutional authority to do so,
by virtue of her power as commander-in-chief, and that as a consequence a military officer who defies
such injunction is liable under military justice. At the same time, we also hold that any chamber of
Congress which seeks the appearance before it of a military officer against the consent of the President
has adequate remedies under law to compel such attendance. Any military official whom Congress
summons to testify before it may be compelled to do so by the President. If the President is not so
inclined, the President may be commanded by judicial order to compel the attendance of the military
officer. Final judicial orders have the force of the law of the land which the President has the duty to
faithfully execute.50
Explication of these principles is in order.
As earlier noted, we ruled in Senate that the President may not issue a blanket requirement of prior
consent on executive officials summoned by the legislature to attend a congressional hearing. In doing
so, the Court recognized the considerable limitations on executive privilege, and affirmed that the
privilege must be formally invoked on specified grounds. However, the ability of the President to
prevent military officers from testifying before Congress does not turn on executive privilege, but on
the Chief Executives power as commander-in-chief to control the actions and speech of members of
the armed forces. The Presidents prerogatives as commander-in-chief are not hampered by the same
limitations as in executive privilege.
Our ruling that the President could, as a general rule, require military officers to seek presidential
approval before appearing before Congress is based foremost on the notion that a contrary rule unduly
diminishes the prerogatives of the President as commander-in-chief. Congress holds significant control
over the armed forces in matters such as budget appropriations and the approval of higher-rank
promotions,51 yet it is on the President that the Constitution vests the title as commander-in-chief and all
the prerogatives and functions appertaining to the position. Again, the exigencies of military discipline
and the chain of command mandate that the Presidents ability to control the individual members of the
armed forces be accorded the utmost respect. Where a military officer is torn between obeying the
President and obeying the Senate, the Court will without hesitation affirm that the officer has to choose
the President. After all, the Constitution prescribes that it is the President, and not the Senate, who is
the commander-in-chief of the armed forces.52
At the same time, the refusal of the President to allow members of the military to appear before
Congress is still subject to judicial relief. The Constitution itself recognizes as one of the legislatures
functions is the conduct of inquiries in aid of legislation.53 Inasmuch as it is ill-advised for Congress to
interfere with the Presidents power as commander-in-chief, it is similarly detrimental for the President
to unduly interfere with Congresss right to conduct legislative inquiries. The impasse did not come to
pass in this petition, since petitioners testified anyway despite the presidential prohibition. Yet the Court
is aware that with its pronouncement today that the President has the right to require prior consent
from members of the armed forces, the clash may soon loom or actualize.
We believe and hold that our constitutional and legal order sanctions a modality by which members of
the military may be compelled to attend legislative inquiries even if the President desires otherwise, a
modality which does not offend the Chief Executives prerogatives as commander-in-chief. The remedy
lies with the courts.
The fact that the executive branch is an equal, coordinate branch of government to the legislative
creates a wrinkle to any basic rule that persons summoned to testify before Congress must do so. There
is considerable interplay between the legislative and executive branches, informed by due deference and
respect as to their various constitutional functions. Reciprocal courtesy idealizes this relationship; hence,
it is only as a last resort that one branch seeks to compel the other to a particular mode of behavior. The
judiciary, the third coordinate branch of government, does not enjoy a similar dynamic with either the
legislative or executive branches. Whatever weakness inheres on judicial power due to its inability to
originate national policies and legislation, such is balanced by the fact that it is the branch empowered
by the Constitution to compel obeisance to its rulings by the other branches of government.
As evidenced by Arnault v. Nazareno54 and Bengzon v. Senate Blue Ribbon Committee,55 among others,
the Court has not shirked from reviewing the exercise by Congress of its power of legislative
inquiry.56 Arnaultrecognized that the legislative power of inquiry and the process to enforce it, "is an
essential and appropriate auxiliary to the legislative function."57 On the other
hand, Bengzon acknowledged that the power of both houses of Congress to conduct inquiries in aid of
legislation is not "absolute or unlimited", and its exercise is circumscribed by Section 21, Article VI of the
Constitution.58 From these premises, the Court enjoined the Senate Blue Ribbon Committee from
requiring the petitioners in Bengzon from testifying and producing evidence before the committee,
holding that the inquiry in question did not involve any intended legislation.
Senate affirmed both the Arnault and Bengzon rulings. It elucidated on the constitutional scope and
limitations on the constitutional power of congressional inquiry. Thus:
As discussed in Arnault, the power of inquiry, "with process to enforce it," is grounded on the necessity
of information in the legislative process. If the information possessed by executive officials on the
operation of their offices is necessary for wise legislation on that subject, by parity of reasoning,
Congress has the right to that information and the power to compel the disclosure thereof.
As evidenced by the American experience during the so-called "McCarthy era", however, the right of
Congress to conduct inquirites in aid of legislation is, in theory, no less susceptible to abuse than
executive or judicial power. It may thus be subjected to judicial review pursuant to the Courts certiorari
powers under Section 1, Article VIII of the Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee, the inquiry itself might not properly be in
aid of legislation, and thus beyond the constitutional power of Congress. Such inquiry could not usurp
judicial functions. Parenthetically, one possible way for Congress to avoid such result as occurred
in Bengzon is to indicate in its invitations to the public officials concerned, or to any person for that
matter, the possible needed statute which prompted the need for the inquiry. Given such statement in
its invitations, along with the usual indication of the subject of inquiry and the questions relative to and
in furtherance thereof, there would be less room for speculation on the part of the person invited on
whether the inquiry is in aid of legislation.
Section 21, Article VI likewise establishes critical safeguards that proscribe the legislative power of
inquiry. The provision requires that the inquiry be done in accordance with the Senate or Houses duly
published rules of procedure, necessarily implying the constitutional infirmity of an inquiry conducted
without duly published rules of procedure. Section 21 also mandates that the rights of persons appearing
in or affected by such inquiries be respected, an imposition that obligates Congress to adhere to the
guarantees in the Bill of Rights.
issues ultimately detract from the main point that they testified before the Senate despite an order
from their commanding officer and their commander-in-chief for them not to do so,61 in contravention of
the traditions of military discipline which we affirm today.1wphi1 The issues raised by petitioners could
have very well been raised and properly adjudicated if the proper procedure was observed. Petitioners
could have been appropriately allowed to testify before the Senate without having to countermand their
Commander-in-chief and superior officer under the setup we have prescribed.

These abuses are, of course, remediable before the courts, upon the proper suit filed by the persons We consider the other issues raised by petitioners unnecessary to the resolution of this petition.
affected, even if they belong to the executive branch. Nonetheless, there may be exceptional
circumstances wherein a clear pattern of abuse of the legislative power of inquiry might be established,
Petitioners may have been of the honest belief that they were defying a direct order of their
resulting in palpable violations of the rights guaranteed to members of the executive department under
Commander-in-Chief and Commanding General in obeisance to a paramount idea formed within their
the Bill of Rights. In such instances, depending on the particulars of each case, attempts by the Executive
consciences, which could not be lightly ignored. Still, the Court, in turn, is guided by the superlative
Branch to forestall these abuses may be accorded judicial sanction59 .
principle that is the Constitution, the embodiment of the national conscience. The Constitution simply
does not permit the infraction which petitioners have allegedly committed, and moreover, provides for
In Senate, the Court ruled that the President could not impose a blanket prohibition barring executive an orderly manner by which the same result could have been achieved without offending constitutional
officials from testifying before Congress without the Presidents consent notwithstanding the invocation principles.
of executive privilege to justify such prohibition. The Court did not rule that the power to conduct
legislative inquiry ipso facto superseded the claim of executive privilege, acknowledging instead that the
WHEREFORE, the petition is DENIED. No pronouncement as to costs.
viability of executive privilege stood on a case to case basis. Should neither branch yield to the other
branchs assertion, the constitutional recourse is to the courts, as the final arbiter if the dispute. It is only
the courts that can compel, with conclusiveness, attendance or non-attendance in legislative inquiries. SO ORDERED.

Following these principles, it is clear that if the President or the Chief of Staff refuses to allow a member
of the AFP to appear before Congress, the legislative body seeking such testimony may seek judicial relief
to compel the attendance. Such judicial action should be directed at the heads of the executive branch
or the armed forces, the persons who wield authority and control over the actions of the officers
concerned. The legislative purpose of such testimony, as well as any defenses against the same
whether grounded on executive privilege, national security or similar concerns would be accorded
due judicial evaluation. All the constitutional considerations pertinent to either branch of government
may be raised, assessed, and ultimately weighed against each other. And once the courts speak with
finality, both branches of government have no option but to comply with the decision of the courts,
whether the effect of the decision is to their liking or disfavor.

Courts are empowered, under the constitutional principle of judicial review, to arbitrate disputes
between the legislative and executive branches of government on the proper constitutional parameters
of power.60 This is the fair and workable solution implicit in the constitutional allocation of powers
among the three branches of government. The judicial filter helps assure that the particularities of each
case would ultimately govern, rather than any overarching principle unduly inclined towards one branch
of government at the expense of the other. The procedure may not move as expeditiously as some may
desire, yet it ensures thorough deliberation of all relevant and cognizable issues before one branch is
compelled to yield to the other. Moreover, judicial review does not preclude the legislative and
executive branches from negotiating a mutually acceptable solution to the impasse. After all, the two
branches, exercising as they do functions and responsibilities that are political in nature, are free to
smooth over the thorns in their relationship with a salve of their own choosing.

And if emphasis be needed, if the courts so rule, the duty falls on the shoulders of the President, as
commander-in-chief, to authorize the appearance of the military officers before Congress. Even if the
President has earlier disagreed with the notion of officers appearing before the legislature to testify,
the Chief Executive is nonetheless obliged to comply with the final orders of the courts.

Petitioners have presented several issues relating to the tenability or wisdom of the Presidents order on
them and other military officers not to testify before Congress without the Presidents consent. Yet these
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 164007 August 10, 2006
LT. (SG) EUGENE GONZALES, LT. (SG) ANDY TORRATO, LT. (SG) ANTONIO TRILLANES IV, CPT. GARY
ALEJANO, LT. (SG) JAMES LAYUG, CPT. GERARDO GAMBALA, CPT. NICANOR FAELDON, LT. (SG)
MANUEL CABOCHAN, ENS. ARMAND PONTEJOS, LT. (JG) ARTURO PASCUA, and 1LT. JONNEL
SANGGALANG,Petitioners,
vs.
GEN. NARCISO ABAYA, in his capacity as Chief of Staff of the Armed Forces of the Philippines, and B.
GEN. MARIANO M. SARMIENTO, JR., in his capacity as the Judge Advocate General of the Judge
Advocate Generals Office (JAGO), Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the Petition for Prohibition (with prayer for a temporary restraining order) filed by
the above-named members of the Armed Forces of the Philippines (AFP), herein petitioners, against the
AFP Chief of Staff and the Judge Advocate General, respondents.
The facts are:
On July 26, 2003, President Gloria Macapagal Arroyo received intelligence reports that some members of
the AFP, with high-powered weapons, had abandoned their designated places of assignment. Their aim
was to destabilize the government. The President then directed the AFP and the Philippine National
Police (PNP) to track and arrest them.
On July 27, 2003 at around 1:00 a.m., more than 300 heavily armed junior officers and enlisted men of
the AFP mostly from the elite units of the Armys Scout Rangers and the Navys Special Warfare Group
entered the premises of the Oakwood Premier Luxury Apartments on Ayala Avenue, Makati City. They
disarmed the security guards and planted explosive devices around the building.
Led by Navy Lt. (SG) Antonio Trillanes IV, the troops sported red armbands emblazoned with the emblem
of the"Magdalo" faction of the Katipunan. 1 The troops then, through broadcast media, announced their
grievances against the administration of President Gloria Macapagal Arroyo, such as the graft and
corruption in the military, the illegal sale of arms and ammunition to the "enemies" of the State, and the
bombings in Davao City intended to acquire more military assistance from the US government. They
declared their withdrawal of support from their Commander-in-Chief and demanded that she resign as
President of the Republic. They also called for the resignation of her cabinet members and the top brass
of the AFP and PNP.
About noontime of the same day, President Arroyo issued Proclamation No. 427 declaring a state of
rebellion, followed by General Order No. 4 directing the AFP and PNP to take all necessary measures to
suppress the rebellion then taking place in Makati City. She then called the soldiers to surrender their
weapons at five oclock in the afternoon of that same day.
In order to avoid a bloody confrontation, the government sent negotiators to dialogue with the soldiers.
The aim was to persuade them to peacefully return to the fold of the law. After several hours of
negotiation, the government panel succeeded in convincing them to lay down their arms and defuse the
explosives placed around the premises of the Oakwood Apartments. Eventually, they returned to their
barracks.
A total of 321 soldiers, including petitioners herein, surrendered to the authorities.
The National Bureau of Investigation (NBI) investigated the incident and recommended that the military
personnel involved be charged with coup detat defined and penalized under Article 134-A of the Revised
Penal Code, as amended. On July 31, 2003, the Chief State Prosecutor of the Department of Justice (DOJ)
recommended the filing of the corresponding Information against them.
Meanwhile, on August 2, 2003, pursuant to Article 70 of the Articles of War, respondent General Narciso
Abaya, then AFP Chief of Staff, ordered the arrest and detention of the soldiers involved in the Oakwood
incident and directed the AFP to conduct its own separate investigation.
On August 5, 2003, the DOJ filed with the Regional Trial Court (RTC), Makati City an Information for coup
detat 2against those soldiers, docketed as Criminal Case No. 03-2784 and eventually raffled off to Branch
61, presided by Judge Romeo F. Barza. 3 Subsequently, this case was consolidated with Criminal Case No.
03-2678, involving the other accused, pending before Branch 148 of the RTC, Makati City, presided by
Judge Oscar B. Pimentel.
On August 13, 2003, the RTC directed the DOJ to conduct a reinvestigation of Criminal Case No. 03-2784.
On the same date, respondent Chief of Staff issued Letter Order No. 625 creating a Pre-Trial Investigation
Panel tasked to determine the propriety of filing with the military tribunal charges for violations of the
Articles of War under Commonwealth Act No. 408, 4 as amended, against the same military personnel.
Specifically, the charges are: (a) violation of Article 63 for disrespect toward the President, the Secretary
of National Defense, etc., (b) violation of Article 64 for disrespect toward a superior officer, (c) violation
of Article 67 for mutiny or sedition, (d) violation of Article 96 for conduct unbecoming an officer and a
gentleman, and (e) violation of Article 97 for conduct prejudicial to good order and military discipline.
Of the original 321 accused in Criminal Case No. 03-2784, only 243 (including petitioners herein) filed
with the RTC, Branch 148 an Omnibus Motion praying that the said trial court assume jurisdiction over all
the charges filed with the military tribunal. They invoked Republic Act (R.A.) No. 7055. 5
On September 15, 2003, petitioners filed with the Judge Advocate Generals Office (JAGO) a motion
praying for the suspension of its proceedings until after the RTC shall have resolved their motion to
assume jurisdiction.
On October 29, 2003, the Pre-Trial Investigation Panel submitted its Initial Report to the AFP Chief of
Staff recommending that the military personnel involved in the Oakwood incident be charged before a
general court martial with violations of Articles 63, 64, 67, 96, and 97 of the Articles of War.
Meanwhile, on November 11, 2003, the DOJ, after conducting a reinvestigation, found probable cause
against only 31 (petitioners included) of the 321 accused in Criminal Case No. 03-2784. Accordingly, the
prosecution filed with the RTC an Amended Information. 6
In an Order dated November 14, 2003, the RTC admitted the Amended Information and dropped the
charge ofcoup detat against the 290 accused.
Subsequently, or on December 12, 2003, the Pre-Trial Investigation Panel submitted its Final Pre-Trial
Investigation Report 7 to the JAGO, recommending that, following the "doctrine of absorption," those
charged withcoup detat before the RTCshould not be charged before the military tribunal for violation
of the Articles of War.
For its part, the RTC, on February 11, 2004, issued an Order 8 stating that "all charges before the court
martial against the accusedare hereby declared not service-connected, but rather absorbed and in
furtherance of the alleged crime of coup detat." The trial court then proceeded to hear petitioners
applications for bail.
In the meantime, Colonel Julius A. Magno, in his capacity as officer-in-charge of the JAGO, reviewed the
findings of the Pre-Trial Investigation Panel. He recommended that 29 of the officers involved in the
Oakwood incident, including petitioners, be prosecuted before a general court martial for violation of
Article 96 (conduct unbecoming an officer and a gentleman) of the Articles of War.
On June 17, 2004, Colonel Magnos recommendation was approved by the AFP top brass. The AFP Judge
Advocate General then directed petitioners to submit their answer to the charge. Instead of complying,
they filed with this Court the instant Petition for Prohibition praying that respondents be ordered to
desist from charging them with violation of Article 96 of the Articles of War in relation to the Oakwood
incident. 9
Petitioners maintain that since the RTC has made a determination in its Order of February 11, 2004 that
the offense for violation of Article 96 (conduct unbecoming an officer and a gentleman) of the Articles of
War is not service-connected, but is absorbed in the crime of coup detat, the military tribunal cannot
compel them to submit to its jurisdiction.
The Solicitor General, representing the respondents, counters that R.A. No. 7055 specifies which
offenses covered by the Articles of War areservice-connected. These are violations of Articles 54 to 70,
72 to 92, and 95 to 97. The law provides that violations of these Articles are properly cognizable by the
court martial. As the charge against petitioners is violation of Article 96 which, under R.A. No. 7055 is a
service-connected offense, then it falls under the jurisdiction of the court martial.
Subsequently, petitioners filed with this Court a Supplemental Petition raising the additional issue that
the offense charged before the General Court Martial has prescribed. Petitioners alleged therein that
during the pendency of their original petition, respondents proceeded with the Pre-Trial Investigation for
purposes of charging them with violation of Article 96 (conduct unbecoming an officer and a gentleman)
of the Articles of War; that the Pre-Trial Investigation Panel then referred the case to the General Court
Martial; that "almost two years since the Oakwood incident on July 27, 2003, only petitioner Lt. (SG)
Antonio Trillanes was arraigned, and this was done under questionable circumstances;" 10 that in the
hearing of July 26, 2005, herein petitioners moved for the dismissal of the case on the ground that they
were not arraigned within the prescribed period of two (2) years from the date of the commission of the
alleged offense, in violation of Article 38 of the Articles of War; 11 that "the offense charged prescribed
on July 25, 2005;" 12 that the General Court Martial ruled, however, that "the prescriptive period shall
end only at 12:00 midnight of July 26, 2005;" 13 that "(a)s midnight of July 26, 2005 was approaching and
it was becoming apparent that the accused could not be arraigned, the prosecution suddenly changed its
position and asserted that 23 of the accused have already been arraigned;" 14 and that petitioners moved
for a reconsideration but it was denied by the general court martial in its Order dated September 14,
2005. 15
In his Comment, the Solicitor General prays that the Supplemental Petition be denied for lack of merit.
He alleges that "contrary to petitioners pretensions, all the accused were duly arraigned on July 13 and
18, 2005." 16 The "(r)ecords show that in the hearing on July 13, 2005, all the 29 accused were present"
and, "(o)n that day, Military Prosecutor Captain Karen Ong Jags read the Charges and Specifications from
the Charge Sheet in open court (pp. 64, TSN, July 13, 2005)." 17
The sole question for our resolution is whether the petitioners are entitled to the writ of prohibition.
There is no dispute that petitioners, being officers of the AFP, are subject to military law. Pursuant to
Article 1 (a) of Commonwealth Act No. 408, as amended, otherwise known as the Articles of War, the
term "officer" is "construed to refer to a commissioned officer." Article 2 provides:
Art. 2. Persons Subject to Military Law. The following persons are subject to these articles and shall be
understood as included in the term "any person subject to military law" or "persons subject to military
law," whenever used in these articles:
(a) All officers and soldiers in the active service of the Armed Forces of the Philippines or of the
Philippine Constabulary, all members of the reserve force, from the dates of their call to active duty and
while on such active duty; all trainees undergoing military instructions; and all other persons lawfully
called, drafted, or ordered into, or to duty or for training in the said service, from the dates they are
required by the terms of the call, draft, or order to obey the same.
Upon the other hand, Section 1 of R.A. No. 7055 reads:
SEC. 1. Members of the Armed Forces of the Philippines and other persons subject to military law,
including members of the Citizens Armed Forces Geographical Units, who commit crimes or offenses
penalized under the Revised Penal Code, other special penal laws, or local government ordinances,
regardless of whether or not civilians are co-accused, victims, or offended parties, which may be natural
or juridical persons, shall be tried by the proper civil court, except when the offense, as determined
before arraignment by the civil court, is service-connected, in which case, the offense shall be tried by
court-martial, Provided, That the President of the Philippines may, in the interest of justice, order or
direct at any time before arraignment that any such crimes or offenses be tried by the proper civil courts.
As used in this Section, service-connected crimes or offenses shall be limited to those defined in Articles
54 to 70, Articles 72 to 92, and Articles 95 to 97 of Commonwealth Act No. 408, as amended.
In imposing the penalty for such crimes or offenses, the court-martial may take into consideration the
penalty prescribed therefor in the Revised Penal Code, other special laws, or local government
ordinances.
Section 1 of R.A. No. 7055, quoted above, is clear and unambiguous. First, it lays down the general rule
that members of the AFP and other persons subject to military law, including members of the Citizens
Armed Forces Geographical Units, who commit crimes or offenses penalized under the Revised Penal
Code (like coup detat), other special penal laws, or local ordinances shall be tried by the proper civil
court. Next, it provides the exception to the general rule, i.e., where the civil court, before arraignment,
has determined the offense to be service-connected, then the offending soldier shall be tried by a court
martial. Lastly, the law states an exception to the exception, i.e., where the President of the Philippines,
in the interest of justice, directs before arraignment that any such crimes or offenses be tried by the
proper civil court.
The second paragraph of the same provision further identifies the "service-connected crimes or the alleged crime of coup detat," hence, triable by said court (RTC). The RTC, in making such declaration,
offenses" as "limited to those defined in Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97" of the practically amended the law which expressly vests in the court martial the jurisdiction over "service-
Articles of War. Violations of these specified Articles are triable by court martial. This delineates the connected crimes or offenses." What the law has conferred the court should not take away. It is only the
jurisdiction between the civil courts and the court martial over crimes or offenses committed by military Constitution or the law that bestows jurisdiction on the court, tribunal, body or officer over the subject
personnel. matter or nature of an action which can do so. 22 And it is only through a constitutional amendment or
legislative enactment that such act can be done. The first and fundamental duty of the courts is merely
to apply the law "as they find it, not as they like it to be." 23 Evidently, such declaration by the RTC
Such delineation of jurisdiction by R.A. No. 7055 is necessary to preserve the peculiar nature of military
constitutes grave abuse of discretion tantamount to lack or excess of jurisdiction and is, therefore, void.
justice system over military personnel charged with service-connected offenses. The military justice
system is disciplinary in nature, aimed at achieving the highest form of discipline in order to ensure the
highest degree of military efficiency. 18 Military law is established not merely to enforce discipline in In Navales v. Abaya., 24 this Court, through Mr. Justice Romeo J. Callejo, Sr., held:
times of war, but also to preserve the tranquility and security of the State in time of peace; for there is
nothing more dangerous to the public peace and safety than a licentious and undisciplined military
We agree with the respondents that the sweeping declaration made by the RTC (Branch 148) in the
body. 19 The administration of military justice has been universally practiced. Since time immemorial, all
dispositive portion of its Order dated February 11, 2004 that all charges before the court-martial against
the armies in almost all countries of the world look upon the power of military law and its administration
the accused were not service-connected, but absorbed and in furtherance of the crime of coup detat,
as the most effective means of enforcing discipline. For this reason, the court martial has become
cannot be given effect. x x x, such declaration was made without or in excess of jurisdiction; hence, a
invariably an indispensable part of any organized armed forces, it being the most potent agency in
nullity.
enforcing discipline both in peace and in war. 20

The second paragraph of the above provision (referring to Section 1 of R.A. No. 7055) explicitly specifies
Here, petitioners are charged for violation of Article 96 (conduct unbecoming an officer and a
what are considered "service-connected crimes or offenses" under Commonwealth Act No. 408, as
gentleman) of the Articles of War before the court martial, thus:
amended, also known as the Articles of War, to wit:

All persons subject to military law, did on or about 27 July 2003 at Oakwood Hotel, Makati City, Metro
Articles 54 to 70:
Manila, willfully, unlawfully and feloniously violate their solemn oath as officers to defend the
Constitution, the law and the duly-constituted authorities and abused their constitutional duty to
protect the people and the State by, among others, attempting to oust the incumbent duly-elected and Art. 54. Fraudulent Enlistment.
legitimate President by force and violence, seriously disturbing the peace and tranquility of the people
and the nation they are sworn to protect,thereby causing dishonor and disrespect to the military Art. 55. Officer Making Unlawful Enlistment.
profession, conduct unbecoming an officer and a gentleman, in violation of AW 96 of the Articles of
War.
Art. 56. False Muster.

CONTRARY TO LAW. (Underscoring ours)

Art. 57. False Returns.

Article 96 of the Articles of War 21 provides:

Art. 58. Certain Acts to Constitute Desertion.

ART. 96. Conduct Unbecoming an Officer and Gentleman. Any officer, member of the Nurse Corps,
cadet, flying cadet, or probationary second lieutenant, who is convicted of conduct unbecoming an Art. 59. Desertion.
officer and a gentleman shall be dismissed from the service. (Underscoring ours)
Art. 60. Advising or Aiding Another to Desert.
We hold that the offense for violation of Article 96 of the Articles of War is service-connected. This is
expressly provided in Section 1 (second paragraph) of R.A. No. 7055. It bears stressing that the charge Art. 61. Entertaining a Deserter.
against the petitioners concerns the alleged violation of their solemn oath as officers to defend the
Constitution and the duly-constituted authorities.Such violation allegedly caused dishonor and
disrespect to the military profession. In short, the charge has a bearing on Art. 62. Absence Without Leave.
their professional conduct or behavior as military officers. Equally indicative of the "service-connected"
nature of the offense is the penalty prescribed for the same dismissal from the service imposable Art. 63. Disrespect Toward the President, Vice-President,
only by the military court.Such penalty is purely disciplinary in character, evidently intended to cleanse
the military profession of misfits and to preserve the stringent standard of military discipline.
Congress of the Philippines, or Secretary of National

Obviously, there is no merit in petitioners argument that they can no longer be charged before the court
Defense.
martial for violation of Article 96 of the Articles of War because the same has been declared by the RTC
in its Order of February 11, 2004 as "not service-connected, but rather absorbed and in furtherance of
Art. 64. Disrespect Toward Superior Officer.
Art. 65. Assaulting or Willfully Disobeying Superior Officer.
Art. 66. Insubordinate Conduct Toward Non-Commissioned Officer.
Art. 67. Mutiny or Sedition.
Art. 68. Failure to Suppress Mutiny or Sedition.
Art. 69. Quarrels; Frays; Disorders.
Art. 70. Arrest or Confinement.
Articles 72 to 92:
Art. 72. Refusal to Receive and Keep Prisoners.
Art. 73. Report of Prisoners Received.
Art. 74. Releasing Prisoner Without Authority.
Art. 75. Delivery of Offenders to Civil Authorities.
Art. 76. Misbehavior Before the Enemy.
Art. 77. Subordinates Compelling Commander to Surrender.
Art. 78. Improper Use of Countersign.
Art. 79. Forcing a Safeguard.
Art. 80. Captured Property to be Secured for Public Service.
Art. 81. Dealing in Captured or Abandoned Property.
Art. 82. Relieving, Corresponding With, or Aiding the Enemy.
Art. 83. Spies.
Art. 84. Military Property.Willful or Negligent Loss, Damage
or wrongful Disposition.
Art. 85. Waste or Unlawful Disposition of Military Property
Issued to Soldiers.
Art. 86. Drunk on Duty.
Art. 87. Misbehavior of Sentinel.
Art. 88. Personal Interest in Sale of Provisions.
Art. 88-A. Unlawful Influencing Action of Court.
Art. 89. Intimidation of Persons Bringing Provisions.
Art. 90. Good Order to be Maintained and Wrongs Redressed.
Art. 91. Provoking Speeches or Gestures.
Art. 92. Dueling.
Articles 95 to 97:
Art. 95. Frauds Against the Government.
Art. 96. Conduct Unbecoming an Officer and Gentleman.
Art. 97. General Article.
Further, Section 1 of Rep. Act No. 7055 vests on the military courts the jurisdiction over the foregoing
offenses. x x x.
It is clear from the foregoing that Rep. Act No. 7055 did not divest the military courts of jurisdiction to try
cases involving violations of Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97 of the Articles of
War as these are considered "service-connected crimes or offenses." In fact, it mandates that these shall
be tried by the court-martial.
Moreover, the observation made by Mr. Justice Antonio T. Carpio during the deliberation of this case is
worth quoting, thus:
The trial court aggravated its error when it justified its ruling by holding that the charge of Conduct
Unbecoming an Officer and a Gentleman is absorbed and in furtherance to the alleged crime of coup
detat. Firstly, the doctrine of absorption of crimes is peculiar to criminal law and generally applies to
crimes punished by the same statute,25 unlike here where different statutes are involved. Secondly, the
doctrine applies only if the trial court has jurisdiction over both offenses. Here, Section 1 of R.A. 7055
deprives civil courts of jurisdiction over service-connected offenses, including Article 96 of the Articles of
War. Thus, the doctrine of absorption of crimes is not applicable to this case.
Military law is sui generis (Calley v. Callaway, 519 F.2d 184 [1975]), applicable only to military personnel
because the military constitutes an armed organization requiring a system of discipline separate from
that of civilians (see Orloff v. Willoughby, 345 U.S. 83 [1953]). Military personnel carry high-powered
arms and other lethal weapons not allowed to civilians. History, experience, and the nature of a military
organization dictate that military personnel must be subjected to a separate disciplinary system not
applicable to unarmed civilians or unarmed government personnel.

A civilian government employee reassigned to another place by his superior may question his
reassignment by asking a temporary restraining order or injunction from a civil court. However, a soldier
cannot go to a civil court and ask for a restraining or injunction if his military commander reassigns him
to another area of military operations. If this is allowed, military discipline will collapse.

xxx

This Court has recognized that courts-martial are instrumentalities of the Executive to enable the
President, as Commander-in-Chief, to effectively command, control, and discipline the armed forces (see
Ruffy v. Chief of Staff, 75 Phil. 875 [1946], citing Winthrops Military Law and Precedents, 2nd edition, p.
49). In short, courts-martial form part of the disciplinary system that ensures the Presidents control, and
thus civilian supremacy, over the military. At the apex of this disciplinary system is the President who
exercises review powers over decisions of courts-martial (citing Article 50 of the Articles of War; quoted
provisions omitted).

xxx

While the Court had intervened before in courts-martial or similar proceedings, it did so sparingly and
only to release a military personnel illegally detained (Ognir v. Director of Prisons, 80 Phil. 401 [1948] or
to correct objectionable procedures (Yamashita v. Styer, 75 Phil. 563 [1945]). The Court has never
suppressed court-martial proceedings on the ground that the offense charged is absorbed and in
furtherance of another criminal charge pending with the civil courts. The Court may now do so only if
the offense charged is not one of the service-connected offenses specified in Section 1 of RA 7055. Such
is not the situation in the present case.

With respect to the issue of prescription raised by petitioners in their Supplemental Petition, suffice it to
say that we cannot entertain the same. The contending parties are at loggerheads as to (a) who among
the petitioners were actually arraigned, and (b) the dates of their arraignment. These are matters
involving questions of fact, not within our power of review, as we are not a trier of facts. In a petition for
prohibition, such as the one at bar, only legal issues affecting the jurisdiction of the tribunal, board or
officer involved may be resolved on the basis of the undisputed facts. 26

Clearly, the instant petition for prohibition must fail. The office of prohibition is to prevent the unlawful
and oppressive exercise of authority and is directed against proceedings that are done without or in
excess of jurisdiction, or with grave abuse of discretion, there being no appeal or other plain, speedy,
and adequate remedy in the ordinary course of law. 27 Stated differently, prohibition is the remedy to
prevent inferior courts, corporations, boards, or persons from usurping or exercising a jurisdiction or
power with which they have not been vested by law. 28

In fine, this Court holds that herein respondents have the authority in convening a court martial and in
charging petitioners with violation of Article 96 of the Articles of War.

WHEREFORE, the instant petition for prohibition is DISMISSED.

SO ORDERED.
EN BANC
[G.R. No. 153888. July 9, 2003]
ISLAMIC DAWAH COUNCIL OF THE PHILIPPINES, INC., herein represented by PROF. ABDULRAFIH H.
SAYEDY, petitioner, vs. OFFICE OF THE EXECUTIVE SECRETARY of the Office of the President
of the Philippines, herein represented by HON. ALBERTO G. ROMULO, Executive Secretary,
and the OFFICE ON MUSLIM AFFAIRS, herein represented by its Executive Director, HABIB
MUJAHAB HASHIM, respondents.
DECISION
CORONA, J.:
Before us is a petition for prohibition filed by petitioner Islamic Dawah Council of the Philippines,
Inc. (IDCP) praying for the declaration of nullity of Executive Order (EO) 46, s. 2001 and the prohibition of
herein respondents Office of the Executive Secretary and Office of Muslim Affairs (OMA) from
implementing the subject EO.
Petitioner IDCP, a corporation that operates under Department of Social Welfare and
Development License No. SB-01-085, is a non-governmental organization that extends voluntary services
to the Filipino people, especially to Muslim communities. It claims to be a federation of national Islamic
organizations and an active member of international organizations such as the Regional Islamic Dawah
Council of Southeast Asia and the Pacific (RISEAP)[1] and The World Assembly of Muslim Youth. The
RISEAP accredited petitioner to issue halal[2] certifications in the Philippines. Thus, among the functions
petitioner carries out is to conduct seminars, orient manufacturers on halal food and issue halal
certifications to qualified products and manufacturers.
Petitioner alleges that, on account of the actual need to certify food products as halal and also
due to halal food producers request, petitioner formulated in 1995 internal rules and procedures based
on the Quran[3] and the Sunnah[4] for the analysis of food, inspection thereof and issuance of halal
certifications. In that same year, petitioner began to issue, for a fee, certifications to qualified products
and food manufacturers. Petitioner even adopted for use on its halal certificates a distinct sign or logo
registered in the Philippine Patent Office under Patent No. 4-2000-03664.
On October 26, 2001, respondent Office of the Executive Secretary issued EO 46[5] creating the
Philippine Halal Certification Scheme and designating respondent OMA to oversee its
implementation. Under the EO, respondent OMA has the exclusive authority to issue halal certificates
and perform other related regulatory activities.
On May 8, 2002, a news article entitled OMA Warns NGOs Issuing Illegal Halal Certification was
published in the Manila Bulletin, a newspaper of general circulation. In said article, OMA warned Muslim
consumers to buy only products with its official halal certification since those without said certification
had not been subjected to careful analysis and therefore could contain pork or its derivatives.
Respondent OMA also sent letters to food manufacturers asking them to secure the halal certification
only from OMA lest they violate EO 46 and RA 4109.[6] As a result, petitioner lost revenues after food
manufacturers stopped securing certifications from it.
Hence, this petition for prohibition.
Petitioner contends that the subject EO violates the constitutional provision on the separation of
Church and State.[7] It is unconstitutional for the government to formulate policies and guidelines on the
halal certification scheme because said scheme is a function only religious organizations, entity or
scholars can lawfully and validly perform for the Muslims.According to petitioner, a food product
becomes halal only after the performance of Islamic religious ritual and prayer. Thus, only practicing
Muslims are qualified to slaughter animals for food. A government agency like herein respondent OMA
cannot therefore perform a religious function like certifying qualified food products as halal.
Petitioner also maintains that the respondents violated Section 10, Article III of the 1987
Constitution which provides that (n)o law impairing the obligation of contracts, shall be passed. After the
subject EO was implemented, food manufacturers with existing contracts with petitioner ceased to
obtain certifications from the latter.
Moreover, petitioner argues that the subject EO violates Sections 15 and 16 of Article XIII of the
1987 Constitution which respectively provide:
ROLE AND RIGHTS OF PEOPLES ORGANIZATIONS
Sec. 15. The State shall respect the role of independent peoples organizations to enable the people to
pursue and protect, within the democratic framework, their legitimate and collective interests and
aspirations through peaceful and lawful means.
Peoples organizations are bona fide associations of citizens with demonstrated capacity to promote the
public interest and with identifiable leadership, membership, and structure.
Sec. 16. The rights of the people and their organizations to effective and reasonable participation at all
levels of social, political, and economic decision-making shall not be abridged. The State shall, by law,
facilitate, the establishment of adequate consultation mechanisms.
According to petitioner, the subject EO was issued with utter haste and without even consulting
Muslim peoples organizations like petitioner before it became effective.
We grant the petition.
OMA was created in 1981 through Executive Order No. 697 (EO 697) to ensure the integration of
Muslim Filipinos into the mainstream of Filipino society with due regard to their beliefs, customs,
traditions, and institutions.[8] OMA deals with the societal, legal, political and economic concerns of the
Muslim community as a national cultural community and not as a religious group. Thus, bearing in mind
the constitutional barrier between the Church and State, the latter must make sure that OMA does not
intrude into purely religious matters lest it violate the non-establishment clause and the free exercise of
religion provision found in Article III, Section 5 of the 1987 Constitution.[9]
Freedom of religion was accorded preferred status by the framers of our fundamental law. And
this Court has consistently affirmed this preferred status, well aware that it is "designed to protect the
broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to profess
his beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the
common good.[10]
Without doubt, classifying a food product as halal is a religious function because the standards
used are drawn from the Quran and Islamic beliefs. By giving OMA the exclusive power to classify food
products as halal, EO 46 encroached on the religious freedom of Muslim organizations like herein
petitioner to interpret for Filipino Muslims what food products are fit for Muslim consumption. Also, by
arrogating to itself the task of issuing halal certifications, the State has in effect forced Muslims to accept
its own interpretation of the Quran and Sunnah on halal food.
 To justify EO 46s intrusion into the subject religious activity, the Solicitor General argues that the
freedom of religion is subservient to the police power of the State. By delegating to OMA the authority
to issue halal certifications, the government allegedly seeks to protect and promote the muslim Filipinos
right to health, and to instill health consciousness in them.
We disagree.
Only the prevention of an immediate and grave danger to the security and welfare of the
community can justify the infringement of religious freedom.[11] If the government fails to show the
seriousness and immediacy of the threat, State intrusion is constitutionally unacceptable. In a society
with a democratic framework like ours, the State must minimize its interference with the affairs of its
citizens and instead allow them to exercise reasonable freedom of personal and religious activity.
In the case at bar, we find no compelling justification for the government to deprive Muslim
organizations, like herein petitioner, of their religious right to classify a product as halal, even on the
premise that the health of Muslim Filipinos can be effectively protected by assigning to OMA the
exclusive power to issue halal certifications. The protection and promotion of the Muslim Filipinos right
to health are already provided for in existing laws and ministered to by government agencies charged
with ensuring that food products released in the market are fit for human consumption, properly labeled
and safe. Unlike EO 46, these laws do not encroach on the religious freedom of Muslims.
right to health is protected. The halal certifications issued by petitioner and similar organizations come
forward as the official religious approval of a food product fit for Muslim consumption.
We do not share respondents apprehension that the absence of a central administrative body to
regulate halal certifications might give rise to schemers who, for profit, will issue certifications for
products that are not actually halal. Aside from the fact that Muslim consumers can actually verify
through the labels whether a product contains non-food substances, we believe that they are discerning
enough to know who the reliable and competent certifying organizations in their community are. Before
purchasing a product, they can easily avert this perceived evil by a diligent inquiry on the reliability of the
concerned certifying organization.
WHEREFORE, the petition is GRANTED. Executive Order 46, s. 2001, is hereby declared NULL AND
VOID. Consequently, respondents are prohibited from enforcing the same.
SO ORDERED.

Section 48(4) of the Administrative Code of 1987 gives to the National Meat Inspection
Commission (NMIC) of the Department of Agriculture (DOA) the power to inspect slaughtered animals
intended for human consumption to ensure the safety of the meat released in the market. Another law,
RA 7394, otherwise known as The Consumer Act of 1992, gives to certain government departments the
duty to protect the interests of the consumer, promote his general welfare and to establish standards of
conduct for business and industry.[12] To this end, a food product, before its distribution to the market, is
required to secure the Philippine Standard Certification Mark after the concerned department inspects
and certifies its compliance with quality and safety standards.[13]

One such government agency designated by RA 7394 is the Bureau of Food and Drugs (BFD) of the
Department of Health (DOH). Under Article 22 of said law, BFD has the duty to promulgate and enforce
rules and regulations fixing and establishing a reasonable definition and standard of identity, a standard
of quality and a standard of fill of containers for food. The BFD also ensures that food products released
in the market are not adulterated.[14]

Furthermore, under Article 48 of RA 7394, the Department of Trade and Industry (DTI) is tasked to
protect the consumer against deceptive, unfair and unconscionable sales acts or practices as defined in
Article 50.[15] DTI also enforces compulsory labeling and fair packaging to enable the consumer to obtain
accurate information as to the nature, quality and quantity of the contents of consumer products and to
facilitate his comparison of the value of such products.[16]

With these regulatory bodies given detailed functions on how to screen and check the quality and
safety of food products, the perceived danger against the health of Muslim and non-Muslim Filipinos
alike is totally avoided. Of great help are the provisions on labeling of food products (Articles 74 to
85)[17] of RA 7394. In fact, through these labeling provisions, the State ably informs the consuming public
of the contents of food products released in the market. Stiff sanctions are imposed on violators of said
labeling requirements.

Through the laws on food safety and quality, therefore, the State indirectly aids Muslim
consumers in differentiating food from non-food products. The NMIC guarantees that the meat sold in
the market has been thoroughly inspected and fit for consumption. Meanwhile, BFD ensures that food
products are properly categorized and have passed safety and quality standards. Then, through the
labeling provisions enforced by the DTI, Muslim consumers are adequately apprised of the products that
contain substances or ingredients that, according to their Islamic beliefs, are not fit for human
intake. These are the non-secular steps put in place by the State to ensure that the Muslim consumers
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 101083 July 30, 1993
JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and represented
by their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA, minor, represented by her
parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD and PATRISHA, all surnamed FLORES,
minors and represented by their parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor,
represented by her parents SIGRID and DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all
surnamed MISA, minors and represented by their parents GEORGE and MYRA MISA, BENJAMIN ALAN
V. PESIGAN, minor, represented by his parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO,
minor, represented by her parents JOSE and MARIA VIOLETA ALFARO, MARIA CONCEPCION T.
CASTRO, minor, represented by her parents FREDENIL and JANE CASTRO, JOHANNA DESAMPARADO,
minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T. NARVASA,
minor, represented by his parents GREGORIO II and CRISTINE CHARITY NARVASA, MA. MARGARITA,
JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all surnamed SAENZ, minors, represented by
their parents ROBERTO and AURORA SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and
DAVID IAN, all surnamed KING, minors, represented by their parents MARIO and HAYDEE KING,
DAVID, FRANCISCO and THERESE VICTORIA, all surnamed ENDRIGA, minors, represented by their
parents BALTAZAR and TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA, minors,
represented by their parents ANTONIO and MARICA ABAYA, MARILIN, MARIO, JR. and MARIETTE, all
surnamed CARDAMA, minors, represented by their parents MARIO and LINA CARDAMA, CLARISSA,
ANN MARIE, NAGEL, and IMEE LYN, all surnamed OPOSA, minors and represented by their parents
RICARDO and MARISSA OPOSA, PHILIP JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all surnamed
QUIPIT, minors, represented by their parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO,
CRISANTO, ANNA, DANIEL and FRANCISCO, all surnamed BIBAL, minors, represented by their parents
FRANCISCO, JR. and MILAGROS BIBAL, and THE PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of the Department of
Environment and Natural Resources, and THE HONORABLE ERIBERTO U. ROSARIO, Presiding Judge of
the RTC, Makati, Branch 66, respondents.
Oposa Law Office for petitioners.
The Solicitor General for respondents.
DAVIDE, JR., J.:
In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology
which the petitioners dramatically associate with the twin concepts of "inter-generational responsibility"
and "inter-generational justice." Specifically, it touches on the issue of whether the said petitioners have
a cause of action to "prevent the misappropriation or impairment" of Philippine rainforests and "arrest
the unabated hemorrhage of the country's vital life support systems and continued rape of Mother
Earth."
The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66 (Makati, Metro
Manila) of the Regional Trial Court (RTC), National Capital Judicial Region. The principal plaintiffs therein,
now the principal petitioners, are all minors duly represented and joined by their respective parents.
Impleaded as an additional plaintiff is the Philippine Ecological Network, Inc. (PENI), a domestic, non-
stock and non-profit corporation organized for the purpose of, inter alia, engaging in concerted action
geared for the protection of our environment and natural resources. The original defendant was the
Honorable Fulgencio S. Factoran, Jr., then Secretary of the Department of Environment and Natural
Resources (DENR). His substitution in this petition by the new Secretary, the Honorable Angel C. Alcala,
was subsequently ordered upon proper motion by the petitioners. 1 The complaint 2was instituted as a
taxpayers' class suit 3 and alleges that the plaintiffs "are all citizens of the Republic of the Philippines,
taxpayers, and entitled to the full benefit, use and enjoyment of the natural resource treasure that is the
country's virgin tropical forests." The same was filed for themselves and others who are equally
concerned about the preservation of said resource but are "so numerous that it is impracticable to bring
them all before the Court." The minors further asseverate that they "represent their generation as well
as generations yet unborn." 4 Consequently, it is prayed for that judgment be rendered:
. . . ordering defendant, his agents, representatives and other persons acting in his
behalf to
(1) Cancel all existing timber license agreements in the country;
(2) Cease and desist from receiving, accepting, processing, renewing or approving
new timber license agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable under the premises." 5
The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands has a
land area of thirty million (30,000,000) hectares and is endowed with rich, lush and verdant rainforests in
which varied, rare and unique species of flora and fauna may be found; these rainforests contain a
genetic, biological and chemical pool which is irreplaceable; they are also the habitat of indigenous
Philippine cultures which have existed, endured and flourished since time immemorial; scientific
evidence reveals that in order to maintain a balanced and healthful ecology, the country's land area
should be utilized on the basis of a ratio of fifty-four per cent (54%) for forest cover and forty-six per cent
(46%) for agricultural, residential, industrial, commercial and other uses; the distortion and disturbance
of this balance as a consequence of deforestation have resulted in a host of environmental tragedies,
such as (a) water shortages resulting from drying up of the water table, otherwise known as the
"aquifer," as well as of rivers, brooks and streams, (b) salinization of the water table as a result of the
intrusion therein of salt water, incontrovertible examples of which may be found in the island of Cebu
and the Municipality of Bacoor, Cavite, (c) massive erosion and the consequential loss of soil fertility and
agricultural productivity, with the volume of soil eroded estimated at one billion (1,000,000,000) cubic
meters per annum approximately the size of the entire island of Catanduanes, (d) the endangering
and extinction of the country's unique, rare and varied flora and fauna, (e) the disturbance and
dislocation of cultural communities, including the disappearance of the Filipino's indigenous cultures, (f)
the siltation of rivers and seabeds and consequential destruction of corals and other aquatic life leading
to a critical reduction in marine resource productivity, (g) recurrent spells of drought as is presently
experienced by the entire country, (h) increasing velocity of typhoon winds which result from the
absence of windbreakers, (i) the floodings of lowlands and agricultural plains arising from the absence of
the absorbent mechanism of forests, (j) the siltation and shortening of the lifespan of multi-billion peso
dams constructed and operated for the purpose of supplying water for domestic uses, irrigation and the
generation of electric power, and (k) the reduction of the earth's capacity to process carbon dioxide This act of defendant constitutes a misappropriation and/or impairment of the
gases which has led to perplexing and catastrophic climatic changes such as the phenomenon of global natural resource property he holds in trust for the benefit of plaintiff minors and
warming, otherwise known as the "greenhouse effect." succeeding generations.

Plaintiffs further assert that the adverse and detrimental consequences of continued and deforestation
are so capable of unquestionable demonstration that the same may be submitted as a matter of judicial
notice. This notwithstanding, they expressed their intention to present expert witnesses as well as
documentary, photographic and film evidence in the course of the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations.
15. Plaintiffs have a clear and constitutional right to a balanced and healthful
ecology and are entitled to protection by the State in its capacity as the parens
patriae.
16. Plaintiff have exhausted all administrative remedies with the defendant's
office. On March 2, 1990, plaintiffs served upon defendant a final demand to
cancel all logging permits in the country.
A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex
"B".

17. Defendant, however, fails and refuses to cancel the existing TLA's to the
8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million
continuing serious damage and extreme prejudice of plaintiffs.
hectares of rainforests constituting roughly 53% of the country's land mass.

18. The continued failure and refusal by defendant to cancel the TLA's is an act
9. Satellite images taken in 1987 reveal that there remained no more than 1.2
violative of the rights of plaintiffs, especially plaintiff minors who may be left with
million hectares of said rainforests or four per cent (4.0%) of the country's land
a country that is desertified (sic), bare, barren and devoid of the wonderful flora,
area.
fauna and indigenous cultures which the Philippines had been abundantly blessed
with.
10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth
rainforests are left, barely 2.8% of the entire land mass of the Philippine
19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary
archipelago and about 3.0 million hectares of immature and uneconomical
to the public policy enunciated in the Philippine Environmental Policy which, in
secondary growth forests.
pertinent part, states that it is the policy of the State

11. Public records reveal that the defendant's, predecessors have granted timber
(a) to create, develop, maintain and improve conditions under which man and
license agreements ('TLA's') to various corporations to cut the aggregate area of
nature can thrive in productive and enjoyable harmony with each other;
3.89 million hectares for commercial logging purposes.

(b) to fulfill the social, economic and other requirements of present and future
A copy of the TLA holders and the corresponding areas covered is hereto attached
generations of Filipinos and;
as Annex "A".

(c) to ensure the attainment of an environmental quality that is conductive to a life

12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or
of dignity and well-being. (P.D. 1151, 6 June 1977)
25 hectares per hour nighttime, Saturdays, Sundays and holidays included
the Philippines will be bereft of forest resources after the end of this ensuing
decade, if not earlier. 20. Furthermore, defendant's continued refusal to cancel the aforementioned
TLA's is contradictory to the Constitutional policy of the State to
13. The adverse effects, disastrous consequences, serious injury and irreparable
damage of this continued trend of deforestation to the plaintiff minor's generation a. effect "a more equitable distribution of opportunities, income and wealth" and
and to generations yet unborn are evident and incontrovertible. As a matter of "make full and efficient use of natural resources (sic)." (Section 1, Article XII of the
fact, the environmental damages enumerated in paragraph 6 hereof are already Constitution);
being felt, experienced and suffered by the generation of plaintiff adults.
b. "protect the nation's marine wealth." (Section 2, ibid);
14. The continued allowance by defendant of TLA holders to cut and deforest the
remaining forest stands will work great damage and irreparable injury to plaintiffs
c. "conserve and promote the nation's cultural heritage and resources (sic)"
especially plaintiff minors and their successors who may never see, use,
(Section 14, Article XIV,id.);
benefit from and enjoy this rare and unique natural resource treasure.
 d. "protect and advance the right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of nature." (Section 16, Article
II, id.)
21. Finally, defendant's act is contrary to the highest law of humankind the
natural law and violative of plaintiffs' right to self-preservation and
perpetuation.
22. There is no other plain, speedy and adequate remedy in law other than the
instant action to arrest the unabated hemorrhage of the country's vital life support
systems and continued rape of Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the complaint
based on two (2) grounds, namely: (1) the plaintiffs have no cause of action against him and (2) the issue
raised by the plaintiffs is a political question which properly pertains to the legislative or executive
branches of Government. In their 12 July 1990 Opposition to the Motion, the petitioners maintain that
(1) the complaint shows a clear and unmistakable cause of action, (2) the motion is dilatory and (3) the
action presents a justiciable question as it involves the defendant's abuse of discretion.
On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to dismiss. 7 In
the said order, not only was the defendant's claim that the complaint states no cause of action against
him and that it raises a political question sustained, the respondent Judge further ruled that the
granting of the relief prayed for would result in the impairment of contracts which is prohibited by the
fundamental law of the land.
Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of
Court and ask this Court to rescind and set aside the dismissal order on the ground that the respondent
Judge gravely abused his discretion in dismissing the action. Again, the parents of the plaintiffs-minors
not only represent their children, but have also joined the latter in this case. 8
On 14 May 1992, We resolved to give due course to the petition and required the parties to submit their
respective Memoranda after the Office of the Solicitor General (OSG) filed a Comment in behalf of the
respondents and the petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and unmistakably states a cause of action as it contains
sufficient allegations concerning their right to a sound environment based on Articles 19, 20 and 21 of
the Civil Code (Human Relations), Section 4 of Executive Order (E.O.) No. 192 creating the DENR, Section
3 of Presidential Decree (P.D.) No. 1151 (Philippine Environmental Policy), Section 16, Article II of the
1987 Constitution recognizing the right of the people to a balanced and healthful ecology, the concept of
generational genocide in Criminal Law and the concept of man's inalienable right to self-preservation
and self-perpetuation embodied in natural law. Petitioners likewise rely on the respondent's correlative
obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a healthful environment.
It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in
granting Timber License Agreements (TLAs) to cover more areas for logging than what is available
involves a judicial question.
Anent the invocation by the respondent Judge of the Constitution's non-impairment clause, petitioners
maintain that the same does not apply in this case because TLAs are not contracts. They likewise submit
that even if TLAs may be considered protected by the said clause, it is well settled that they may still be
revoked by the State when the public interest so requires.
On the other hand, the respondents aver that the petitioners failed to allege in their complaint a specific
legal right violated by the respondent Secretary for which any relief is provided by law. They see nothing
in the complaint but vague and nebulous allegations concerning an "environmental right" which
supposedly entitles the petitioners to the "protection by the state in its capacity as parens patriae." Such
allegations, according to them, do not reveal a valid cause of action. They then reiterate the theory that
the question of whether logging should be permitted in the country is a political question which should
be properly addressed to the executive or legislative branches of Government. They therefore assert
that the petitioners' resources is not to file an action to court, but to lobby before Congress for the
passage of a bill that would ban logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done by
the State without due process of law. Once issued, a TLA remains effective for a certain period of time
usually for twenty-five (25) years. During its effectivity, the same can neither be revised nor cancelled
unless the holder has been found, after due notice and hearing, to have violated the terms of the
agreement or other forestry laws and regulations. Petitioners' proposition to have all the TLAs
indiscriminately cancelled without the requisite hearing would be violative of the requirements of due
process.
Before going any further, We must first focus on some procedural matters. Petitioners instituted Civil
Case No. 90-777 as a class suit. The original defendant and the present respondents did not take issue
with this matter. Nevertheless, We hereby rule that the said civil case is indeed a class suit. The subject
matter of the complaint is of common and general interest not just to several, but to all citizens of the
Philippines. Consequently, since the parties are so numerous, it, becomes impracticable, if not totally
impossible, to bring all of them before the court. We likewise declare that the plaintiffs therein are
numerous and representative enough to ensure the full protection of all concerned interests. Hence, all
the requisites for the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules of Court are
present both in the said civil case and in the instant petition, the latter being but an incident to the
former.
This case, however, has a special and novel element. Petitioners minors assert that they represent their
generation as well as generations yet unborn. We find no difficulty in ruling that they can, for
themselves, for others of their generation and for the succeeding generations, file a class suit. Their
personality to sue in behalf of the succeeding generations can only be based on the concept of
intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned.
Such a right, as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its entirety. 9 Such rhythm and
harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal
and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and
other natural resources to the end that their exploration, development and utilization be equitably
accessible to the present as well as future generations. 10 Needless to say, every generation has a
responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and
healthful ecology. Put a little differently, the minors' assertion of their right to a sound environment
constitutes, at the same time, the performance of their obligation to ensure the protection of that right
for the generations to come.
The locus standi of the petitioners having thus been addressed, We shall now proceed to the merits of
the petition.
After a careful perusal of the complaint in question and a meticulous consideration and evaluation of the
issues raised and arguments adduced by the parties, We do not hesitate to find for the petitioners and
rule against the respondent Judge's challenged order for having been issued with grave abuse of
discretion amounting to lack of jurisdiction. The pertinent portions of the said order reads as follows:
 xxx xxx xxx
After a careful and circumspect evaluation of the Complaint, the Court cannot help
but agree with the defendant. For although we believe that plaintiffs have but the
noblest of all intentions, it (sic) fell short of alleging, with sufficient definiteness, a
specific legal right they are seeking to enforce and protect, or a specific legal
wrong they are seeking to prevent and redress (Sec. 1, Rule 2, RRC). Furthermore,
the Court notes that the Complaint is replete with vague assumptions and vague
conclusions based on unverified data. In fine, plaintiffs fail to state a cause of
action in its Complaint against the herein defendant.
Furthermore, the Court firmly believes that the matter before it, being impressed
with political color and involving a matter of public policy, may not be taken
cognizance of by this Court without doing violence to the sacred principle of
"Separation of Powers" of the three (3) co-equal branches of the Government.
The Court is likewise of the impression that it cannot, no matter how we stretch
our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all
existing timber license agreements in the country and to cease and desist from
receiving, accepting, processing, renewing or approving new timber license
agreements. For to do otherwise would amount to "impairment of contracts"
abhored (sic) by the fundamental law. 11
We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient
definiteness a specific legal right involved or a specific legal wrong committed, and that the complaint is
replete with vague assumptions and conclusions based on unverified data. A reading of the complaint
itself belies these conclusions.
The complaint focuses on one specific fundamental legal right the right to a balanced and healthful
ecology which, for the first time in our nation's constitutional history, is solemnly incorporated in the
fundamental law. Section 16, Article II of the 1987 Constitution explicitly provides:
Sec. 16. The State shall protect and advance the right of the people to a balanced
and healthful ecology in accord with the rhythm and harmony of nature.
This right unites with the right to health which is provided for in the preceding
section of the same article:
Sec. 15. The State shall protect and promote the right to health of the people and
instill health consciousness among them.
While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and
State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the
civil and political rights enumerated in the latter. Such a right belongs to a different category of rights
altogether for it concerns nothing less than self-preservation and self-perpetuation aptly and fittingly
stressed by the petitioners the advancement of which may even be said to predate all governments
and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for
they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the
fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a
balanced and healthful ecology and to health are mandated as state policies by the Constitution itself,
thereby highlighting their continuing importance and imposing upon the state a solemn obligation to
preserve the first and protect and advance the second, the day would not be too far when all else would
be lost not only for the present generation, but also for those to come generations which stand to
inherit nothing but parched earth incapable of sustaining life.
The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing
the environment. During the debates on this right in one of the plenary sessions of the 1986
Constitutional Commission, the following exchange transpired between Commissioner Wilfrido Villacorta
and Commissioner Adolfo Azcuna who sponsored the section in question:
MR. VILLACORTA:
Does this section mandate the State to provide sanctions
against all forms of pollution air, water and noise
pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful (sic)
environment necessarily carries with it the correlative duty
of not impairing the same and, therefore, sanctions may be
provided for impairment of environmental balance. 12
The said right implies, among many other things, the judicious management and conservation of the
country's forests.
Without such forests, the ecological or environmental balance would be irreversiby disrupted.
Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as
well as the other related provisions of the Constitution concerning the conservation, development and
utilization of the country's natural resources, 13 then President Corazon C. Aquino promulgated on 10
June 1987 E.O. No. 192, 14 Section 4 of which expressly mandates that the Department of Environment
and Natural Resources "shall be the primary government agency responsible for the conservation,
management, development and proper use of the country's environment and natural resources,
specifically forest and grazing lands, mineral, resources, including those in reservation and watershed
areas, and lands of the public domain, as well as the licensing and regulation of all natural resources as
may be provided for by law in order to ensure equitable sharing of the benefits derived therefrom for
the welfare of the present and future generations of Filipinos." Section 3 thereof makes the following
statement of policy:
Sec. 3. Declaration of Policy. It is hereby declared the policy of the State to
ensure the sustainable use, development, management, renewal, and
conservation of the country's forest, mineral, land, off-shore areas and other
natural resources, including the protection and enhancement of the quality of the
environment, and equitable access of the different segments of the population to
the development and the use of the country's natural resources, not only for the
present generation but for future generations as well. It is also the policy of the
state to recognize and apply a true value system including social and
environmental cost implications relative to their utilization, development and
conservation of our natural resources.
This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of
1987, 15specifically in Section 1 thereof which reads:
Sec. 1. Declaration of Policy. (1) The State shall ensure, for the benefit of the
Filipino people, the full exploration and development as well as the judicious
disposition, utilization, management, renewal and conservation of the country's
forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural
resources, consistent with the necessity of maintaining a sound ecological balance
and protecting and enhancing the quality of the environment and the objective of
making the exploration, development and utilization of such natural resources
equitably accessible to the different segments of the present as well as future
generations.
(2) The State shall likewise recognize and apply a true value system that takes into
account social and environmental cost implications relative to the utilization,
development and conservation of our natural resources.
The above provision stresses "the necessity of maintaining a sound ecological balance and protecting
and enhancing the quality of the environment." Section 2 of the same Title, on the other hand,
specifically speaks of the mandate of the DENR; however, it makes particular reference to the fact of the
agency's being subject to law and higher authority. Said section provides:
Sec. 2. Mandate. (1) The Department of Environment and Natural Resources
shall be primarily responsible for the implementation of the foregoing policy.
(2) It shall, subject to law and higher authority, be in charge of carrying out the
State's constitutional mandate to control and supervise the exploration,
development, utilization, and conservation of the country's natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve as the
bases for policy formulation, and have defined the powers and functions of the DENR.
It may, however, be recalled that even before the ratification of the 1987 Constitution, specific statutes
already paid special attention to the "environmental right" of the present and future generations. On 6
June 1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152 (Philippine Environment
Code) were issued. The former "declared a continuing policy of the State (a) to create, develop, maintain
and improve conditions under which man and nature can thrive in productive and enjoyable harmony
with each other, (b) to fulfill the social, economic and other requirements of present and future
generations of Filipinos, and (c) to insure the attainment of an environmental quality that is conducive to
a life of dignity and well-being." 16 As its goal, it speaks of the "responsibilities of each generation as
trustee and guardian of the environment for succeeding generations." 17 The latter statute, on the other
hand, gave flesh to the said policy.
Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is as
clear as the DENR's duty under its mandate and by virtue of its powers and functions under E.O. No.
192 and the Administrative Code of 1987 to protect and advance the said right.
A denial or violation of that right by the other who has the corelative duty or obligation to respect or
protect the same gives rise to a cause of action. Petitioners maintain that the granting of the TLAs, which
they claim was done with grave abuse of discretion, violated their right to a balanced and healthful
ecology; hence, the full protection thereof requires that no further TLAs should be renewed or granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of the legal right or rights of the
other; and its essential elements are legal right of the plaintiff, correlative
obligation of the defendant, and act or omission of the defendant in violation of
said legal right. 18
It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint fails to
state a cause of action, 19 the question submitted to the court for resolution involves the sufficiency of
the facts alleged in the complaint itself. No other matter should be considered; furthermore, the truth of
falsity of the said allegations is beside the point for the truth thereof is deemed hypothetically admitted.
The only issue to be resolved in such a case is: admitting such alleged facts to be true, may the court
render a valid judgment in accordance with the prayer in the complaint? 20 In Militante vs.
Edrosolano, 21 this Court laid down the rule that the judiciary should "exercise the utmost care and
circumspection in passing upon a motion to dismiss on the ground of the absence thereof [cause of
action] lest, by its failure to manifest a correct appreciation of the facts alleged and deemed
hypothetically admitted, what the law grants or recognizes is effectively nullified. If that happens, there
is a blot on the legal order. The law itself stands in disrepute."
After careful examination of the petitioners' complaint, We find the statements under the introductory
affirmative allegations, as well as the specific averments under the sub-heading CAUSE OF ACTION, to be
adequate enough to show, prima facie, the claimed violation of their rights. On the basis thereof, they
may thus be granted, wholly or partly, the reliefs prayed for. It bears stressing, however, that insofar as
the cancellation of the TLAs is concerned, there is the need to implead, as party defendants, the grantees
thereof for they are indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy formulation or
determination by the executive or legislative branches of Government is not squarely put in issue. What
is principally involved is the enforcement of a right vis-a-vis policies already formulated and expressed in
legislation. It must, nonetheless, be emphasized that the political question doctrine is no longer, the
insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects
executive and legislative actions from judicial inquiry or review. The second paragraph of section 1,
Article VIII of the Constitution 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.
Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A. Cruz, a
distinguished member of this Court, says:
The first part of the authority represents the traditional concept of judicial power,
involving the settlement of conflicting rights as conferred as law. The second part
of the authority represents a broadening of judicial power to enable the courts of
justice to review what was before forbidden territory, to wit, the discretion of the
political departments of the government.
As worded, the new provision vests in the judiciary, and particularly the Supreme
Court, the power to rule upon even the wisdom of the decisions of the executive
 and the legislature and to declare their acts invalid for lack or excess of jurisdiction held that the granting of license does not create irrevocable rights, neither is it
because tainted with grave abuse of discretion. The catch, of course, is the property or property rights (People vs. Ong Tin, 54 O.G. 7576).
meaning of "grave abuse of discretion," which is a very elastic phrase that can
expand or contract according to the disposition of the judiciary.
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary: 26

In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:
. . . Timber licenses, permits and license agreements are the principal instruments
by which the State regulates the utilization and disposition of forest resources to
In the case now before us, the jurisdictional objection becomes even less tenable the end that public welfare is promoted. And it can hardly be gainsaid that they
and decisive. The reason is that, even if we were to assume that the issue merely evidence a privilege granted by the State to qualified entities, and do not
presented before us was political in nature, we would still not be precluded from vest in the latter a permanent or irrevocable right to the particular concession area
revolving it under the expanded jurisdiction conferred upon us that now covers, in and the forest products therein. They may be validly amended, modified, replaced
proper cases, even the political question. Article VII, Section 1, of the Constitution or rescinded by the Chief Executive when national interests so require. Thus, they
clearly provides: . . . are not deemed contracts within the purview of the due process of law clause
[See Sections 3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v.
Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302].
The last ground invoked by the trial court in dismissing the complaint is the non-impairment of contracts
clause found in the Constitution. The court a quo declared that:
Since timber licenses are not contracts, the non-impairment clause, which reads:
The Court is likewise of the impression that it cannot, no matter how we stretch
our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all Sec. 10. No law impairing, the obligation of contracts shall be passed. 27
existing timber license agreements in the country and to cease and desist from
receiving, accepting, processing, renewing or approving new timber license
cannot be invoked.
agreements. For to do otherwise would amount to "impairment of contracts"
abhored (sic) by the fundamental law. 24
In the second place, even if it is to be assumed that the same are contracts, the instant case does not
involve a law or even an executive issuance declaring the cancellation or modification of existing timber
We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping
licenses. Hence, the non-impairment clause cannot as yet be invoked. Nevertheless, granting further that
pronouncement. In the first place, the respondent Secretary did not, for obvious reasons, even invoke in
a law has actually been passed mandating cancellations or modifications, the same cannot still be
his motion to dismiss the non-impairment clause. If he had done so, he would have acted with utmost
stigmatized as a violation of the non-impairment clause. This is because by its very nature and purpose,
infidelity to the Government by providing undue and unwarranted benefits and advantages to the
such as law could have only been passed in the exercise of the police power of the state for the purpose
timber license holders because he would have forever bound the Government to strictly respect the said
of advancing the right of the people to a balanced and healthful ecology, promoting their health and
licenses according to their terms and conditions regardless of changes in policy and the demands of
enhancing the general welfare. In Abe vs. Foster Wheeler
public interest and welfare. He was aware that as correctly pointed out by the petitioners, into every
Corp. 28 this Court stated:
timber license must be read Section 20 of the Forestry Reform Code (P.D. No. 705) which provides:

The freedom of contract, under our system of government, is not meant to be

. . . Provided, That when the national interest so requires, the President may
absolute. The same is understood to be subject to reasonable legislative regulation
amend, modify, replace or rescind any contract, concession, permit, licenses or
aimed at the promotion of public health, moral, safety and welfare. In other
any other form of privilege granted herein . . .
words, the constitutional guaranty of non-impairment of obligations of contract is
limited by the exercise of the police power of the State, in the interest of public
Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a health, safety, moral and general welfare.
contract, property or a property right protested by the due process clause of the Constitution.
In Tan vs. Director of Forestry, 25 this Court held:
The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine American Life
Insurance Co. vs. Auditor General, 30 to wit:
. . . A timber license is an instrument by which the State regulates the utilization
and disposition of forest resources to the end that public welfare is promoted. A
Under our form of government the use of property and the making of contracts
timber license is not a contract within the purview of the due process clause; it is
are normally matters of private and not of public concern. The general rule is that
only a license or privilege, which can be validly withdrawn whenever dictated by
both shall be free of governmental interference. But neither property rights nor
public interest or public welfare as in this case.
contract rights are absolute; for government cannot exist if the citizen may at will
use his property to the detriment of his fellows, or exercise his freedom of
A license is merely a permit or privilege to do what otherwise would be unlawful, contract to work them harm. Equally fundamental with the private right is that of
and is not a contract between the authority, federal, state, or municipal, granting the public to regulate it in the common interest.
it and the person to whom it is granted; neither is it property or a property right,
nor does it create a vested right; nor is it taxation (37 C.J. 168). Thus, this Court
In short, the non-impairment clause must yield to the police power of the state. 31

Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could apply with
respect to the prayer to enjoin the respondent Secretary from receiving, accepting, processing, renewing
or approving new timber licenses for, save in cases of renewal, no contract would have as of yet existed
in the other instances. Moreover, with respect to renewal, the holder is not entitled to it as a matter of
right.

WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the challenged
Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is hereby set aside. The
petitioners may therefore amend their complaint to implead as defendants the holders or grantees of
the questioned timber license agreements.

No pronouncement as to costs.

SO ORDERED.
Republic of the Philippines In their Second Amended Petition, petitioners also claim that PD 1869 is contrary to the declared
SUPREME COURT national policy of the "new restored democracy" and the people's will as expressed in the 1987
Manila Constitution. The decree is said to have a "gambling objective" and therefore is contrary to Sections 11,
12 and 13 of Article II, Sec. 1 of Article VIII and Section 3 (2) of Article XIV, of the present Constitution (p.
3, Second Amended Petition; p. 21, Rollo).
EN BANC

The procedural issue is whether petitioners, as taxpayers and practicing lawyers (petitioner Basco being
also the Chairman of the Committee on Laws of the City Council of Manila), can question and seek the
annulment of PD 1869 on the alleged grounds mentioned above.
G.R. No. 91649 May 14, 1991
The Philippine Amusements and Gaming Corporation (PAGCOR) was created by virtue of P.D. 1067-A
ATTORNEYS HUMBERTO BASCO, EDILBERTO BALCE, SOCRATES MARANAN AND LORENZO dated January 1, 1977 and was granted a franchise under P.D. 1067-B also dated January 1, 1977 "to
SANCHEZ,petitioners, establish, operate and maintain gambling casinos on land or water within the territorial jurisdiction of
vs. the Philippines." Its operation was originally conducted in the well known floating casino "Philippine
PHILIPPINE AMUSEMENTS AND GAMING CORPORATION (PAGCOR), respondent. Tourist." The operation was considered a success for it proved to be a potential source of revenue to
fund infrastructure and socio-economic projects, thus, P.D. 1399 was passed on June 2, 1978 for PAGCOR
H.B. Basco & Associates for petitioners. to fully attain this objective.
Valmonte Law Offices collaborating counsel for petitioners.
Aguirre, Laborte and Capule for respondent PAGCOR. Subsequently, on July 11, 1983, PAGCOR was created under P.D. 1869 to enable the Government to
regulate and centralize all games of chance authorized by existing franchise or permitted by law, under
the following declared policy

Sec. 1. Declaration of Policy. It is hereby declared to be the policy of the State to centralize
PARAS, J.: and integrate all games of chance not heretofore authorized by existing franchises or
permitted by law in order to attain the following objectives:

A TV ad proudly announces:
(a) To centralize and integrate the right and authority to operate and conduct games of
chance into one corporate entity to be controlled, administered and supervised by the
"The new PAGCOR responding through responsible gaming." Government.

But the petitioners think otherwise, that is why, they filed the instant petition seeking to annul the
Philippine Amusement and Gaming Corporation (PAGCOR) Charter PD 1869, because it is allegedly
contrary to morals, public policy and order, and because
A. It constitutes a waiver of a right prejudicial to a third person with a right recognized by law.
It waived the Manila City government's right to impose taxes and license fees, which is
recognized by law;
B. For the same reason stated in the immediately preceding paragraph, the law has intruded
into the local government's right to impose local taxes and license fees. This, in contravention
of the constitutionally enshrined principle of local autonomy;
(b) To establish and operate clubs and casinos, for amusement and recreation, including
sports gaming pools, (basketball, football, lotteries, etc.) and such other forms of amusement
and recreation including games of chance, which may be allowed by law within the territorial
jurisdiction of the Philippines and which will: (1) generate sources of additional revenue to
fund infrastructure and socio-civic projects, such as flood control programs, beautification,
sewerage and sewage projects, Tulungan ng Bayan Centers, Nutritional Programs, Population
Control and such other essential public services; (2) create recreation and integrated facilities
which will expand and improve the country's existing tourist attractions; and (3) minimize, if
not totally eradicate, all the evils, malpractices and corruptions that are normally prevalent
on the conduct and operation of gambling clubs and casinos without direct government
involvement. (Section 1, P.D. 1869)

To attain these objectives PAGCOR is given territorial jurisdiction all over the Philippines. Under its
C. It violates the equal protection clause of the constitution in that it legalizes PAGCOR Charter's repealing clause, all laws, decrees, executive orders, rules and regulations, inconsistent
conducted gambling, while most other forms of gambling are outlawed, together with therewith, are accordingly repealed, amended or modified.
prostitution, drug trafficking and other vices;

D. It violates the avowed trend of the Cory government away from monopolistic and crony
economy, and toward free enterprise and privatization. (p. 2, Amended Petition; p. 7, Rollo)
It is reported that PAGCOR is the third largest source of government revenue, next to the Bureau of
Internal Revenue and the Bureau of Customs. In 1989 alone, PAGCOR earned P3.43 Billion, and directly
remitted to the National Government a total of P2.5 Billion in form of franchise tax, government's
income share, the President's Social Fund and Host Cities' share. In addition, PAGCOR sponsored other
socio-cultural and charitable projects on its own or in cooperation with various governmental agencies,
and other private associations and organizations. In its 3 1/2 years of operation under the present
administration, PAGCOR remitted to the government a total of P6.2 Billion. As of December 31, 1989,
PAGCOR was employing 4,494 employees in its nine (9) casinos nationwide, directly supporting the
livelihood of Four Thousand Four Hundred Ninety-Four (4,494) families.
But the petitioners, are questioning the validity of P.D. No. 1869. They allege that the same is "null and
void" for being "contrary to morals, public policy and public order," monopolistic and tends toward
"crony economy", and is violative of the equal protection clause and local autonomy as well as for
running counter to the state policies enunciated in Sections 11 (Personal Dignity and Human Rights), 12
(Family) and 13 (Role of Youth) of Article II, Section 1 (Social Justice) of Article XIII and Section 2
(Educational Values) of Article XIV of the 1987 Constitution.
This challenge to P.D. No. 1869 deserves a searching and thorough scrutiny and the most deliberate
consideration by the Court, involving as it does the exercise of what has been described as "the highest
and most delicate function which belongs to the judicial department of the government." (State v.
Manuel, 20 N.C. 144; Lozano v. Martinez, 146 SCRA 323).
As We enter upon the task of passing on the validity of an act of a co-equal and coordinate branch of the
government We need not be reminded of the time-honored principle, deeply ingrained in our
jurisprudence, that a statute is presumed to be valid. Every presumption must be indulged in favor of its
constitutionality. This is not to say that We approach Our task with diffidence or timidity. Where it is
clear that the legislature or the executive for that matter, has over-stepped the limits of its authority
under the constitution, We should not hesitate to wield the axe and let it fall heavily, as fall it must, on
the offending statute (Lozano v. Martinez, supra).
In Victoriano v. Elizalde Rope Workers' Union, et al, 59 SCRA 54, the Court thru Mr. Justice Zaldivar
underscored the
With particular regard to the requirement of proper party as applied in the cases before us,
We hold that the same is satisfied by the petitioners and intervenors because each of them
has sustained or is in danger of sustaining an immediate injury as a result of the acts or
measures complained of. And even if, strictly speaking they are not covered by the definition,
it is still within the wide discretion of the Court to waive the requirement and so remove the
impediment to its addressing and resolving the serious constitutional questions raised.
In the first Emergency Powers Cases, ordinary citizens and taxpayers were allowed to
question the constitutionality of several executive orders issued by President Quirino
although they were involving only an indirect and general interest shared in common with the
public. The Court dismissed the objection that they were not proper parties and ruled that
"the transcendental importance to the public of these cases demands that they be settled
promptly and definitely, brushing aside, if we must technicalities of procedure." We have
since then applied the exception in many other cases. (Association of Small Landowners in the
Philippines, Inc. v. Sec. of Agrarian Reform, 175 SCRA 343).
Having disposed of the procedural issue, We will now discuss the substantive issues raised.
Gambling in all its forms, unless allowed by law, is generally prohibited. But the prohibition of gambling
does not mean that the Government cannot regulate it in the exercise of its police power.
The concept of police power is well-established in this jurisdiction. It has been defined as the "state
authority to enact legislation that may interfere with personal liberty or property in order to promote
the general welfare." (Edu v. Ericta, 35 SCRA 481, 487) As defined, it consists of (1) an imposition or
restraint upon liberty or property, (2) in order to foster the common good. It is not capable of an exact
definition but has been, purposely, veiled in general terms to underscore its all-comprehensive embrace.
(Philippine Association of Service Exporters, Inc. v. Drilon, 163 SCRA 386).

. . . thoroughly established principle which must be followed in all cases where questions of Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future where it
constitutionality as obtain in the instant cases are involved. All presumptions are indulged in could be done, provides enough room for an efficient and flexible response to conditions and
favor of constitutionality; one who attacks a statute alleging unconstitutionality must prove circumstances thus assuming the greatest benefits. (Edu v. Ericta, supra)
its invalidity beyond a reasonable doubt; that a law may work hardship does not render it
unconstitutional; that if any reasonable basis may be conceived which supports the statute, it
It finds no specific Constitutional grant for the plain reason that it does not owe its origin to the charter.
will be upheld and the challenger must negate all possible basis; that the courts are not
Along with the taxing power and eminent domain, it is inborn in the very fact of statehood and
concerned with the wisdom, justice, policy or expediency of a statute and that a liberal
sovereignty. It is a fundamental attribute of government that has enabled it to perform the most vital
interpretation of the constitution in favor of the constitutionality of legislation should be
functions of governance. Marshall, to whom the expression has been credited, refers to it succinctly as
adopted. (Danner v. Hass, 194 N.W. 2nd 534, 539; Spurbeck v. Statton, 106 N.W. 2nd 660,
the plenary power of the state "to govern its citizens". (Tribe, American Constitutional Law, 323, 1978).
663; 59 SCRA 66; see also e.g. Salas v. Jarencio, 46 SCRA 734, 739 [1970]; Peralta v.
The police power of the State is a power co-extensive with self-protection and is most aptly termed the
Commission on Elections, 82 SCRA 30, 55 [1978]; and Heirs of Ordona v. Reyes, 125 SCRA 220,
"law of overwhelming necessity." (Rubi v. Provincial Board of Mindoro, 39 Phil. 660, 708) It is "the most
241-242 [1983] cited in Citizens Alliance for Consumer Protection v. Energy Regulatory Board,
essential, insistent, and illimitable of powers." (Smith Bell & Co. v. National, 40 Phil. 136) It is a dynamic
162 SCRA 521, 540)
force that enables the state to meet the agencies of the winds of change.

Of course, there is first, the procedural issue. The respondents are questioning the legal personality of
What was the reason behind the enactment of P.D. 1869?
petitioners to file the instant petition.

P.D. 1869 was enacted pursuant to the policy of the government to "regulate and centralize thru an
Considering however the importance to the public of the case at bar, and in keeping with the Court's
appropriate institution all games of chance authorized by existing franchise or permitted by law" (1st
duty, under the 1987 Constitution, to determine whether or not the other branches of government have
whereas clause, PD 1869). As was subsequently proved, regulating and centralizing gambling operations
kept themselves within the limits of the Constitution and the laws and that they have not abused the
in one corporate entity the PAGCOR, was beneficial not just to the Government but to society in
discretion given to them, the Court has brushed aside technicalities of procedure and has taken
general. It is a reliable source of much needed revenue for the cash strapped Government. It provided
cognizance of this petition. (Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas Inc. v. Tan, 163
funds for social impact projects and subjected gambling to "close scrutiny, regulation, supervision and
SCRA 371)
control of the Government" (4th Whereas Clause, PD 1869). With the creation of PAGCOR and the direct
intervention of the Government, the evil practices and corruptions that go with gambling will be
minimized if not totally eradicated. Public welfare, then, lies at the bottom of the enactment of PD 1896.
Petitioners contend that P.D. 1869 constitutes a waiver of the right of the City of Manila to impose taxes
and legal fees; that the exemption clause in P.D. 1869 is violative of the principle of local autonomy. They
must be referring to Section 13 par. (2) of P.D. 1869 which exempts PAGCOR, as the franchise holder
from paying any "tax of any kind or form, income or otherwise, as well as fees, charges or levies of
whatever nature, whether National or Local."
(2) Income and other taxes. a) Franchise Holder: No tax of any kind or form, income or
otherwise as well as fees, charges or levies of whatever nature, whether National or Local,
shall be assessed and collected under this franchise from the Corporation; nor shall any form
or tax or charge attach in any way to the earnings of the Corporation, except a franchise tax
of five (5%) percent of the gross revenues or earnings derived by the Corporation from its
operations under this franchise. Such tax shall be due and payable quarterly to the National
Government and shall be in lieu of all kinds of taxes, levies, fees or assessments of any kind,
nature or description, levied, established or collected by any municipal, provincial or national
government authority (Section 13 [2]).
Their contention stated hereinabove is without merit for the following reasons:
(a) The City of Manila, being a mere Municipal corporation has no inherent right to impose taxes (Icard v.
City of Baguio, 83 Phil. 870; City of Iloilo v. Villanueva, 105 Phil. 337; Santos v. Municipality of Caloocan, 7
SCRA 643). Thus, "the Charter or statute must plainly show an intent to confer that power or the
municipality cannot assume it" (Medina v. City of Baguio, 12 SCRA 62). Its "power to tax" therefore must
always yield to a legislative act which is superior having been passed upon by the state itself which has
the "inherent power to tax" (Bernas, the Revised [1973] Philippine Constitution, Vol. 1, 1983 ed. p. 445).
(b) The Charter of the City of Manila is subject to control by Congress. It should be stressed that
"municipal corporations are mere creatures of Congress" (Unson v. Lacson, G.R. No. 7909, January 18,
1957) which has the power to "create and abolish municipal corporations" due to its "general legislative
powers" (Asuncion v. Yriantes, 28 Phil. 67; Merdanillo v. Orandia, 5 SCRA 541). Congress, therefore, has
the power of control over Local governments (Hebron v. Reyes, G.R. No. 9124, July 2, 1950). And if
Congress can grant the City of Manila the power to tax certain matters, it can also provide for
exemptions or even take back the power.
(c) The City of Manila's power to impose license fees on gambling, has long been revoked. As early as
1975, the power of local governments to regulate gambling thru the grant of "franchise, licenses or
permits" was withdrawn by P.D. No. 771 and was vested exclusively on the National Government, thus:
Sec. 1. Any provision of law to the contrary notwithstanding, the authority of chartered cities
and other local governments to issue license, permit or other form of franchise to operate,
maintain and establish horse and dog race tracks, jai-alai and other forms of gambling is
hereby revoked.
Sec. 2. Hereafter, all permits or franchises to operate, maintain and establish, horse and dog
race tracks, jai-alai and other forms of gambling shall be issued by the national government
upon proper application and verification of the qualification of the applicant . . .
Therefore, only the National Government has the power to issue "licenses or permits" for the operation
of gambling. Necessarily, the power to demand or collect license fees which is a consequence of the
issuance of "licenses or permits" is no longer vested in the City of Manila.
(d) Local governments have no power to tax instrumentalities of the National Government. PAGCOR is a
government owned or controlled corporation with an original charter, PD 1869. All of its shares of stocks
are owned by the National Government. In addition to its corporate powers (Sec. 3, Title II, PD 1869) it
also exercises regulatory powers thus:
Sec. 9. Regulatory Power. The Corporation shall maintain a Registry of the affiliated
entities, and shall exercise all the powers, authority and the responsibilities vested in the
Securities and Exchange Commission over such affiliating entities mentioned under the
preceding section, including, but not limited to amendments of Articles of Incorporation and
By-Laws, changes in corporate term, structure, capitalization and other matters concerning
the operation of the affiliated entities, the provisions of the Corporation Code of the
Philippines to the contrary notwithstanding, except only with respect to original
incorporation.
PAGCOR has a dual role, to operate and to regulate gambling casinos. The latter role is governmental,
which places it in the category of an agency or instrumentality of the Government. Being an
instrumentality of the Government, PAGCOR should be and actually is exempt from local taxes.
Otherwise, its operation might be burdened, impeded or subjected to control by a mere Local
government.
The states have no power by taxation or otherwise, to retard, impede, burden or in any
manner control the operation of constitutional laws enacted by Congress to carry into
execution the powers vested in the federal government. (MC Culloch v. Marland, 4 Wheat
316, 4 L Ed. 579)
This doctrine emanates from the "supremacy" of the National Government over local governments.
Justice Holmes, speaking for the Supreme Court, made reference to the entire absence of
power on the part of the States to touch, in that way (taxation) at least, the instrumentalities
of the United States (Johnson v. Maryland, 254 US 51) and it can be agreed that no state or
political subdivision can regulate a federal instrumentality in such a way as to prevent it from
consummating its federal responsibilities, or even to seriously burden it in the accomplishment
of them. (Antieau, Modern Constitutional Law, Vol. 2, p. 140, emphasis supplied)
Otherwise, mere creatures of the State can defeat National policies thru extermination of what local
authorities may perceive to be undesirable activities or enterprise using the power to tax as "a tool for
regulation" (U.S. v. Sanchez, 340 US 42).
The power to tax which was called by Justice Marshall as the "power to destroy" (Mc Culloch v.
Maryland, supra) cannot be allowed to defeat an instrumentality or creation of the very entity which has
the inherent power to wield it.
(e) Petitioners also argue that the Local Autonomy Clause of the Constitution will be violated by P.D.
1869. This is a pointless argument. Article X of the 1987 Constitution (on Local Autonomy) provides:
 Sec. 5. Each local government unit shall have the power to create its own source of revenue
and to levy taxes, fees, and other charges subject to such guidelines and limitation as the
congress may provide, consistent with the basic policy on local autonomy. Such taxes, fees
and charges shall accrue exclusively to the local government. (emphasis supplied)
The power of local government to "impose taxes and fees" is always subject to "limitations" which
Congress may provide by law. Since PD 1869 remains an "operative" law until "amended, repealed or
revoked" (Sec. 3, Art. XVIII, 1987 Constitution), its "exemption clause" remains as an exception to the
exercise of the power of local governments to impose taxes and fees. It cannot therefore be violative but
rather is consistent with the principle of local autonomy.
Besides, the principle of local autonomy under the 1987 Constitution simply means "decentralization" (III
Records of the 1987 Constitutional Commission, pp. 435-436, as cited in Bernas, The Constitution of the
Republic of the Philippines, Vol. II, First Ed., 1988, p. 374). It does not make local governments sovereign
within the state or an "imperium in imperio."
Local Government has been described as a political subdivision of a nation or state which is
constituted by law and has substantial control of local affairs. In a unitary system of
government, such as the government under the Philippine Constitution, local governments
can only be an intra sovereign subdivision of one sovereign nation, it cannot be
an imperium in imperio. Local government in such a system can only mean a measure of
decentralization of the function of government. (emphasis supplied)
As to what state powers should be "decentralized" and what may be delegated to local government units
remains a matter of policy, which concerns wisdom. It is therefore a political question. (Citizens Alliance
for Consumer Protection v. Energy Regulatory Board, 162 SCRA 539).
What is settled is that the matter of regulating, taxing or otherwise dealing with gambling is a State
concern and hence, it is the sole prerogative of the State to retain it or delegate it to local governments.
require situations which are different in fact or opinion to be treated in law as though they were the
same (Gomez v. Palomar, 25 SCRA 827).
Just how P.D. 1869 in legalizing gambling conducted by PAGCOR is violative of the equal protection is not
clearly explained in the petition. The mere fact that some gambling activities like cockfighting (P.D 449)
horse racing (R.A. 306 as amended by RA 983), sweepstakes, lotteries and races (RA 1169 as amended by
B.P. 42) are legalized under certain conditions, while others are prohibited, does not render the
applicable laws, P.D. 1869 for one, unconstitutional.
If the law presumably hits the evil where it is most felt, it is not to be overthrown because
there are other instances to which it might have been applied. (Gomez v. Palomar, 25 SCRA
827)
The equal protection clause of the 14th Amendment does not mean that all occupations
called by the same name must be treated the same way; the state may do what it can to
prevent which is deemed as evil and stop short of those cases in which harm to the few
concerned is not less than the harm to the public that would insure if the rule laid down were
made mathematically exact. (Dominican Hotel v. Arizona, 249 US 2651).
Anent petitioners' claim that PD 1869 is contrary to the "avowed trend of the Cory Government away
from monopolies and crony economy and toward free enterprise and privatization" suffice it to state
that this is not a ground for this Court to nullify P.D. 1869. If, indeed, PD 1869 runs counter to the
government's policies then it is for the Executive Department to recommend to Congress its repeal or
amendment.
The judiciary does not settle policy issues. The Court can only declare what the law is and not
what the law should be.1wphi1 Under our system of government, policy issues are within
the domain of the political branches of government and of the people themselves as the
repository of all state power. (Valmonte v. Belmonte, Jr., 170 SCRA 256).

As gambling is usually an offense against the State, legislative grant or express charter power On the issue of "monopoly," however, the Constitution provides that:
is generally necessary to empower the local corporation to deal with the subject. . . . In the
absence of express grant of power to enact, ordinance provisions on this subject which are
Sec. 19. The State shall regulate or prohibit monopolies when public interest so requires. No
inconsistent with the state laws are void. (Ligan v. Gadsden, Ala App. 107 So. 733 Ex-Parte
combinations in restraint of trade or unfair competition shall be allowed. (Art. XII, National
Solomon, 9, Cals. 440, 27 PAC 757 following in re Ah You, 88 Cal. 99, 25 PAC 974, 22 Am St.
Economy and Patrimony)
Rep. 280, 11 LRA 480, as cited in Mc Quinllan Vol. 3 Ibid, p. 548, emphasis supplied)

It should be noted that, as the provision is worded, monopolies are not necessarily prohibited by the
Petitioners next contend that P.D. 1869 violates the equal protection clause of the Constitution, because
Constitution. The state must still decide whether public interest demands that monopolies be regulated
"it legalized PAGCOR conducted gambling, while most gambling are outlawed together with
or prohibited. Again, this is a matter of policy for the Legislature to decide.
prostitution, drug trafficking and other vices" (p. 82, Rollo).

On petitioners' allegation that P.D. 1869 violates Sections 11 (Personality Dignity) 12 (Family) and 13
We, likewise, find no valid ground to sustain this contention. The petitioners' posture ignores the well-
(Role of Youth) of Article II; Section 13 (Social Justice) of Article XIII and Section 2 (Educational Values) of
accepted meaning of the clause "equal protection of the laws." The clause does not preclude
Article XIV of the 1987 Constitution, suffice it to state also that these are merely statements of principles
classification of individuals who may be accorded different treatment under the law as long as the
and, policies. As such, they are basically not self-executing, meaning a law should be passed by Congress
classification is not unreasonable or arbitrary (Itchong v. Hernandez, 101 Phil. 1155). A law does not have
to clearly define and effectuate such principles.
to operate in equal force on all persons or things to be conformable to Article III, Section 1 of the
Constitution (DECS v. San Diego, G.R. No. 89572, December 21, 1989).
In general, therefore, the 1935 provisions were not intended to be self-executing principles
ready for enforcement through the courts. They were rather directives addressed to the
The "equal protection clause" does not prohibit the Legislature from establishing classes of individuals or
executive and the legislature. If the executive and the legislature failed to heed the directives
objects upon which different rules shall operate (Laurel v. Misa, 43 O.G. 2847). The Constitution does not
of the articles the available remedy was not judicial or political. The electorate could express
 their displeasure with the failure of the executive and the legislature through the language of
the ballot. (Bernas, Vol. II, p. 2)

Every law has in its favor the presumption of constitutionality (Yu Cong Eng v. Trinidad, 47 Phil. 387;
Salas v. Jarencio, 48 SCRA 734; Peralta v. Comelec, 82 SCRA 30; Abbas v. Comelec, 179 SCRA 287).
Therefore, for PD 1869 to be nullified, it must be shown that there is a clear and unequivocal breach of
the Constitution, not merely a doubtful and equivocal one. In other words, the grounds for nullity must
be clear and beyond reasonable doubt. (Peralta v. Comelec, supra) Those who petition this Court to
declare a law, or parts thereof, unconstitutional must clearly establish the basis for such a declaration.
Otherwise, their petition must fail. Based on the grounds raised by petitioners to challenge the
constitutionality of P.D. 1869, the Court finds that petitioners have failed to overcome the presumption.
The dismissal of this petition is therefore, inevitable. But as to whether P.D. 1869 remains a wise
legislation considering the issues of "morality, monopoly, trend to free enterprise, privatization as well as
the state principles on social justice, role of youth and educational values" being raised, is up for
Congress to determine.

As this Court held in Citizens' Alliance for Consumer Protection v. Energy Regulatory Board, 162 SCRA 521

Presidential Decree No. 1956, as amended by Executive Order No. 137 has, in any case, in its
favor the presumption of validity and constitutionality which petitioners Valmonte and the
KMU have not overturned. Petitioners have not undertaken to identify the provisions in the
Constitution which they claim to have been violated by that statute. This Court, however, is
not compelled to speculate and to imagine how the assailed legislation may possibly offend
some provision of the Constitution. The Court notes, further, in this respect that petitioners
have in the main put in question the wisdom, justice and expediency of the establishment of
the OPSF, issues which are not properly addressed to this Court and which this Court may not
constitutionally pass upon. Those issues should be addressed rather to the political
departments of government: the President and the Congress.

Parenthetically, We wish to state that gambling is generally immoral, and this is precisely so when the
gambling resorted to is excessive. This excessiveness necessarily depends not only on the financial
resources of the gambler and his family but also on his mental, social, and spiritual outlook on life.
However, the mere fact that some persons may have lost their material fortunes, mental control,
physical health, or even their lives does not necessarily mean that the same are directly attributable to
gambling. Gambling may have been the antecedent, but certainly not necessarily the cause. For the same
consequences could have been preceded by an overdose of food, drink, exercise, work, and even sex.

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.